Chapter 6 - Legal aid in outer-metropolitan, regional, rural and remote areas
6.1
This chapter discusses:
-
the particular issues and barriers affecting
those people living in outer-metropolitan, regional, rural and remote (RRR)
areas of Australia in accessing the legal system; and
-
what might be done to better provide access to
justice for those living in RRR areas.
Particular issues facing people in rural, regional and remote areas
6.2
The Committee's inquiry into legal aid in 1998
identified a range of difficulties experienced by people living in RRR areas.
While the Committee noted that many of the problems experienced by such people
were similar to those experienced by people in metropolitan areas, additional
problems were prevalent in RRR areas.[392] Some of the
issues brought to the Committee's attention were similar to those raised by
submissions and witnesses in the current inquiry. In its 1998 report, the
Committee recommended that the Commonwealth and state/territory governments
give priority to the provision of appropriate legal aid services to meet the
specific needs of different communities, including RRR communities.[393]
6.3
Evidence received by the Committee in the current
inquiry suggested that there are a number of issues affecting people living in
RRR communities which are beyond the legal needs they share with people in
metropolitan areas. Several submissions argued that the current arrangements
for achieving national equity and uniform access to justice do not meet the
legal assistance needs of RRR communities[394] and that
any existing inadequacies in the legal aid system are greatly magnified in RRR
areas.[395]
6.4
Although it has been recognised that there are common needs and experiences in
different RRR communities, there is also a diverse range of issues facing
individual members of these communities. People living in RRR communities may
not necessarily have uniform characteristics and needs. This is of itself
important in developing an understanding of the services that are required in
RRR communities.[396]
6.5
Some evidence suggested that diversity of, and within, communities
means that any national guiding principles of legal aid must take into account
the varied needs of community members. In the broader context, national equity and uniformity are
not necessarily the same thing. Equity might in some circumstances require that
individuals and communities be treated differently within the legal aid system.
Indeed, individuals may have different needs even when faced with the same
legal problem; such needs should be met in order for an individual to have
equity of access when compared with other individuals.[397]
6.6
Several submissions received by the Committee
identified a range of difficulties experienced by people with legal needs in
RRR communities.[398]
While it may be inevitable to some extent that those living in RRR areas will
generally find it more difficult to access legal services than those living in
more populous areas with greater resources, the Law Institute Victoria argued
that problems for people in RRR areas are often unduly intensified:
chronic under-funding of legal aid services exacerbates this
problem. People living in rural and remote areas are disproportionately
disadvantaged by gaps in the legal aid funding scheme.[399]
6.7
The Committee
received evidence that one of the major barriers to access to justice is the
fact that large geographical areas in Australia
are not covered by legal aid or free legal services. For example, it was
submitted that in NSW:
Legal Aid offices and community legal centres exist in some
areas of the State, but they are spread too thinly in rural, regional and
remote areas. Many services are operating beyond their resource capacity,
particularly along the fast growth areas of the coastline where services cannot
keep up with the demographic changes. In the more remote parts of each region,
there are insufficient workers to cope with the level of demand. Outreach
transport costs are high, with travel times making many outreaches unviable.[400]
6.8
Mr Greg
Connellan from the Victorian Council for
Civil Liberties told the Committee about the need for services in rural areas
of Victoria:
I was last year
looking at access to legal services in the eastern part of Victoria: the Latrobe Valley out to the New South Wales border. There was a community legal centre
there, based at Morwell, servicing pretty much from Phillip Island right across
to the New South Wales border. It is a huge area of Gippsland that they were
servicing. They had, effectively, a staff of three. They tried to employ three
lawyers to do that. They were down on resources and they were trying to run
outreach projects right across that large area. So that is one example of an
area of Victoria where there is a great need for further
services.[401]
6.9
Mr Connellan said that the situation was similar in western Victoria:
There is a community
legal centre in Warrnambool and there is one in Ballarat, but they cover a huge
area. That is not to say that there are not legal aid services in those
areasthere arebut they do not always correspond completely; they do not
always cover the same areas of work. But also there are situations, say, in
family law with child protection stuff, where you have the legal interests of
parentsperhaps more than one parentand sometimes of grandparents and of
children to be addressed, so you need multiple services to be able to address
all those without conflict.[402]
6.10
The Committee heard that Western
Australia also experiences difficulties:
[WA] has in its rural and remote centres relatively large
concentrations of at risk groups, including young families, aborigines and
people from non-English speaking backgrounds. However Legal Aid offices are
only found in four centres representing four regions (Bunbury (South West
region), Kalgoorlie (Goldfields
region), Port Hedland (Pilbara region) and Broome (Kimberley
region) as well as a para legal outpost on Christmas Island.
There are no Legal Aid offices in the Great Southern, Mid-West, Gascoyne or
Murchison regions. In a number of centres, including Carnarvon where there is a
magistrates court, there are no private lawyers. Access to legal services is
effectively out of reach of citizens seeking to resolve legal disputes or
assert their legal rights.[403]
6.11
In the Northern Territory:
There are no legal services based outside the urban centres of Darwin,
Katherine and Alice Springs,
other than the Miwatj Legal Service which is based in Nhulunbuy and provides
services to indigenous people in that region.
There are no private solicitors based outside the urban centres
of Darwin, Katherine
and Alice Springs.[404]
6.12
Other barriers in RRR areas include the geographic
constraints in accessing legal assistance (for example, tyranny of distance,
community and social isolation, limited or no public transport, lack of
reliable private transport or dangerous roads) and the high costs of accessing
services, including transport costs and STD telephone costs.[405] Even people
in RRR areas who are successful in obtaining legal aid are disadvantaged since:
their costs of running a case are higher (due to additional
travelling costs to attend counselling and expert appointments and court, or
the need to hire town agents to make court appearances), yet legal aid payments
do not take these additional expenses into account. In the case of family law,
regional, rural and remote recipients of legal aid may reach the $10,000
funding cap more quickly than those in metropolitan areas.[406]
6.13
Those living in RRR areas also have problems obtaining
legal advice and other associated services. Some specific difficulties include:
-
lack of services for special needs groups
(including Indigenous people and women);[407]
-
lack of private lawyers in RRR areas willing to
undertake legal aid work, due to restrictions imposed by LACs (preferred
supplier regimes) and the well-documented departure of private practitioners
from legal aid work in these areas;[408]
-
limited availability of legal and other
services, as well as lawyers and courts;
-
lack of access to ancillary services, such as
counselling services;
-
unavailability of quality experts to provide
advice, reports and evidence in court; and
-
inability to obtain interpreters for
face-to-face appointments.[409]
6.14
The Committee also heard evidence about the lack of lawyers
with specialist expertise in certain areas of law in RRR areas. For example, Mr
Mark Woods of
the Law Institute Victoria
submitted that, in RRR areas of Victoria,
expertise in certain areas of law does not exist:
it is simply not financially viable for us to have lawyers in
the firm develop expertise in social security law, debt harassment law
[disability support law and consumer protection law] Likewise, there is not a
sufficient number of people to justify community legal centres having lawyers
who develop that field of expertise.[410]
6.15
There are also problems arising from the nature of
small communities, such as:
-
lack of privacy and compromise of
confidentiality in small communities; and
-
conservative attitudes that may make people
reluctant to pursue their legal rights.
6.16
Several submissions and witnesses emphasised the
significance of the conflict of interest problem. Many people are unable to
access legal advice in their own regional centre or town because local legal
aid services have already advised the other party to the matter. The only
options available for advice might be to access a legal aid service over the
telephone, or travel a significant distance to seek face-to-face legal advice.
The conflict of interest issue may also mean that one of the parties to the
matters has no choice but to self-represent.[411]
6.17
The Committee also heard that residents of RRR areas of
Australia are in dire need of expanded resources for free legal assistance and
that CLCs in RRR areas have large areas of unmet need due to their low-base
funding levels.[412]
Specific problems facing CLCs in RRR areas include:
-
difficulties in recruiting and retaining
experienced staff;
-
a small pool of volunteers from which to draw;
-
resource allocations which do not include
adequate consideration of the additional costs of running outreach programs;
and
-
an expectation that CLCs with regional
responsibilities will service their region with local level funding.[413]
6.18
In rural NSW, for example:
Community Legal Centres are in dire financial circumstances.
In particular, those CLCs set up under the 1996 Commonwealth Justice Statement
program receive less core funding than other CLCs in NSW. Most of those centres
are in the more remote parts of the State. They do not receive a loading on
their Community Legal Service Funding Program Grants for the additional
transport and telecommunication costs incurred as a result of operating
outreaches and 1800 FreeCall telephone advice services. Community legal centres
in rural areas are further hampered by the fact that they cannot access the
same numbers of law students and lawyer volunteers that some city centres are
able to utilise.
The more remote the service, the greater the difficulty in
attracting staff. Given the low pay on offer, many poorly funded community
legal centres may take months to fill vacancies for solicitors. This is
especially true for Rural Women's Outreach Services, which often have extreme
difficulty in attracting experienced women family lawyers to the bush.[414]
6.19
Unique challenges may also be encountered by lawyers
working in RRR areas. Some of these challenges include:
-
limited access to legal information resources
and services;
-
limited opportunities for specialisation;
-
pressures of community attitudes and
expectations;
-
limited infrastructure (for example, limited
access to court and tribunal facilities);
-
difficulties in achieving economies of scale;
-
significant ethical dilemmas such as conflict of
interest and confidentiality issues; and
-
geographic isolation.[415]
How to address problems in rural, regional and remote areas
6.20
Possible ways to address the problems experienced by
those living in RRR areas include:
-
current initiatives of the Commonwealth
Government;
-
assistance for lawyers in RRR areas; and
These are addressed in
turn below.
Current Commonwealth Government
initiatives
6.21
While increasing attention is being paid to the needs
and interests of people living in RRR areas, moves to actually enhance legal
and legal-related services in such communities have been relatively limited.[416] While some
Commonwealth initiatives have been implemented with the aim of improving
services in RRR areas, the vast majority of submissions to the Committee in
this inquiry claim that the Commonwealth Government has not done enough to
adequately address the needs of those living in RRR communities.
6.22
In its submission to the Committee, the Attorney-Generals
Department recognised that people in RRR areas often encounter greater
difficulty accessing appropriate legal services than people living in
metropolitan centres due to geographic constraints and limited legal services.
It also stated that in order to address these problems, the Commonwealth
provides funding to over 30 community legal services in RRR Australia.[417]
6.23
The Commonwealth Government launched its Regional Law
Hotline (the Hotline) in September 2001. The Hotline is a toll-free,
confidential telephone service available to people living in designated RRR
areas and its objective is to provide family law system information as well as
general legal information and basic legal advice.[418]
6.24
At the second public hearing in Canberra,
a representative from the Attorney-General's Department indicated that it
planned to expand the Hotline in the near future:
the Attorney-General
has now made a decision that we want to expand the coverage of Regional Law
Hotline. It has up to now been in 14 designated regions, and we want to fill in
the gaps and make sure that all regional areas of Australia are covered. To do that we are expanding
the role of the legal aid commissions in providing the legal advice component
of the Regional Law Hotline and phasing out the involvement of the community
legal services. They will continue to be involved until 30 June this year but
after that the legal aid commissions we are talking to about taking over the
full role will be providing the legal advice component. Up until now it has
been a mixture of commissions and community legal services. That will enable us
to expand the coverage of the service, and we will be able to do more work in
making sure there is community awareness of the service availability.[419]
6.25
The Departmental representative continued:
The hotline
infrastructure will not change: it will continue to go to the same two
regionally based call centres that are used for both the Family Law Hotline and
the Regional Law Hotline. That will enable us to have national consistency for
waiting times, and basic information about family law can be provided by the
hotline service providers who first answer the call. It is when people need
information about other areas of law or legal advice itself that they are
referred to a legal advice provider. That is the role that some of the
community legal centres have been playing. That will now be just the legal aid
commissions.[420]
6.26 The representative also advised that the
changes to the Hotline would not involve an increase in funding:
It is the same funding
but a more efficient use of the funding, because we are not spreading it around
to the community legal services, which had quite limited geographical coverage
when compared with the legal aid commissions.[421]
6.27
Some submissions and witnesses at public hearings questioned
the viability of the Hotline as it currently operates. For example:
It is the common view of [seven of the CLCs participating in the
Hotline project] and the National Rural, Regional and Remote Network of
Community Legal Centres, that the Regional Law Hotline project has completely
failed to meet its stated objectives and the expectations of the
Attorney-Generals Department during its first year of operation.[422]
6.28
Mr Bill
Grant of the Legal Aid Commission of NSW was
equally blunt:
[The Commonwealth LawOnline program and the Regional Law
Hotline] is a total waste of money. It does not deliver the service it is
supposed to deliver. We have had this discussion at officer level many times:
if they rolled that money into LawAccess, we could provide a better service. We
already provide an enormous amount of advice in Commonwealth family law through
the LawAccess advice line. To have a competing service, if you like, is not
complementary; it is confusing. We are all focusing on this one service, and
that is the view of commissions right across this country. All the commissions
either participate in or have a legal aid help line.[423]
6.29
The Hotline has also been described as a superfluous
adjunct to the comprehensive telephone advice services already provided by many
regional Community Legal Centres and Legal Aid Commissions directly to the
residents of their catchment areas.[424]
6.30
The need to utilise resources in a more constructive
way and innovatively overcome the barriers of distance and isolation in RRR
areas is seen to be of greater importance than a telephone service where a
solicitor is tied to a central office and its dedicated phone line which does
not allow the flexibility ideally sought by rural, regional and remote
Community Legal Centres and the communities they serve.[425] As Ms
Julie Bishop
from the National Association of Community Legal Centres told the Committee at
the Sydney
hearing:
we feel that, while
the money provided to legal centres through the Regional Law Hotline has been
effectively used, the model itself has not been particularly effective. This is
where travel costs are related. It is the legal centres experience rather than
belief that the outreach services, while more expensive in the short term, are
much more effective, both in terms of dollars spent and outcome, than trying to
resolve particularly rural and regional issues through telephone calls.[426]
Use of technology
6.31
Several submissions received by the Committee made the
point that the use of technology to address the problem of lack of legal and
related services in RRR areas is not a solution in itself.[427] Instead,
technology should be seen as being complementary to other more direct forms of
legal assistance.[428]
Technology for those living in RRR communities can be an unfamiliar concept and
the delivery of services through technology might be viewed by some as
impersonal and threatening. Issues of training, costs and ongoing support may
arise since using technology is often not a part of life in RRR areas.[429]
6.32
Current strategies such as legal assistance telephone
services and the internet are beneficial for some people and in some types of
matters. However, some submissions and witnesses suggested that telecommunications
services cannot adequately meet every need in RRR communities and should not be
used as a replacement for face-to-face services and legal representation,
particularly in more complex matters. For example, the Illawarra Legal Centre
submitted that:
It is the experience of this Centre that telecommunications
solutions alone do not meet the need for legal assistance. Telecommunications
services cannot undertake preventative legal work (eg community legal
education) and do not provide a visible presence in the community to establish
trust and cooperative relationships with other human service organisations.
They do not replace face to face contact with clients who for a variety of
reasons do not or cannot use the telephone (those clients are more likely to
experience disadvantage generally).[430]
6.33
The Tasmanian Association of Community Legal Centres
made a similar observation:
Telephone services are very beneficial for some areas of law and
for some citizens, but for many a telephone call can be as confusing as a third
year university reading text.[431]
6.34
While technology may allow a limited level of service
delivery to some members of the community, it is not an appropriate vehicle for
people experiencing multiple disadvantage.[432] Concern has
been expressed about the capacity of many of those in need to access
alternatives to face-to-face advice:
I think there are some general accessibility problems with the
Internet. Some of our people are in a chaotic state; they just would not get
there. [433]
6.35
Some people will not have the skills or the capacity to
act on the basis of one-off quick advices for a range of reasons, including
poor literacy, limited education, poor English language skills, disability and
lack of confidence to deal with the legal system.[434] Such people
may only feel comfortable accessing legal services where they have developed a
relationship of trust with the service provider.[435] Technology
may be ' unfamiliar and the delivery of
non-face to face services may be seen as threatening and unsupportive'.[436]
6.36
There may also be problems with the content of legal
information that is available through technological means:
the difficulty is that there has not been the content there
for people to utilise. They can use it for Internet banking and other general
information services but there has been a limitI mean in terms of the lawin
access to plain language, accessible information covering a broad range of
issues that specifically have a rural and regional theme, and that is
essentially what we are trying to provide.[437]
6.37
The Law Institute Victoria
made a pertinent point about why governments are pushing technology to
"solve" the problem of lack of access to justice:
Such developments are to be welcomed but it should not be
forgotten that they are only necessary because of the gaps that exist in the
legal aid system.[438]
6.38
Indeed:
The concept of access to justice includes access to legal
materials, information, advice, assistance in settling documents as well as
assistance by way of representation. There is no doubt that improvements have
been made in respect of improving access to legal materials, information and
telephone advice. These improvements have, to a large extent, been facilitated
by the widespread use of the Internet. In particular Victoria
Legal Aids (VLA) web-site provides a wealth of valuable information sheets
that can be accessed free of charge.[439]
6.39
Despite the reservations many have about the capacity
of technology to provide access to justice, some submissions acknowledged its
potential benefit in some situations. The National Network of Womens Legal
Services stated:
Video-conferencing, internet access and hotline advice services
are ways of providing legal services to communities and groups of women who
were mostly unserviced in the past such as women living in regional, rural and
remote communities.[440]
6.40
The Victoria Law Foundation argued that innovative ways
of providing legal information 'can enhance equitable access to justice' and
that:
High-quality plain-language legal information should target
areas of need, such as rural, regional and remote communities. Effective legal
information supports self-help and eases the burden on legal services.
Activities and projects that engage the public with law and the legal system
are also important parts of a strategy to improve the quality and access to
legal services for all Australians. [441]
6.41
Mr Sam
Biondo from the Fitzroy Legal Service argued
that videoconferencing facilities may be particularly meritorious in RRR areas
if personal advice services are not available:
On the technology continuum, the first option would always be a
live person to talk to, with an interpreter. Many of our clients have enough
difficulty navigating their way around written pamphlets, let alone having the
strength to walk in and talk to a lawyer. If the technology were available,
because of the particular nature of the problems that people might have, I
think videoconferencing might provide access in rural and remote areas. The
Internet would provide some basic information for workers in agencies to access
and distribute. Videoconferencing may have some suitable applications.[442]
6.42
Videoconferencing is likely to be more cost-effective
than reliance on lawyers travelling long distances to more remote areas. It may
also provide a more sensitive means of communicating with clients who find
themselves with complicated and perhaps distressing issues than a disembodied
voice over the phone.[443]
6.43
Telephone advice services also have their place and may
be beneficial in some circumstances, according to Mr
Biondo:
At a bare minimum, telephone accessibility would be a great
assistance to people who might be in police custody, say. It is very difficult
to get a lawyer at 10 oclock on a
Friday night or two oclock on
Saturday morning. People are not aware of their rights. You do not know what
peoples circumstances are, and they should be entitled to a legal adviser.
There are schemes established in the United
Kingdom for the provision of lawyers in
police stations.[444]
6.44
A submission from the Victoria Law Foundation referred
to its Rural Law Online project, which is an interactive website designed to
provide access to free, user-friendly, plain-language information about law for
primary producers and their families.[445] In essence,
the aim of Rural Law Online is to bring together information from a variety of
media on relevant areas of the law, provide links to legal referral services
and resources, and feature discussion forums on hot topics of immediate
relevance to RRR residents so that residents in these areas can share their
experiences, knowledge and expertise with each other.[446]
6.45
At the Melbourne
hearing, Mr Richard
Coverdale of the Victoria Law Foundation
stated that the project:
is essentially about providing an adjunct or support to the
provision of direct legal advice support and should not be seen as being
instead of the provision of direct legal support to individuals. But, having
said that, it is important that people are empowered with information so that
they can best make judgments themselves across a whole range of areas of law.[447]
6.46
Mr Coverdale
also pointed out that the advantage of online services is that they can be
updated regularly. The Victoria Law Foundation project is mainly targeted at
farmers who are increasingly dealing with more and more complex regulations
and legislation and require information across a huge range of areas of law.[448] However,
the content of the service covers subjects such as family law and social
security law which are generic and relevant to all regional, rural and remote
communities.[449]
The Victoria Law Foundation has plans to expand the service to more broadly
target RRR areas of Victoria.
Committee view
6.47
The Committee considers that, while the provision of
legal advice by telephone is useful in some circumstances, it is of limited
benefit more generally if not complemented by community legal education,
community development projects linked to law and social justice issues, and
outreach programs for face-to-face advice and assistance. The Committee
questions the ability of initiatives such as the Commonwealth Government's
Regional Law Hotline to provide people living in RRR areas with useful and
effective legal advice that appropriately addresses their needs and concerns
without corresponding face-to-face services.
6.48
Although face-to-face services are always preferable,
the Committee considers that videoconferencing facilities would significantly
improve access to legal assistance for those living in more remote areas of Australia.
Such facilities would save travel time and costs, and would enable CLCs to
provide services to areas which are currently beyond their reach.
Recommendation 34
6.49
The Committee recommends that technological initiatives
such as videoconferencing and telephone advice services should be used by the
Commonwealth Government and state/territory governments, legal aid commissions
and community legal centres as part of an integrated approach to providing
services in rural, regional and remote areas. The use of technology can
potentially provide practical solutions to those living in such areas, in
conjunction with face-to-face legal services.
Outreach programs
6.50
Another suggested measure to address the lack of legal
services in RRR areas is the use of outreach programs. People in remote areas
of Australia
suffer greatly because of the limited legal assistance options they have.
Although they may be able to access telephone advice lines or the internet,
often these forms of assistance are not adequate or suitable for the particular
problems they encounter.
6.51
Outreach programs run from regional centres or major
cities are a particularly effective way to provide face-to-face assistance,
advice and representation to those who are not able to otherwise access this
type of assistance due to their location. However, limited funding does not
allow CLCs to provide outreach services to meet need and demand. For example:
Outreach clinics are currently provided in only a few towns in
outback South Australia because
of problems with the high cost of providing such a service due to the enormous
distances to be travelled to see relatively few clients.[450]
6.52
Ms Polly
Porteous of the CCLCG told the Committee:
Some community legal centres in New South
Wales try to do outreaches where they do a circuit.
They might travel, for example, from Broken Hill and go around communities.
There are some people who have never seen a legal centre at all and have severe
legal problems, so they are trying to get to those communities. Some of those
circuits take so much time and money that they have done it once or twice and
then realised that that has used up their entire travel budget. Their travel
budget is not increased in recognition of the kind of work they have to do, so
it is on a par with travel budgets in urban areas, which does not make sense.[451]
6.53
Further, the NSW LAC submitted that it must be recognised
that:
a great deal of planning and community development work needs
to go in to the establishment of [outreach] services which is not taken into
account by funders. This includes liaison with the community and other service
providers, the need to integrate services with that of other community
organisations, aligning services to court circuits, creating community
awareness of the service and maintaining the service over the longer term.[452]
Committee view
6.54
The Committee considers that increased representation
and face-to-face legal advice services are required throughout RRR areas of Australia.
Outreach services, operating from legal services in regional centres, are a
valuable means of providing access to justice for people living in smaller RRR
population areas. Governments need to provide adequate funding to LACs and
regional CLCs to enable them to expand and develop their outreach programs to
RRR areas where there are currently no outreach programs, or where demand for
existing outreach programs is not being met.
6.55
The Committee emphasises that it is the responsibility
of the Commonwealth Government as well as state/territory governments to
provide this funding. It is imperative that LACs and CLCs have enough resources
to provide outreach services to people living in the more remote parts of Australia
to assist them in overcoming barriers of distance and isolation.
Recommendation 35
6.56
The Committee
recommends that the Commonwealth Government and state/territory governments
provide additional funding to state/territory legal aid commissions and community
legal centres to allow them to expand their services, including outreach
services, to rural, regional and remote areas which are currently seriously
under-funded. Additional funding must take into account the significant
resources that are required by legal aid commissions and community legal
centres in undertaking resource-building initiatives in rural, regional and
remote areas.
Recommendation 36
6.57
The Committee recommends that the Commonwealth
Government and state/territory governments allocate additional funding to
enable legal aid commissions, at their discretion, to open and maintain new
regional and rural offices throughout Australia
to provide legal services in those areas which legal aid commissions assess as
being under-serviced.
Duty lawyer schemes
6.58
A suggested way of addressing the lack of lawyers in
RRR areas is to introduce a comprehensive duty lawyer scheme specifically
targeted at those areas. The Legal Services Commission of South Australia
suggested (in the context of that state) that such a scheme should be funded by
the Commonwealth Government. The Commission suggested that the scheme should
offer, amongst other things, a duty solicitor in every court of first instance
(criminal, civil and family) provided by in-house lawyers and private
practitioners, and legal advice and representation on pleas of guilty, pleas of
not guilty in appropriate matters, adjournments and applications for bail.[453]
6.59
The Committee notes that in Queensland,
duty lawyer services are available in over 100 Magistrates and Childrens
Courts. However:
The long term sustainability of duty lawyer services in some
regional areas of Queensland
remains problematic where such service depends upon the cooperation of 1-2
private practitioners in the region. Again, it is the fragility of the
continued provision of such services in the bush that needs to be addressed
immediately.[454]
6.60
While duty lawyer schemes are important in providing
some level of legal assistance to people who would not otherwise be able to
obtain any, they may not always be appropriate. Some question the ability of
the schemes to provide adequate access to justice. For example, Mr
Sam Biondo of
the Fitzroy Legal Service asked:
Is equal justice merely about a duty lawyer sharing five minutes
of their time in a court foyer with a client whom they have never met?[455]
6.61
Ms Naomi
Brown of the Community Legal Centres
Association (WA) said:
in many towns there is not a magistrate who sits all of the
time. The magistrate will visit on circuit and in between times many minor
committal matters and intervention orders are heard by justices of the peace.
The person may or may not have had the opportunity to speak face to face with
someone prior to that, because the duty lawyers will only visit the town at the
time of the Magistrate Courts circuit. So you are still meeting the person
at the court door. For many people who are from different Indigenous cultural
and linguistic backgrounds, as well as other culturally and linguistically
diverse backgrounds, that is very difficult. There is also not necessarily an
opportunity to identify the need and get an interpreter, and there may well not
be an interpreter that is available in that language in that area anyway.[456]
Committee view
6.62
The Committee considers that, while it may not be a
complete solution, the RRR duty lawyer scheme suggested by the Legal Services
Commission of SA could usefully be adopted in all states and territories. The
Committee believes that the Commonwealth Government has a fundamental
responsibility to lead by example in this area and to assist with the provision
of funding to the LACs for a duty lawyer scheme. It would also be appropriate
for the state/territory governments to contribute funding to such a scheme.
6.63
However, the Committee does not consider it appropriate
that the funding should be divided following the current Commonwealth/state dichotomy.
A cooperative approach between the Commonwealth and the states/territories is
preferable so that duty lawyer schemes can be set up in every court of first
instance. The LACs would then be responsible for determining the most efficient
and effective way of providing the service in each state/territory in
conjunction with relevant state/territory bodies such as law societies, local
practitioners, courts and local community legal groups.
6.64
Duty lawyer schemes are discussed further in the
Committee's examination of, and recommendations about, self-represented
litigants in Chapter 10.
Assistance for lawyers in rural,
regional and remote areas
6.65
The Legal Services Commission of SA submitted that
funding needs to be provided by the Commonwealth Government for a RRR subsidy
to assist lawyers practising in RRR areas of Australia.[457] At present,
evidence suggests that more and more lawyers are opting out of legal aid work,
particularly in RRR areas, because the fees are so much lower than the fees
that would be paid by private clients.[458] It is
simply not financially viable for lawyers to engage in this type of work. A
subsidy may be one way to attract and retain lawyers in RRR areas. Incentives
considered necessary include:
-
relocation costs to the country;
-
assistance with housing costs;
-
subsidised costs of attending further education
seminars, including travel costs;
-
additional allowances for travelling expenses,
motor vehicle expenses, telecommunications expenses, and a cultural training
allowance; and
-
travelling costs incurred on a legal aid file.[459]
6.66
Another suggestion to ease the problem of lack of
lawyers in RRR areas was presented (in the context of Victoria)
at the Melbourne
hearing by the Law Institute of Victoria:
a partnership between private lawyers, of which there are
plenty in rural and regional Victoria,
to undertake casework on an individually funded basis. That would mean that
there was at least some modest financial incentive for the development of
expertise in those firms to ensure that the people in those areas are able to
access the services that their city cousins can, whilst at the same time not
breaking the financial back of law firms in regional and rural Victoria.[460]
6.67
Mr John
North of the Law Council of Australia told
the Committee of the dwindling number of lawyers in RRR areas:
It seems to be
particularly clear that the lawyers who are operating in the bush are
getting older and there are becoming fewer of them. Just as it is with the
medical profession and other professions, it is particularly difficult to
entice young lawyers out into the country ... Our finding is now that, because
of the crisis that occurred in legal aid a few years ago when the Commonwealth
funding was effectively frozen, large numbers of experienced lawyers, many with
more experience than me, are not taking part in legal aid work. This is not
just a plea on behalf of the legal profession to increase funding; we really do
face a problem of access to justice in rural and remote areas with a lack of
lawyers on the ground.[461]
6.68
He suggested
some ways of improving this situation:
I think the only way we will be able to do anything about it is to start
using people who actually live and grow up in the country and try and get them
to become lawyers and to come back into the communities where they are from.
When you can get somebody to come to the country, if they stay for a few years,
they love it, and you get a lot of very dedicated and experienced lawyers.[462]
6.69 Mr
Brian Withers
from the Law Council of Australia noted
that the demographics in rural areas were 'changing quite dramatically':
more disadvantaged
people are moving there because of more affordable housing and the ability to
live at a better level than they would be able to in the city and, hence, the
pool, if you like, of those who would qualify for legal aid is probably
increasing ...[463]
6.70 The Law Council representatives also
explored the possibility of introducing government initiatives to attract more
lawyers to RRR areas. Mr Withers noted that one of the recommendations in
the Law Council's recent report, Erosion
of Legal Representation in the Australian Justice System, was that:
there be innovative
scholarship and subsidy schemes to encourage young people from rural and remote
regions to become lawyers and that lawyers be encouraged generally to practise
in rural and remote regions [464]
6.71 Mr Withers commented that, although this 'is a fairly substantial undertaking',
those people who grew up in RRR areas would be more likely 'to provide the
long-term support and commitment that is needed in remoter areas'.[465]
6.72 Mr North suggested a possible rethinking of the approach taken by law schools at
a fundamental level:
There is absolutely no
reason why country campuses attached to universities should not be able to
offer country people a legally based education. There must not be, when you
look at things, this ridiculous situation that is in New South Wales where you need 99.8 or 99.6 in the Higher
School Certificate to qualify. It should be on the basis of people being
interviewed, having a reasonable score and being assisted to go through these
degrees.
I would very much like
to take it on board at the Law Council level to see if we can develop it
because it takes out the problem of having to move the student from the country
area to the city and then back again.[466]
Committee view
6.73
The Committee is greatly concerned about the apparent
shortage of lawyers in RRR areas of Australia
and urges Commonwealth and state/territory governments to take measures to
encourage lawyers to live and work in those areas. The Committee considers that
the provision of a subsidy or other incentives for lawyers may have merit.
Recommendation 37
6.74
The Committee recommends that the Commonwealth and
state/territory governments, in conjunction with the law societies in each
state/territory and the Law Council of Australia, fully investigate the
viability of providing a subsidy (or any other relevant incentives), and
developing a coordinated national approach, aimed at attracting and retaining
lawyers to live and work in rural, regional and remote areas of Australia.
Other possible measures
6.75
There is a clear indication in submissions that legal
aid should be nationally consistent, that is, assistance should be provided to
people in similar circumstances, regardless of where they live.[467] Legal aid
should also be comprehensive in scope (covering the full spectrum of legal
matters), adequately funded (giving the requisite degree of assistance to
ensure cases are able to be prepared properly) and efficiently administered (so
that public funds are expended efficiently and effectively).[468]
6.76
Any changes to the legal aid system in RRR areas must
be properly coordinated and evaluated to take into account the wide range of
experiences and varied needs of clients, communities and lawyers.[469] Community
consultation is vital to determine where there are unmet needs and which
services are required.[470] Needs
analysis is important both for the improvement of service delivery in
individual cases and to direct funds generally to cases, clients and
geographical areas which experience particular disadvantage.[471] It has been
suggested that a comprehensive national strategy is required in relation to the
recruitment, selection and retention of lawyers in RRR areas in order to ensure
the sustainability of legal services to people living in those areas.[472]
6.77
Focusing solely on legal need might exclude a range of
other issues which are also important to consider, such as the particularities
of different areas and work, geographical issues, transience of the population,
and remuneration issues.[473] It is
essential that an analysis of such issues be undertaken in order to identify
the most appropriate mix of legal services required in a particular area.[474] The
importance of a mixed system of service delivery has been emphasised, with
private lawyers, legal aid agencies and CLCs all working together in a
coordinated manner[475]
to develop and achieve sustainable models of legal service delivery.
6.78
While many submissions argue that more funding is
required to meet the demand for legal services in RRR areas, it has been
submitted that simply moving funding from metropolitan areas to RRR areas is
not the answer.[476]
The fundamental reality about legal aid is that there are insufficient funds
across the board to adequately meet need.[477] Since the
level of legal need in highly populated areas of metropolitan cities and
surrounding suburbs is not being met by existing services, further spreading or
diluting of resources, even if possible, would have the effect of severely impacting
the existing network of service provision.[478]
6.79
While diluting funding is not desirable, the Committee
received evidence in relation to some of the crucial factors which may need to
be considered if any shift in location or reallocation of resources is required:
-
population density which largely resides within
metropolitan areas;
-
higher concentrations of legal problems within
urban areas;
-
access to public transport;
-
location of existing centres;
-
access and availability of volunteer staff
within particular communities; and
-
the ability to attract and retain paid staff in
particular areas.[479]
Committee view
6.80
Evidence presented to the Committee during the course
of the inquiry clearly indicates that gaps in the legal aid system are greatly
magnified in RRR areas. Overwhelmingly, the evidence suggests that the current
arrangements throughout RRR areas of Australia
are inconsistent and inadequate, and generally fall well below acceptable
standards for achieving geographic equity and uniform access to justice. In fact,
it appears as thought there is a growing crisis in effective legal aid service
delivery in RRR areas. The Committee is of the view that the provision of legal
aid should be nationally consistent. Funding and services should be available
to provide assistance to all Australians with similar needs and circumstances,
regardless of the location in which they live.
6.81
The Committee strongly endorses the recommendation made
in the Committees Third Report that
legal aid expenditure be closely monitored to determine if disproportionate
expenditure in certain priority areas is having the effect of depriving other
areas of appropriate funding. The Committee is particularly concerned about
expenditure that may disproportionately favour metropolitan areas at the expense
of RRR areas.
6.82
However, the Committee does not believe that any
increase to funding in RRR areas should involve a decrease in funding to
metropolitan areas. The Committee agrees with the view that shifting funds from
one area to another is not a solution to the problem of lack of funding and services
in RRR areas since it cannot be said that metropolitan areas are over-resourced
in terms of legal aid funding. It appears that additional funding by the
Commonwealth and state/territory governments is urgently required to address
the problem of lack of legal and related services in all areas, but this is
particularly the case in RRR areas where there are increased costs associated
with providing legal services.
6.83
The Committee is of the view that the provision of
legal and legal-related services to RRR areas of Australia
is critical to the operation of an equitable legal system for all Australians.
The Commonwealth and state/territory governments have a shared responsibility
to ensure that people living in such areas have equitable access to legal aid.
Governments need to respond in an integrated way to the range of legal problems
experienced by many people in RRR areas and work to provide flexible and
innovative solutions to the community need for assistance.
6.84
Further, the circumstances surrounding legal need are
not fixed and require ongoing evaluation by governments. The Committee feels
strongly that such evaluation would be able to allow an accurate assessment of
service delivery in RRR areas and will result in developing more equitable,
efficient and effective ways of delivering legal aid services in those areas.
Recommendation 38
6.85
The Committee
recommends that the Commonwealth Government conduct research to determine the
particular needs and services required by people living in rural, regional and
remote areas of Australia.
The Committee urges the Commonwealth Government and the state/territory
governments to develop mechanisms, in conjunction with legal aid commissions in
each state and territory, to ensure that people living in rural, regional and
remote areas are not disadvantaged, nor denied basic services and access to the
legal aid system, simply because of where they live.
Recommendation 39
6.86
The Committee recommends that any increase in funding
for rural, regional and remote areas should not be at the expense of funding
for metropolitan areas. Additional funding is urgently required to address the
problem of lack of legal and related services in rural, regional and remote
areas.
Recommendation 40
6.87
The Committee recommends that the Commonwealth
Government and state/territory governments ensure that thorough consultation
takes place with rural, regional and remote communities in order to determine
the most appropriate legal and associated services required in particular
communities. All consultations should occur before any establishment of any new
services.