Minority report by government senators
Introduction
1.1
This broad and far ranging enquiry into legal aid and
access to justice arrangements across Australia, has demonstrated some areas of
considerable need and Government senators acknowledge the importance of an
examination of that need and the development of solutions, both funding and
practical, to address that. However, it is clear that that need is not clearly
quantified, either through government, commissions or other providers and to
that end we support in principle the Reports suggestion that much better
statistical and practical information is required.
1.2
Of the 63 recommendations in the Report, at least 11
call for some form of research, evaluation, review, needs analysis, survey or
study of both needs and demand, and services either currently provided or
required. Government senators suggest that these recommendations could be
effectively refined to examine need and service delivery in 3 key areas,
drawing from the recommendations of the Report.
1.3
In relation to the provision of services: a national
survey of demand and unmet need for legal services and identification of the
obstacles to service delivery, which would include the impact of self
represented litigants on the system, the value and effectiveness of government
legal information services and the extent to which legal aid funding
arrangements impact upon the work of Community Legal Centres.
1.4
Many submissions and witnesses raised very specific
concerns in relation to discrimination against women in terms of legal service
delivery and support. Government senators agree that all Australians are
entitled to access to legal services without discrimination. In light of the
concerns raised we support research into the perceived gender bias in access to
legal services, including consideration of the specific service needs of women,
particularly indigenous women and women in rural regional and remote Australia.
1.5
It is also clear from the evidence received that
indigenous Australians and people living in rural, regional and remote
Australia face separate and different challenges in terms of access to legal
services. Government senators acknowledge that these are areas of different and
diverse concern, and both questions merit examination to ensure that services
that are being delivered are meeting their aims and objectives and where they
are not, what can be changed to achieve more effective service delivery.
Commonwealth
government support for legal aid
Legal aid
funding and agreements
1.6
The Australian Government is providing $599 million
over the next four years to provide legal aid for Commonwealth law matters in
each State and Territory from 1 July 2004 (Budget papers 2004-05). This is an
additional $52.7 million in new money over four years, including $1.3 million
for program administration.
1.7
The new funding includes a component to provide a new
duty lawyer service to assist those people who seek to represent themselves
before the Family Court and the Federal Magistrates Court. Legal aid commissions
will be invited to provide the new service.
1.8
A further component will assist commissions to pay a
minimum rate of $120 (GST exclusive) per hour to solicitors undertaking
Commonwealth family law matters. Funding
will also be provided to assist commissions to bring the hourly rates for
veterans' matters to the same rates as those paid for family law matters in all
States and Territories.
Legal aid
renegotiations
1.9
The current agreements for legal aid services provided
by State and Territory legal aid commissions are due to expire on 30 June 2004
and negotiations are currently underway with States and Territories and legal
aid commissions for replacement agreements to operate from 1 July
2004. If new agreements are not signed
by the end of June the current agreements will continue until the new
agreements are in place.
1.10
Additional funds will be available to State and
Territory legal aid commissions when they enter into new legal aid agreements
from 1 July 2004. Those funds do not
include payments for duty lawyer services.
$3.3m is available for the provision of duty lawyers should Legal Aid
Commissions take up the Commonwealth invitation to provide the service.
Policy issues
Women and access
to legal services
1.11
As noted previously, Government senators support an
examination of perceived gender bias in access to legal services. In relation
to matters involving Commonwealth and state laws, particularly family law
matters which also include domestic violence issues, Government senators are
concerned that administrative constraints or arrangements in cost allocation by
Legal Aid Commissions may add to the complexities in providing legal services
in such matters.
1.12
Government senators note that separate solicitors for
family law and criminal law aspects of the same matter are not required under
the Commonwealth legal aid agreements. Government senators would encourage the
Attorney Generals Department to work with Legal Aid Commissions to resolve
cost allocation issues to ensure the most effective representation for those
women seeking legal services in such circumstances.
Pro Bono Legal
Services
1.13
Government senators acknowledge the valuable
contribution made by the legal profession in Australia in provision of pro bono
legal services. Government senators also support the observation in the report
that pro bono legal services should not be seen as a substitute for legal aid
funding.
1.14
In the last 4 years the Commonwealth government has
strongly supported pro bono efforts including establishment of the National Pro
Bono Resource Centre. The centre was provided with seed funding based on the
government expectations that it would become a private sector body, fully
supported by the private sector.
1.15
Government senators note that concerns were expressed
in submissions and evidence that private sector lawyers may be discouraged from
acting pro bono in matters against the Commonwealth if they perceived they
would subsequently be prejudiced in the selection of legal service providers by
Commonwealth agencies. It is important to note that the Commonwealth Attorney
General stated at the 2nd National Pro Bono Conference in 2003
It is my belief that, subject to the usual
conflict of interest rules, it is irrelevant whether or not legal providers
have acted pro bono for clients against the Commonwealth
Government senators encourage the inclusion of a statement clarifying
this matter in the Legal Services Directions.
Community Legal
Centres
1.16
Government senators are concerned at the evidence
received by the committee in relation to community legal centres, both in terms
of staffing and working environments. The community legal centres play an
important part in the provision of legal services to many disadvantaged
Australians and that contribution cannot be disregarded.
1.17
In 2004-05 recurrent funding for the Commonwealth
Community Legal Services Programme will be $23.3 million, a funding increase of
more than 50% since 1996. This includes the establishment of 11 new community
legal centres in regional, rural and remote Australia since 1998. In 2002-03 a
new 3 year model service agreement was introduced, providing some stability and
greater certainty to ongoing funding arrangements for centres. This is a
demonstration of ongoing Commonwealth support for the programme.
1.18
It is notable that although community legal centres
provide a mix of legal services relating to Commonwealth and State matters,
state funding is very varied. It ranges from 43% in one state to no
contribution at all in others, specifically Tasmania, the ACT and the Northern
Territory. Government senators encourage state and territory governments to
more strongly support the work of community legal centres.
Report
Recommendations
1.19
Government senators provide the following responses and
comments on particular recommendations in the Chairs report.
Recommendations
1 and 2
Government senators note that the Attorney Generals Department has
advised that a new funding model was developed as part of the process of
formulating legal aid agreements with the states, which was used to assist in
the distribution of legal aid funds. The model was developed with assistance
from the Commonwealth Grants Commission and in consultation with legal aid
commissions.
Recommendation
3
Government senators support this
recommendation.
Recommendation
4
Government senators support this
recommendation.
Recommendation
5
Government senators do not support
this recommendation.
Recommendation
6
Government senators recommend that
this initiative be considered and costed by the Attorney Generals Department
and considered for development between the Commonwealth and the states and
territories.
Recommendation
7 and 8
Government senators do not support
these recommendations. The evidence is not persuasive that these
recommendations are practical, nor the impact on services as described properly
quantifiable.
Recommendation
9
Government senators do not support
this recommendation.
Recommendation
10
Government senators support
consideration of this recommendation.
Recommendations
11, 50, 54, 55, 56, 58, 59
Government senators support a national survey of demand and unmet need
for legal services and identification of the obstacles to service delivery,
which would include the impact of self represented litigants on the system, the
value and effectiveness of government legal information services and the extent
to which legal aid funding arrangements impact upon the work of Community Legal
Centres.
Recommendations
12, 15, 25, 26, 30, 31
Government senators agree that all Australians are entitled to access
to legal services without discrimination. In light of the concerns raised we
support research into the perceived gender bias in access to legal services,
including consideration of the specific service needs of women, particularly
service funding and support for indigenous women and women in rural regional
and remote Australia.
Recommendations
13 and 14
Government senators note the vexed
nature of identifying which areas of spending on legal aid receive greater
priority than others, and whether by definition that makes such spending
disproportionate. Evidence to the committee suggested that these aspects of
legal aid funding do merit examination.
Recommendation
16
Government senators support this recommendation.
Recommendation
17
Government senators support this recommendation.
Recommendation
18
Government senators are concerned that administrative constraints or
arrangements in cost allocation by Legal Aid Commissions may add to the
complexities in providing legal services in such matters.
Government senators note that separate solicitors for family law and
criminal law aspects of the same matter are not required under the Commonwealth
legal aid agreements. Government senators encourage the Attorney Generals
Department to work with Legal Aid Commissions to resolve cost allocation issues
to ensure the most effective representation for those women seeking legal
services in such circumstances.
Recommendation
19
Government senators support this recommendation.
Recommendation
20
Government senators support this recommendation.
Recommendation
21
Government senators support this recommendation.
Recommendation
22
Government senators suggest that
this recommendation be reviewed when the results of the monitoring called for
in recommendation 21 are known.
Recommendation
23
Government senators support this
recommendation.
Recommendation
24
Government senators support this recommendation.
Recommendations
27, 29, 32, 33, 36, 38, 39, 40
Government
senators note that it is clear from the evidence received that indigenous
Australians and people living in rural, regional and remote Australia face
separate and different challenges in terms of access to legal services.
Government senators acknowledge that these are areas of different and diverse concern,
and both questions merit examination to ensure that services that are being
delivered are meeting their aims and objectives and where they are not, what
can be changed to achieve more effective service delivery. After the report of
such examination is produced consideration should be given to increasing
funding levels.
Recommendation
28
Government senators do not support
this recommendation but reiterate the need for such a tender to include
appropriate cultural considerations.
Recommendation
34
Government senators support this
recommendation.
Recommendations
35, 60, 61, 62
Government senators note the support of the Commonwealth government for
community legal centres and the rural and regional initiatives introduced and
continued by the Commonwealth. Government senators encourage state and
territory governments to more strongly support the work of community legal
centres. However, it is clear that existing community legal centres are
operating under significant financial difficulties impacting on their capacity
to retain staff, the quality of the working environment and consequently their
levels of service delivery. Government senators acknowledge that this funding
situation will require review by the Commonwealth government in the near future.
Recommendation
37
Government senators do not support the provision of a subsidy
but support the development of a coordinated national approach between
Commonwealth and state and territory governments and law societies, in
conjunction with university Law Schools, of attracting and retaining lawyers to
work in rural, regional and remote areas.
Recommendations
41, 42
Government senators do not support
these recommendations.
Recommendation
43
Government senators support this
recommendation.
Recommendation
44
Government senators do not support
this recommendation.
Recommendation
45
Government senators support this
recommendation.
Recommendation
46
Government senators support this
recommendation.
Recommendation
47
Government senators support this recommendation.
Recommendations
48, 49
Government senators note that the National Pro Bono Resource Centre was
provided with seed funding based on the government expectations that it would
become a private sector body, fully supported by the private sector.
Recommendation
51
Government senators support this recommendation.
Recommendation
52
Government senators support this recommendation.
Recommendation
53
Government senators support this recommendation.
Recommendation
57
Government senators note that
Commonwealth funding was provided in the 2004-05 budget for duty lawyer
services and encourage state and territory governments to provide funding
support for duty lawyer schemes.
Recommendation
63
Government senators support this
recommendation.
Senator Marise Payne Senator
Nigel Scullion
Liberal Party Country
Liberal Party
Deputy Chair