Additional comments by the Australian Greens
1.1
The Australian Greens support the 31 recommendations made in this
report, and suggest five additional recommendations outlined below to address
the serious and long‑standing gaps in our legal system identified by the
committee.
1.2
Legal services in rural and regional areas remain under‑resourced,
while disadvantaged and marginalised groups continue to slip through the
cracks. The numbers of self represented litigants continues to increase due to
inadequate legal aid and community legal sector funding.
1.3
As identified in the early part of this report, much of this ground has
been traversed many times by the L&C committee and many other reviews,
audits and reports. It is essential that the recommendations contained within
are responded to with urgency, to begin the long task of rebalancing the
justice system so that the authors of the next report are able to tell a
different story.
Purchaser/provider funding arrangements
1.4
After more than a decade of chronic under‑funding, the provision
of legal aid in Australia is highly inadequate. Many submissions, including the
Law Council of Australia, attributed the 'funding crisis' to the implementation
of the Commonwealth/state funding divide in 1996, which led to subsequent
uncertainty regarding funding responsibility.
1.5
This funding arrangement has enabled the Commonwealth to systematically
under‑fund legal aid. The Law Council of Australia submission cited
figures assembled by the Government of Western Australia that show that the
Commonwealth’s share of total legal aid spending has declined from 64 per cent
in 1996‑97 to 45 per cent in 2006‑07.
1.6
The purchaser/provider funding arrangement has not only led to a drastic
decrease in legal aid funding, it has also placed a large administrative burden
on legal aid providers who now have to access different funding to represent a
single client when state and Commonwealth issues arise in a matter.
Recommendation 1
1.7
The Australian Greens recommend that the current purchaser/provider
funding arrangement be abolished.
A right to legal representation
1.8
As noted in many submissions to the inquiry, the significance of legal
representation in relation to the ability to access justice outcomes is almost
undisputed, and yet legal representation remains largely inaccessible for many
people due to high costs.
1.9
In a recent General Comment by the United Nations Human Rights
Committee, it was noted that the ‘availability or access to legal assistance is
often determinative of whether or not a person can access the relevant judicial
proceedings or participate in them in a meaningful way.’
1.10
As submitted by the Law Council of Australia, increasing numbers of
litigants are entering the court system without legal representation.
1.11
The International Covenant on Civil and Political Rights, Article
14(3)(d) states that legal representation should be provided at all stages of
the criminal justice process.
Recommendation 2
1.12
In conformity with Australia’s obligations under the International
Covenant on Civil and Political Rights the Australian Greens recommend the
enactment of a right to legal representation.
The Migration Act 1958
1.13
Ms Skye Rose, Project Manager, and Mr John Corker, President of the
National Pro Bono Resource Centre gave evidence to the committee in Sydney on
11 September 2009 about the provisions of the Migration Act 1958.
The relevant provisions are sections 468E and 468F which require lawyers to
provide a certificate stipulating that there are 'reasonable prospects of
success' in the matter and which enable cost orders to be made against
lawyers in unsuccessful cases.
1.14
These provisions are a 'serious deterrent' for pro bono providers, who
are placed in a difficult position taking on pro bono migration matters,
because the complex nature of this area of the law makes it difficult to assess
the prospects of success. If these prospects are determined by the court to have
been inaccurately assessed, lawyers will be personally liable for cost orders.
1.15
Ms Rose gave evidence that these provisions are 'a genuine concern for
people wanting to represent people on migration matters.' In the submission
received from the National Pro Bono Resource Centre, it was noted that these
provisions 'can have a chilling effect on pro bono by deterring lawyers from
assisting disadvantaged people to pursue their rights'.
1.16
The Australian Greens believe that pro bono legal services should be
encouraged not deterred and as such, recommend that sections 468E and 468F of
the Migration Act 1958 be repealed.
Recommendation 3
1.17
The Australian Greens recommend that sections 486E and 486F of the Migration
Act 1958, obligation where there is no reasonable prospect of success and
cost orders, be repealed.
Legal Services Research Centre
1.18
Associate Professor Simon Rice AOM and Associate Professor Molly Townes
O’Brien submitted that Australian justice policy lacks coherence and
direction, noting that previous inquiries have largely failed to provoke
reform.
1.19
Professor Rice AOM and Professor O’Brien proposed that the UK Legal
Service Research Centre model for justice related research be adopted in
Australia.
1.20
A justice research centre could undertake the necessary quantitative and
qualitative research, along with theoretical analysis of the political, social
and philosophical underpinnings of publicly funded legal services in order to
direct improved use of services consequently improving access to justice.
1.21
A number of the recommendations made in this report refer to the need to
'review' or 'investigate' access to justice needs. A permanent, independent
justice related research centre would be best placed to complete such work.
1.22
The availability of better data and research would enable
governments and community organisations to allocate and utilise funding more
efficiently.
Recommendation 4
1.23
The Australian Greens recommend the establishment of a permanent,
independent, justice research centre.
Political neutrality and CLC funding
1.24
The Australia Greens do not support the comments made at paragraph 7.62
of the report, which suggest that 'in its current consideration of a new CLSP
funding model, the department should have regard to eligibility criteria,
including the admission of CLCs not currently covered by the program and the
exclusion of CLCs which are not politically neutral, for example, those
Environmental Defender's Offices who engage in political activities.'
1.25
The Australian Greens do not believe that CLC funding should be dependent
on political neutrality. Applying this rule systematically would endanger the
valuable advocacy role performed by many CLCs (of which the L & C committee
has been the beneficiary on this and many other occasions.)
Senator Scott
Ludlam
Australian Greens
Navigation: Previous Page | Contents | Next Page