PREFACE
Terms of reference and first two reports
On 29 May 1996 the Senate gave the Committee a reference to inquire into:
The continued ability of all to have access to legal services and litigation
in Australia.
On 17 September 1996, the Senate referred a series of detailed matters
relating to legal aid which, in effect, formed a sub-set of the initial
reference. The matters referred were:
(1) The capacity of the Australian legal aid system to meet community
demand for:
(a) legal advice and information; and
(b) representation and other advocacy services.
(2) The respective responsibilities of the Commonwealth, State and Territory
Governments and the profession in the provision of Legal Aid through Legal
Aid Commissions and other agencies and mechanisms.
(3) The implications for Commonwealth responsibility for legal assistance
arising from:
(a) its international obligations; and
(b) its interests in achieving national equity and uniform access to
justice across Australia.
(4) The nature and level of legislative, organisational and administrative
impediments (including court filing fees) to effective delivery of legal
assistance.
(5) The levels of disparity between the Commonwealth Government's payment
of legal services it uses (both in-house and from private practice) and
rates of payment to legal aid lawyers (both in-house and from private
practice).
(6) The relationship between the legal profession and Government in delivering
legal assistance services and the role of the courts in minimising the
costs of those services.
(7) The equity implications arising from the current tax deductibility
regime for legal expenses, including by the corporate sector.
(8) The implications, if any, for the Legal Aid system that arise from
the High Court Dietrich decision.
(9) The capacity of the legal aid system, in the proposed funding arrangements,
to provide for separate representation of children where such assistance
is essential in the pursuit of justice.
The Committee was asked to report to the Senate by the last sitting day
of April 1997.
The Committee's First Report was tabled on 26 March 1997. It concentrated
on the Commonwealth Government proposals to change the funding arrangements
for legal aid. In the report, the Committee informed the Senate that it
considered `that it should continue to undertake the current legal aid
inquiry as part of its wider responsibility to inquire into the continuing
ability of all Australians to have access to litigation and legal services'
(para. 4.9).
The Committee's Second Report was tabled on 26 June 1997. It is
in two parts.
Part One reviewed evidence received at the further hearings in Sydney
and Perth in April 1997. It also provided information on appropriations
for legal aid contained in the 1997-98 Budget and the status of negotiations
for legal aid agreements between the Commonwealth and the states and territories,
due to take effect on 1 July 1997.
Part Two of the report addressed the following specific terms from the
September 1996 terms of reference: all of term 2, term 3(a), the first
part of term 6, and all of terms 8 and 9.
Further steps in the inquiry
The Committee announced by media advertisements and direct mail in July
1997 that it was seeking submissions to the next stage of its inquiry,
which would focus on terms 5 and 7 of the 26 September 1996 terms of reference
and on the following matters:
- access to litigation and legal services by disadvantaged individuals
and groups; and
- access to litigation and legal services in rural and regional areas;
The Committee held a public hearing in Canberra on 29 August 1997.
In November 1997, the Committee wrote to all those it had written to
in July 1997 or who had responded to the advertisement. The letter explained
that the Committee's workload had thus far prevented it addressing the
matters identified in July 1997. It also confirmed its `continuing interest
in access to justice issues and in particular the impact of changes to
the legal aid system that came into effect on 1 July 1997'.
In February and March 1998, the Committee held public hearings in Adelaide,
Brisbane and Perth, on three days in Canberra, and on two days in each
of Melbourne and Sydney. The details of those who appeared at public hearings
since the Second Report are set out in Appendix 2.
In producing this report, the Committee considered the submissions made
during the earlier phases of its inquiry, as well as the submissions received
since the Second Report. A list of those who made submissions is
in Appendix 1.
The Committee thanks all those who contributed to its inquiry.
Structure of the report
The report is structured as follows:
- The first Chapter gives an overview the 1997 legal aid agreements
between the Commonwealth and the states and territories. It briefly
updates the information provided in the Second Report on two
matters: the separate representation of children in family law litigation,
and the impact of the High Court's 1992 Dietrich decision. It
also comments briefly on the Government response to the First Report
and the Second Report.
- Chapter 2 deals with the lack of adequate information and statistical
data with which to assess the operation of the legal aid system, especially
the impact of the new arrangements.
- Chapter 3 looks at funding issues, including term 5 of the September
1996 reference the levels of disparity between the Commonwealth Government's
payment of legal services it uses and rates of payment to legal aid
lawyers.
- Chapter 4 deals with general points about the `Priorities' and the
`Guidelines' documents which determine how Commonwealth legal aid funding
is to be spent under the new agreements.
- Chapters 5, 6 and 7 deal in more detail with the priorities and guidelines
as they apply respectively to family, criminal and civil law matters.
- Chapters 8 and 9 deal with terms 2, 3(b) and 6, and examine the effects
of the July 1997 changes on the legal aid commissions, and other legal
aid providers, and on the various groups including those especially
disadvantaged and those living in rural and regional Australia.
- Chapter 10 deals with term 7 of the September 1996 reference the equity
implications arising from the current tax deductibility regime for legal
expenses.
Much of this report focuses on the changes to the legal aid arrangements
that took effect on 1 July 1997. The Committee would have liked to have
had more time to evaluate these changes, but it did not wish to delay
reporting. As a result the report reflects the problems that have emerged
so far. It may well be that further problems emerge in the future.
Senator Jim McKiernan
Chair
References Committee
June 1998