PREFACE


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Legal Aid Report 3

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:

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:

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