CHAPTER 1
Events since the second report: an Update
Transition to the new legal aid agreements
1.1 In its two previous reports on this inquiry the Committee described
the history of legal aid arrangements in Australia. It also described
the arrangements that prevailed immediately prior to 1 July 1997 under
which the Commonwealth provided significant funding for legal aid in respect
of matters arising under state and territory laws, as well as under Commonwealth
laws. [1] The reports discussed the Commonwealth's
decision announced in June 1996 that it would no longer provide legal
aid funding for the matters arising under state and territory laws, thereby
reducing its commitment to legal aid by some $33 million. [2]
The Committee also described how, as a consequence of its decision the
Commonwealth gave the required 12-months notice to terminate the legal
aid agreements it had with the states and territories, so that they would
end on 30 June 1997. New agreements were to be entered into.
1.2 The legal aid commissions in the second half of 1996 were faced with
a situation of not knowing with any certainty what funding arrangements
would apply to them after 30 June 1997, and the likelihood that whatever
these arrangements turned out to be, a funding cut would be a part of
them. Even though the reduction would not take effect until 1 July 1997,
legal aid commissions felt obliged to react well before that date. From
the time a commission approves legal aid funding for a matter, it may
be many months, or even years, before it receives all the bills for payment.
[3] Hence the commissions began to reduce their
services in a variety of ways during the 1996-97 year.
1.3 For example, Victoria Legal Aid considered it necessary for budgetary
reasons to impose strict limits on the amounts that it would provide to
any one party in family law matters, and to impose this limit retrospectively.
This, according to the evidence to the Committee, created major problems.
[4] Litigants found, sometimes apparently without
warning, that their legal aid had run out, notwithstanding that they might
be at a particularly critical stage of the matter, perhaps even in mid-trial.
1.4 While this particularly harsh impact of the anticipated funding changes
did not occur in other jurisdictions, [5] other
commissions were also forced to begin to reduce their services in anticipation
of the cuts which might eventuate. The Legal Services Commission of South
Australia, for example, told the Committee that when the first intimations
of the cuts were made public, it:
implemented restrictions on services, placed new or harsher funding caps
on criminal, family and civil cases, introduced more restrictive guidelines
on legal aid eligibility, and reduced staff levels. [6]
1.5 In relation to criminal matters, the Commonwealth Director of Public
Prosecutions advised that a number of Commonwealth prosecutions relating
to serious offences were delayed in the first half of 1997 as a result
of the imposition of restrictive policies by the legal aid commissions.
[7] In addition, in New South Wales a policy
operated preventing the legal aid funding of re-trials following the failure
of a trial due to a hung jury. This policy delayed the prosecution of
a number of defendants for offences relating to the importation of illegal
drugs. [8]
1.6 The Committee reported in March 1997 in its First Report that
the shift from the old to the new arrangements was creating a great deal
of confusion, because the size of the cuts and the detail of the new arrangements
had yet to be worked out with any finality. [9]
It noted that the period of confusion might continue until at least 30 June
1997.
1.7 In fact the uncertainty continued beyond this date. Although by and
large agreements-in-principle were reached beforehand, the formal agreements
with most jurisdictions were not signed until after 30 June. The last
agreement to be signed was that with Victoria, which was not signed until
7 November 1997.
1.8 The agreement with Western Australia was only for the six months
to 31 December 1997. A new agreement, on similar terms to the first,
was then entered into for the period to 30 June 1998. Thus the Legal Aid
Commission of Western Australia had a double dose of uncertainty, and
the Commission's acting director was reported as saying in March 1998
that the uncertainty had resulted in low morale and an exodus of staff.
[10]
An overview of the new agreements
1.9 Although the duration of the agreements varies, the Committee was
told that the Commonwealth regards them as defining the relationships
intended to prevail until 30 June 2000, subject to minor adjustments as
required. [11] The actual duration provided
for in each of the agreements is set out in the following table:
| state/territory |
expiry date |
| NSW |
30 June 2000 |
| Victoria |
30 June 1998, but the `parties intend to continue the
arrangements … for a minimum of three years' (clause 2.1) and
will work towards a replacement agreement of at least two years duration
to commence on 1 July 1998 (clause 2.2) |
| Queensland [12] |
30 June 1998, but automatic renewal unless other arrangements
made (clause 2.2) |
| South Australia |
`This Agreement will be reviewed by 30 June 2000' (clause
2.2) |
| Western Australia |
initial agreement expired 31 December 1997; [13]
replaced by similar agreement which expires on 30 June 1998 |
| Tasmania |
`This Agreement will be reviewed by 30 June 2000' (clause
2.2) |
| ACT |
`This Agreement will be reviewed by 30 June 2000' (clause
2.2) |
| Northern Territory |
`This Agreement will be reviewed by 30 June 2000' (clause
2.2) |
1.10 The agreements are all in similar form, though there are differences
in some of the details. As a sample, the agreement with Victoria is set
out in Appendix 4 of this report. A table setting out the main differences
between the agreements is in Appendix 5. Each agreement consists of the
text of the agreement and three schedules:
- schedule 1, which details the amounts of Commonwealth funding to be
provided, the payment arrangements, and matters such as the accumulation
of reserves and transitional funding provisions;
- schedule 2, headed `Commonwealth Priorities' which provides that expenditure
of Commonwealth funding must generally be limited to the categories
of matters it lists and the circumstances it provides; and
- schedule 3, which is headed `Commonwealth Guidelines: Legal Assistance
in Respect of Matters Arising Under Commonwealth Laws' and which expands
on the matters in schedule 2, dealing with when a grant of legal aid
may be made for a particular matter, including provisions on means testing,
merits testing, and ceilings on amounts that may be spent on any one
matter (often referred to as `caps'). [14]
1.11 The agreements provide that schedules 2 and 3 are subject to change
at the Commonwealth's initiative and in consultation with the state or
territory and/or its legal aid commission. Amendments have been made,
based on, among other things, comments and criticisms made by the various
legal aid commissions. [15] The Committee is
aware that changes have been made in respect of one commission that do
not apply to another, although it is not aware of the full extent to which
this may have occurred. The Committee is concerned that this, together
with the variations that were present in the guidelines at the outset,
can lead to a loss of uniformity in what the Committee believes should
be uniform national guidelines. It would in the Committee's view clearly
be inequitable if applicants receive legal aid in one jurisdiction but
not in another as a result of non-uniform changes to priorities or guidelines.
1.12 In late April 1998, the commissions were advised that the Attorney-General
had approved a revised set of priorities and guidelines. A copy of the
revised priorities and guidelines for Victoria is included in Appendix
3 of this Report. All the revised guidelines are to take effect from 1 July
1998. As with the originals, the revised set are not completely uniform
across all jurisdictions. The Committee assumes that for each jurisdiction
the revision incorporates whatever ad hoc changes may have been made earlier
in the year.
1.13 Many of the amendments can be seen as attempts to clarify uncertainties
in the original schedules. Others seem to be directed at remedying more
substantial defects, for example in respect of the way in which caps are
applied. These matters are discussed later in this report. The Committee
simply wishes to note here that in its view the breadth of the changes
required provides further evidence of the lack of adequate planning by
the Commonwealth for the transition to the new legal aid arrangements
on 1 July 1997.
1.14 The Commonwealth's 1997-98 Budget allocated less than the total
amount of $106.587 million that the Commonwealth eventually agreed to
provide under the agreements. The shortfall, which amounted to $4.667
million, was made up by means of an additional appropriation. [16]
1.15 The following table sets out the amounts provided by the Commonwealth
in the last year of the old agreements and the first two years of the
new ones, together with the amount provided in 1997-98 per head of population.
[17]
| State/territory |
Payments
1996-97
$m
|
Payments
1997-98
$m [18]
|
Funding
1998-99
$m
|
Population as at 9/97 |
$/per head in 1997-98 |
| NSW |
40.967 |
31.100 |
31.100 |
6,293,000 |
4.94 |
| Victoria |
35.502 |
32.955 |
27.750 [19] |
4,617,400 |
7.14 |
| Queensland |
19.821 |
18.574 |
18.000 |
3,417,400 |
5.44 |
| South Australia |
10.091 |
9.379 |
9.000 |
1,418,600 |
6.60 |
| Western Australia |
12.546 |
8.285 |
8.250 |
1,805,400 |
4.59 |
| Tasmania |
4.442 |
3.720 |
3.720 |
472,700 |
7.87 |
| ACT |
2.921 |
3.147 |
3.006 |
309,200 |
10.17 |
| Northern Territory |
2.011 |
2.436 |
2.011 |
188,700 |
12.91 |
| Totals |
128.303 |
109.596 |
102.837 |
18,588,600 |
5.90 |
1.16 The Committee was told that the funding for the Northern Territory
was not reduced with the move to the new agreements, because the amount
it had been spending on Commonwealth matters prior to the new arrangements
was actually slightly more than the Commonwealth had been providing. [20]
1.17 The Law Council of Australia commented on the differences in per
capita funding: `In an environment where Commonwealth legal aid funding
is designed to support only Commonwealth matters, it is difficult to understand
why there is such a significant discrepancy between the States and Territories
on a per capita basis'. [21] The Committee
notes that the Commonwealth has not sought to achieve equal per capita
funding in all jurisdictions. The then Secretary of the Attorney-General's
Department, Mr Stephen Skehill, explained to a Senate Estimates Committee
hearing on 20 August 1997:
No, we never set out to do the agreements on the basis of an equal amount
of legal aid per head of population. That has never been a consideration
in our minds. The greater consideration has been to get legal aid over
time and we certainly have not achieved this yet meeting the need rather
than any simplistic arithmetic formula of X dollars per head of population.
There are a number of bases on which the need for legal aid varies from
jurisdiction to jurisdiction because of differing age distributions, differing
wealth distributions, differing criminal activity distributions and so
on. [22]
1.18 Mr Norman Reaburn, a Deputy Secretary of the Department, subsequently
told this Committee on 29 August 1997 that a major factor in the per capita
disparities was that prior to 1 July 1997 some jurisdictions were providing
a far greater level of Commonwealth legal aid than others. [23]
He explained that the calculations used to determine the level of Commonwealth
funding from 1 July 1997 were largely based on the level of services actually
provided by the various jurisdictions in 1995-96. [24]
He added that the Commonwealth was conducting a needs study which was
expected to assist it to align the level of funding more closely with
actual needs in each jurisdiction in the future. [25]
(See paragraph 2.28 below on this needs study.)
1.19 The agreements, except for that for Queensland, all contain what
appear to be transition provisions allowing a part of the amount allocated
to be spent on state or territory legal aid matters. The detail varies.
For example, the agreement with South Australia recognises that it will
spend 14 per cent of the Commonwealth funding provided in 1997-98 on state
legal aid matters, and 12 per cent in 1998-99, but does not allow for
any such expenditure in 1999-2000. [26] The
agreement with the ACT allows ten per cent to be spent on territory matters
in each of the first two years, but again makes no mention of the 1999-2000
year. [27]
1.20 The Committee notes that these transition provisions appear to reduce
the amount of funding available for Commonwealth matters in 1997-98 and
1998-99. The South Australian Legal Services Commission told the Committee
that its expenditure on Commonwealth matters in 1995-96 was just over
$9 million. Under the new arrangements the Commonwealth agreed to provide
$9 million a year until 1999-2000. However, the Commission said that deducting
the 14 per cent that it will spend on state matters leaves only $7.75
million for Commonwealth matters in 1997-98. [28]
1.21 Equally, the effect of these transition provisions is to force cuts
in expenditure on legal aid for state/territory matters in the later years,
unless the state or territory is willing to cover the shortfall. For example,
Victoria Legal Aid is reported to have warned the Victorian Government
that it will need an extra $4.7 million in 1999-2000 to replace the Commonwealth
funding which it will no longer be able to use to fund legal aid for state
matters. [29]
1.22 The agreement with Victoria contains a special provision which the
Committee was told was negotiated at Victoria Legal Aid's request. Under
this the funding is viewed on a three-year basis. In order to facilitate
the transition to the new arrangements, the amount for the first year
has been increased from about $29 million to $31.5 million, with compensating
reductions to $27.75 million to occur in each of the two subsequent years.
[30]
1.23 In each jurisdiction, the total amount specified is to cover general
funding for Commonwealth legal aid matters. It also includes the Commonwealth's
contribution towards a number of related activities identified in each
of the agreements, in differing terms. The Queensland agreement, for example,
allocates $1.2 million for child support, [31]
$1.765 million for the cost of Commonwealth matters arising from duty
lawyer, legal advice and community legal education services, and $55,000
for community legal centre administration. [32]
Separate representation of children
1.24 In a 1994 decision, Re K, [33]
the Full Court of the Family Court set out guidelines on when an order
for separate representation should be made for a child whose interests
may be affected by the outcome of proceedings in the Family Court. In
Chapter 5 of its Second Report the Committee addressed the question
of the capacity of the legal aid system to provide for this separate representation
of children where necessary in the pursuit of justice.
1.25 The Second Report noted that the number of legal aid applications
for separate representation appeared to have stabilised, following the
rapid increases in the years immediately following Re K. [34]
Although the Committee did not re-examine this in great detail in hearings
since that Report, this appears to remain the position.
1.26 For example, the Chief Executive Officer of Legal Aid Queensland,
Mr John Hodgins, told the Committee that it sometimes went back to the
court and got a discharge order because it thought the original order
was not appropriate: `But the level of orders from the court has decreased
slightly. I think that is the court recognising our funding difficulties.'
[35] Others also referred to the impression
that the Family Court was exercising self-restraint in issuing orders
for separate representation, due to its recognition of funding difficulties.
[36] The Legal Aid Queensland provided statistics
showing that the number of separate representation grants by it in 1996-97
was 517, compared to 493 the previous year. [37]
In South Australia, there were 387 requests for separate representation
in 1996-97, compared with 479 requests the previous year. [38]
1.27 The Committee's Second Report noted the lack of a uniform
approach in the way the various legal aid commissions deal with some aspects
of separate representation applications. [39]
It appears that the variation is continuing. In particular, the Legal
Aid Commission in Western Australia continues to grant aid in respect
of only two of the thirteen categories identified in the guidelines in
Re K for the appointment of separate representation. The Committee
considers this in paragraph 5.103 below. Another area where different
approaches are taken by the commissions is in attempting to recover from
the parents where possible the costs of the separate representation. [40]
The Dietrich decision
1.28 In Chapter 4 of its Second Report, the Committee discussed
the implications for legal aid of the High Court's 1992 decision in Dietrich
v The Queen. [41] In effect, if the accused
can successfully argue that he comes within the criteria set down in that
case, then his trial will not go ahead until the legal aid commission,
or some other arm of government, provides the funding for his defence.
[42]
1.29 The Committee did not revisit the implications of Dietrich
in any depth in its hearings since the Second Report. However,
it notes that there are no comprehensive, readily available, statistics
on the number of Dietrich applications being made. [43]
The fragmented and anecdotal information collected by the Committee in
the last 12 months indicates that the number of applications for
stays on Dietrich grounds is increasing. [44]
1.30 The Committee observes that some of the applications may be made
with a view to delaying proceedings rather than ultimately being successful.
[45] Also it should be borne in mind that many
of the Dietrich applications arising from refusals of funding by
legal aid commissions involve a dispute with the commission about whether
the applicant in fact has the means to provide for his or her own defence.
[46] In any event, it appears that the number
of stays actually granted in Commonwealth matters has remained very small
so far. [47] The office of the Commonwealth
Director of Public Prosecutions advised the Committee on 22 May 1998
that there were four matters being prosecuted by the Office which have
been stayed on the basis of the Dietrich principle. [48]
These cases are:
- Michael Fuller and Joseph Cummings who were charged with offences
against section 229(4) of the Companies (WA) Code (improper use
of position). They were refused legal aid by both the Legal Aid Commission
of Western Australia and the Commonwealth. They were committed for trial
in 1993 and on 1 June 1995 the prosecution was stayed under the principles
in Dietrich by the District Court of Western Australia.
- Michael Fuller and Joseph Cummings who were also charged in South
Australia with offences against the Companies (SA) Code and the
Criminal Law Consolidation Act (SA). They were refused legal
aid by Legal Services Commission of South Australia. The prosecution
was stayed on 29 August 1997 by the South Australian Court of Criminal
Appeal. The Commonwealth Director of Public Prosecutions has requested
that Fuller and Cummings reapply for legal aid under the new Commonwealth
legal aid guidelines. The Attorney-General's Department advised the
Committee on 22 May 1998 that the provision of this aid `is currently
an issue for discussion between the Commonwealth and the Commission,
and the court has adjourned the matter indefinitely until the issue
is resolved'. [49]
- Graeme Thomas Smith who was charged with offences contrary to sections
1317FA and 232(6) Corporations Law (improper use of position).
On 15 May 1998, the District Court of South Australia ordered a stay
of these proceedings. The Commonwealth Director of Public Prosecutions
will consider appealing this decision once final orders are entered.
- Philip Chee Ming Ng who was charged with conspiracy to import a commercial
quantity of heroin contrary to section 233B of the Customs Act. The
County Court of Victoria ruled that it had no jurisdiction to order
legal aid be provided under section 360A of the Crimes Act (Vic) and
that the accused was entitled to a Dietrich stay. Both rulings
were appealed to Supreme Court of Victoria which has reserved its decision.
1.31 Other Commonwealth matters affected by Dietrich orders have
now been resolved. In one, involving Anastasis Darcy Papas who was charged
with 65 counts of stealing and 23 counts of fraud under the Criminal
Code (WA), the carriage of the prosecution has been passed to the
Western Australian Director of Public Prosecutions. However, the matter
is still stayed on Dietrich grounds, and Mr Papas remains free
on bail. [50] In the case of Arthur and Andrew
Roberts who were charged with a conspiracy to import a trafficable quantity
of ecstasy, the District Court of Western Australia has refused the application
for a stay. In another case, the legal aid has now been granted.
1.32 In paragraphs 4.34 and 4.35 of its Second Report, the Committee
noted that the issue of a possible uniform legislative response to the
issues raised by the Dietrich decision had been on the agenda of
the Standing Committee of Attorneys-General since 1993. This remains the
case. The matter was discussed at the April 1998 meeting without reaching
any decision, and is due to be discussed at the next meeting. [51]
Government response to the Committee's previous reports
1.33 The Committee's first two reports made a number of recommendations.
In the First Report the Committee recommended that the Government
give consideration to establishing a high level representative task force
to advise Governments on the legal aid system and its place in Australia's
justice system. The Second Report contained a total of eight recommendations:
- relating to determining the extent of the legal profession's subsidy
of the legal aid system and improving the recognition of that contribution;
- designed to encourage the trialing of innovative methods of providing
legal information, advice and education by legal aid service providers;
- that the Commonwealth should ensure that the impact of the Dietrich
principle on the legal aid system is monitored, and that the Attorney-General
take up in the Standing Committee of Attorneys-General the need for
it to complete its consideration of the impact of the Dietrich
principle as a matter of priority; and
- that adequate funding be available to legal aid commissions for the
provision of separate representation of children in family law matters,
that steps be taken to determine more precisely the level of resources
required to achieve this, and that national uniform guidelines be developed
to be applied by the legal aid commissions when funding separate representation
matters.
1.34 In December 1997, the Government stated that it was considering
its response, and added the following comment:
The Government believes that it would have been inappropriate to respond
to the reports until all negotiations for new legal aid agreements had
been completed and new agreements signed by all States and Territories.
The last of the Commonwealth/State legal aid agreements has now been signed.
The Government notes that the Inquiry is ongoing and that the Committee
intends to table further reports on this Inquiry. The Government will
table its response to the Committee's first two interim reports in the
near future. [52]
1.35 In the event, the response was not provided to the Committee until
26 May 1998, at a time when the Committee was at a very advanced stage
in completing the drafting of its current report. A copy of the response,
which covers both the First Report and the Second Report,
is included as Appendix 3 of this report. In the response the Government
substantially rejected all the Committee's recommendations, giving only
brief reasons for doing so.
1.36 The Committee notes that it has taken the Attorney-General some
14 months and 11 months respectively to formulate and deliver responses
to the Committee's considered views. The delay in responding is a very
clear indication of the fact that the Attorney-General and the Government
have failed to appreciate the very significant problems that they have
created in the legal aid system.
1.37 The response is a further clear indication that the Government draws
upon a very narrow pool of advice. The fact that this advice has been
previously flawed is not acknowledged in any form in the response.
1.38 The Government's response is, in the Committee's view, a wilful
disregard of the concerns expressed by a wide range of witnesses and submissions
to the Committee's Inquiry.
1.39 The response is a strong indicator that the Government will ensure
that the legal aid system will continue to fail Australians.
Footnotes
[1] See particularly, Senate Legal and Constitutional
References Committee, Inquiry into the Australian Legal Aid System:
Second Report, June 1997, paras. 2.3 to 2.11.
[2] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: First Report,
March 1997, paras. 2.2 to 2.5.
[3] See for example, Transcript of Evidence,
Legal Aid Commission of NSW, p. 1714: `some cases actually take eight
years before they are concluded'.
[4] See for example, Transcript of Evidence,
Federation of Community Legal Centres, p. 492; Submission No. 85A,
National Network of Women's Legal Services, p. 13.
[5] Compare Transcript of Evidence, Legal
Services Commission of SA, p. 1603 (describing the way in which matters
already in progress were allowed by the Commission to continue notwithstanding
that the cap was exceeded); Legal Aid Commission of NSW, p. 1721 (no case
in which representation in family law matters was denied by the Commission
at a crucial period of a trial).
[6] Submission No. 44C, Legal Services
Commission of SA, p. 2. See also, Transcript of Evidence, Legal
Aid Commission of NSW, pp. 542-3 for the actions taken by that Commission.
[7] Senate, Hansard, 17 November 1997,
p. 8856.
[8] Senate, Hansard, 17 November 1997,
p. 8856.
[9] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: First Report,
March 1997, para. 3.2.
[10] `Legal Aid funding hiccup affecting staff:
director', West Australian, 14 March 1998, p. 35. An important
factor in the overall uncertainty was uncertainty over state government
plans concerning the management and funding of the Commission. See also
Submission No. 183A, Law Society of WA, p. 8: `The present system
of drip feeding the Commission is most unsatisfactory and should not continue.
It makes it almost impossible to budget and does nothing for the morale
of those employed by the Legal Aid Commission or indeed the service providers
within the private profession.'
[11] Transcript of Evidence, Attorney-General's
Department, p. 1824.
[12] Note that in Queensland, unlike the other
jurisdictions, the agreement is with the legal aid commission rather than
the government itself. However, the Committee was told that the level
of funding provided for in the agreement was a matter of agreement between
the Queensland and Commonwealth Governments: Transcript of Evidence,
Legal Aid Queensland, p. 1759.
[13] The reason for the six-month term of the
initial agreement was that the Western Australian Government anticipated
changing its legal aid legislation: Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 13 November
1997, Attorney-General's Department, p. 156.
[14] The agreement with Tasmania contains five
schedules. The Commonwealth guidelines are in schedule 5. Schedules 3
and 4 deal with state funding arrangements and priorities.
[15] Transcript of Evidence, Attorney-General's
Department, p. 1825; Submission No. 35D, Victoria Legal Aid.
[16] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 13 November
1997, Attorney-General's Department, p. 157.
[17] Payments and funding data based on figures
supplied by Attorney-General's Department. The figures for payments in
1997-98 and funding for 1998-99 were provided on 22 May 1998. Population
estimates as at September 1997 were taken from Australian Bureau of Statistics,
Australian Demographic Statistics, 3101.0, September Quarter 1997,
p. 11.
[18] Most of these payments are slightly larger
than the amounts contained in the agreements, which totalled only $106.587
million. The Attorney-General's Department explained the `differences
in the figures reflect reimbursement payments made to commissions during
the year for 1996-97 costs in relation to war veterans' matters, child
support scheme matters and expensive criminal cases': Submission No.
127F, Attorney-General's Department, p. 2.
[19] See para. 1.22 below for the unequal division
of funding across the three years covered by the agreement with Victoria.
[20] Transcript of Evidence, NT Legal
Aid Commission, p. 1656.
[21] Submission No. 126A, Law Council
of Australia, para. 1.3. See also Submission No. 183A, Law Society
of WA, pp. 6-7.
[22] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 20 August
1997, Attorney-General's Department, p. 50.
[23] Transcript of Evidence, Attorney-General's
Department, p. 1277.
[24] These arrangements, described in the Committee's
Second Report, paras. 2.10 and 2.11, used as a base level the funding
provided in 1987. As the Attorney-General's Department noted in 1996:
`The arrangements have, however, attracted criticism because they simply
adopt 1987 levels as the base and therefore entrench any inequities in
legal aid funding that existed at that time' (Attorney-General's Department,
`Issues Paper for the Senate Legal and Constitutional References Committee',
June 1996, p. 9.)
[25] See also Transcript of Evidence,
Attorney-General's Department, p. 1823: `The idea behind that [needs study]
is to see if we cannot begin to make a more effective distribution of
the available moneys to those parts of Australia where we judge, with
as much assistance as possible in objective terms, where the levels of
need are greatest'.
[26] Agreement between Commonwealth of Australia
and State of South Australia in relation to Provision of Legal Assistance,
18 July 1997, Schedule 1, para. 5.4.
[27] Agreement between Commonwealth of Australia
and Australian Capital Territory in relation to Provision of Legal Assistance,
10 October 1997, Schedule 1, para. 5.4. In the Agreement between Commonwealth
of Australia and Northern Territory of Australia in relation to Provision
of Legal Assistance, 4 July 1997, Schedule 1, the relevant provision (para.
2.2) is not described as a `transition' provision and it provides that
up to 15 per cent of the funds may be used on territory matters for each
of the three years of the agreement.
[28] Transcript of Evidence, Legal Services
Commission of SA, p. 1595.
[29] `Legal aid juggles tighter budgets', The
Age, 23 April 1998, p. 8.
[30] Submission No. 35F, Victoria Legal
Aid, pp. 5, 7; Transcript of Evidence, Victoria Legal Aid, p. 1402.
See also Senate Legal and Constitutional Legislation Committee, Estimates
Hearings, Transcript of Evidence, 13 November 1997, Attorney-General's
Department, p. 158.
[31] The Commonwealth provides this funding
for services under the Child Support Act 1988 which are delivered
through the legal aid commissions. The funding comprises grants to specialist
child support units at the commissions and reimbursement for casework
for the additional family law caseload generated by the Child Support
Scheme.
[32] Agreement between Commonwealth of Australia
and Legal Aid Queensland in relation to Provision of Legal Assistance,
30 June 1997, Schedule 1, para. 2.1.
[33] (1994) 117 FLR 63.
[34] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, para. 5.36.
[35] See also Transcript of Evidence,
Legal Aid Queensland, p. 1767.
[36] See for example, Submission No. 85A,
National Network of Women's Legal Services, p. 6.
[37] Submission No. 80B, Legal Aid Queensland,
p. 1.
[38] Legal Services Commission of SA, 19th
Annual Report 1996-97, p. 15.
[39] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, para. 5.48.
[40] Transcript of Evidence, National
Association of Community Legal Centres, p. 1455.
[41] (1992) 177 CLR 292.
[42] Special procedures have been introduced
by legislation in Victoria to deal with Dietrich cases: see Crimes
Act 1958 (Vic), s. 360A, and discussion in the Committee's Second
Report at paras. 4.30 to 4.33.
[43] See Mr B Walker SC, President of the Law
Council of Australia, `Maintaining concept of fair trial paramount in
any law reforms', Canberra Times, 2 May 1998, p. C3: `we do not
have collected, in one place, information on who is making such applications,
the types of matters in which they are made, what examinations have been
made of the applicants' finances, and how many Dietrich-type applications
have been successful'.
[44] Transcript of Evidence, Victoria
Legal Aid, p. 1403; Law Society of SA, p. 1569; Submission No. 126A,
Law Council of Australia, para. 5.8. See also Senate Legal and Constitutional
Legislation Committee, Estimates Hearings, Transcript of Evidence,
2 June 1998, Director of Public Prosecutions, p. 44.
[45] The Western Australian Director of Public
Prosecutions, Mr John McKechnie, was reported as saying that defendants
were using Dietrich to delay trails: `Defence lawyer ruling abused:
QC', West Australian, 8 October 1997, p. 4. The Welfare Rights
and Advocacy Service in Perth told the Committee of delays in remote areas
in getting legal aid applications processed in time for the commencement
of proceedings. If other avenues were not available: [we] just say to
them, `Go to the duty lawyer and plead the Dietrich defence.' The magistrates
have got that way that they are very unhappy with the community legal
centres because we tell lots of people that this is the strategy; to get
it put off while they process the legal aid application. (Transcript
of Evidence, p. 1550-1)
[46] Transcript of Evidence, Victoria
Legal Aid, p. 1403; Senate Legal and Constitutional Legislation Committee,
Estimates Hearings, Transcript of Evidence, 2 June 1998, Director
of Public Prosecutions, pp. 43-4.
[47] Senate, Hansard, 17 November 1997,
p. 8854: the Commonwealth Director of Public Prosecutions identified only
six Commonwealth matters as being affected by Dietrich stays, and
in some of these no actual stay order had been made by a court. The Committee
was told that in 1997 in South Australia it appeared that only four Dietrich
stay orders had been made, one of which was in a Commonwealth matter:
Transcript of Evidence, Law Society of SA, pp. 1569, 1585; Legal
Service Commission of SA, p. 1593.
[48] Commonwealth Director of Public Prosecutions,
`Supplementary information on cases being prosecuted by the Commonwealth
DPP and affected by applications based on the Dietrich principle',
produced at the request of the Committee and provided on 22 May 1998.
[49] Submission No. 127G, Attorney-General's
Department, p. 2.
[50] Submission No. 127G, Attorney-General's
Department, p. 13.
[51] Attorney-General, Hon D Williams AM QC
MP, News Release, 17 April 1998, `Agreement to address the length and
cost of trials'.
[52] `Government Responses to Parliamentary
Committee Reports: Response to the Schedule Tabled by the Deputy President
of the Senate on 25 June 1997', 2 December 1997, p. 9.