CHAPTER 2
Inadequate data on the state of the legal aid system
Introduction
2.1 The Law Council of Australia stated in May 1998:
An underlying problem in the legal aid debate has been the obscurity
of financial and usage data, and the appropriate use of those data in
directing the legal aid funds where they are so desperately needed. [1]
2.2 In its submission to the Committee in December 1996, the National
Association of Community Legal Centres argued that it was not appropriate
for the Commonwealth to make decisions to reduce legal aid expenditure
in the absence of more comprehensive information on the need for legal
aid in Australia. [2]
2.3 The Committee is concerned that the changes went ahead in the absence
of adequate information and hence without adequate planning. More importantly
for the future, the Committee is concerned that insufficient monitoring
is now occurring and the information currently being collected is not
adequate to permit a proper assessment of the severe impact that the changes
appear to be having.
2.4 In the Committee's view, there are several deficiencies in the existing
data, including:
- the lack of timeliness in the production of the Attorney-General's
Department's Statistical Yearbook, and the apparent lack of relevance
of some of that data;
- the lack of adequate data upon which to make an informed judgment
of the demand for legal aid services which is not being met; and
- the absence of data by which to measure the impact the 1 July 1997
changes are having on the legal aid system.
2.5 Each of these points is considered below.
Inadequacies of the Statistical Yearbooks
What the Yearbooks contain
2.6 The Attorney-General's Department has published a Statistical Yearbook
on legal aid in Australia, beginning with the issue covering the 1993-94
year. Each legal aid commission supplies data to the Department for inclusion
in the Yearbook. Each annual issue runs to about one hundred pages. The
issues contain data, mainly in tabular form with brief narrative summaries,
on applications made for legal aid. The data is dissected in a variety
of ways:
- by state/territory, by source of application (eg. direct to the commission,
through a private practitioner, a duty lawyer, etc), by gender, by law
type;
- into applications granted/refused;
- into applications where the legal aid service was provided by commission
staff and those referred out to private practitioners;
- by time taken to finalise matters; and
- by cost.
2.7 In addition, the Yearbooks contain data on the legal advice services
and duty lawyer services provided by the commissions. They also provide
a very detailed breakdown of data on the commissions' clients, including
factors such as age, gender, place of birth, social security benefits
received and income level. Information in these categories is cross-tabulated
by applications received, granted and refused.
2.8 The Committee was told that the scope of the data collected was based
on discussions with all the jurisdictions before the 1993-94 Yearbook
was produced. At that time all of the parties were of the view that such
data would be useful. [3]
Delays in producing the annual volumes
2.9 The Committee notes that the Yearbooks have not been produced in
a timely way. The 1995-96 Yearbook was not released by the Department
until February 1998, notwithstanding that it bears a cover date of `July
1997'. The Yearbook for 1994-95 was not ready for distribution until late
June 1997. [4] The 1996-97 Yearbook has still
not been released. The Department indicated on 26 March 1998 that it expected
the Yearbook to be published in late May 1998. [5]
However, on 22 May it advised that publication should occur in late June.
[6] The Committee notes that the Department
has apologised for the delays, and explained that in part they are due
to matters outside its control. [7]
2.10 The Committee considers these delays to be unacceptable. If the
data is to be of any assistance in monitoring the state of the legal aid
system it must be produced in a more timely manner.
Relevance of the information included
2.11 Questions were raised before the Committee about the adequacy and
relevance of the statistics in the Yearbooks. For example, Mr Robert Cornall,
the Managing Director of Victoria Legal Aid, responded to questions on
this from the Committee:
From my point of view, as the managing director of Victoria Legal Aid,
there is very little information in the yearbooks that I would regularly
turn to for aid in managing the business. I do not know what the origin
of the detail of the information that is published in the yearbooks is.
I do not know for what purposes the Commonwealth originally decided to
keep it and to what purposes the Commonwealth puts it. But in terms of
managing Victoria Legal Aid, the yearbook really has no relevance. [8]
2.12 The Committee understands that the Yearbooks are not intended primarily
as a management tool. Financial and other data is maintained by the legal
aid commissions for this purpose, some of which is published in their
annual reports and much of it is available to the Commonwealth either
on a regular basis or on request. [9] However,
this raises the question of who does use the Yearbook data and for what
purpose. It seems that there is no clear answer to this.
2.13 The Committee is aware that the Department has in the past used
the data for internal research projects and provided it to agencies such
as the Family Law Council and the Institute of Criminology. [10]
However, an academic, Mr Jeff Giddings, commented to the Committee that
`the statistics end up being seen to a certain extent in isolation from
the policy development which is taking place in the operation of existing
policies'. [11]
2.14 The Committee comments that the data presented in the Yearbooks
is not targeted at the issue of dividing Commonwealth from state/territory
legal aid matters, quite apart from the fact that the Yearbooks were not
sufficiently up to date to inform the Commonwealth's 1996 decision to
enforce this separation. This reinforces the Committee's view that the
decision was not made in a fully informed way.
2.15 The Committee notes that the Attorney-General's Department is currently
examining the utility of the data which the legal aid commissions have
been providing to it and which forms the basis of the Yearbooks. Because
the Commonwealth has largely withdrawn from the funding of state and territory
legal aid matters, it is now reconsidering whether it requires all the
data. Mr Norman Reaburn, the Department's Deputy Secretary, advised the
Committee in March 1998:
We now have a situation where New South Wales is not providing state
side data, but all of the other jurisdictions are still supplying it.
We have gone to other jurisdictions and said, `We need to look again at
this question of what value there is in this material.' A number of jurisdictions,
in informal discussion, are saying to us, `Yes, we still think it is valuable,
and it would be good if you guys kept collecting it.' But at the moment
we are not in a position to collect it and have it complete for the whole
of Australia. As far as the Commonwealth is concerned, it is of much more
limited use in terms of the Commonwealth's direct interests in monitoring
and accounting for the Commonwealth contribution. [12]
2.16 It is understandable that the Legal Aid Commission of New South
Wales would decide to no longer provide data to the Commonwealth on state
matters, given the way in which the funding cuts and the Commonwealth/state
division were unilaterally imposed upon it by the Commonwealth. However,
the Committee would be concerned if one of the effects of the new legal
aid arrangements were to be that data on the operation of the legal aid
system was no longer collected and published on a national basis, and
in a way that facilitated comparisons between jurisdictions. It is in
the interests of all concerned that such comparisons be able to be made
in order to compare the performance of the commissions in the individual
jurisdictions. National Legal Aid told the Committee that it could see
the benefits for legal aid as a whole if there was better national data:
[13]
If we had better national data and we could use that to benchmark off
each other and find out who has the best practices and who is doing things
smarter across the commissions, then other commissions could learn from
that and pick up those practices. [14]
2.17 In addition, as discussed in the Committee's Second Report,
the Committee does not accept the Commonwealth's present view that it
should abdicate all responsibility for the provision of legal aid services
for state and territory matters. [15]
2.18 The Law Council of Australia put to the Committee its view that
the Commonwealth had a peculiar and perhaps primary responsibility to
provide information on the operation of the legal aid system in Australia,
given its ability to be a clearinghouse for such information. [16]
The Committee agrees with this view.
2.19 However, the Committee does not have any concluded view on the utility
of collecting and publishing the all the detailed data that currently
appears in the Yearbooks. Elsewhere in this Report the Committee recommends
that data not presently being made available in any systematic way should
be collected and published. The Committee acknowledges that there is a
cost to collecting and publishing data. It may be that savings can be
made by no longer collecting and publishing some of the detailed information
that appears in the Yearbooks.
Inadequate data on the `unmet need' for legal aid
2.20 One important factor in assessing how the legal aid system is operating
is the extent to which it fails to provide legal services to all who need
them. This is sometimes referred to as the `unmet need'. [17]
2.21 The Federation of Community Legal Centres put the issue clearly
to the Committee:
We feel that there is a real lack of information about what the actual
level of unmet legal need is in the community. There is no properly researched
or resourced study into legal need in Australia. It is very difficult,
therefore, to say that we know what we are doing when we cut legal aid
budgets or tighten guidelines. We do not know what effect that will have
because we do not know what the need is. [18]
2.22 The Federation explained that it was not seeking a limitless amount
of funding for the legal aid system. Rather, it wanted the needs to be
first established, and then decisions made about the level of funding
to be provided to meet those needs: `The problem we see with the way the
government has gone about it is that it has decided the amount of money
it is prepared to provide in terms of funding prior to establishing the
needs that should be prioritised'. [19]
2.23 One measure of the unmet need is the number of applications for
legal aid that are refused. Because of the length of time taken to produce
the Statistical Yearbooks, there is no comprehensive up-to-date data available
on this. Therefore the Committee has had to rely on less comprehensive
figures and on anecdotal information. Some of the information indicates
an increase in unmet need in the last two years or so. However, interpretation
of refusal rates is sometimes complicated by a decline in the number of
applications. [20] The decline is widely attributed
to a perception that legal aid is now no longer so readily available.
2.24 As a result, a comprehensive assessment of the extent to which the
legal aid system is meeting needs has also to take into account those
who never approach a legal aid commission or other provider because they
assume that legal aid will not be forthcoming. Others may not realise
that they have a legal problem, due to the lack of legal advice.
2.25 Mr Robert Cornall of Victoria Legal Aid explained to Committee:
our rejection rates are not an indication of unmet demand. If, for example,
we have a guideline, as we now do, that says that we will not provide
assistance in a civil matter which could be conducted under a conditional
fee agreement with a private practitioner, people will stop sending us
applications. You can never measure those applications you never see.
[21]
2.26 The Australian Council of Social Service advised the Committee:
People might not know that they have been wronged, that there are services
around to help them. They might feel too intimidated by a system that
is unfamiliar to them, not speak the language, not have the intellectual
capacity and so on. Basically, being low income and disadvantaged is a
starting point to finding access to legal services difficult. Therefore,
they are not registering their demand. We are not finding out about it.
If you measure legal need by reference only to demand, you are missing
half the problem. [22]
2.27 The Legal Aid Commission of New South Wales put to the Committee
the example of the Consumer Credit Code which is relatively new and complex
legislation. Many people who have a cause of action under the Code would
not be aware of their need for legal advice. [23]
2.28 The Committee notes that the question of determining the need for
legal aid has been long-standing. [24] The
Commonwealth has recognised that it requires better information on the
extent of the need. In 1995 the Attorney-General's Department sought tenders
from consultants to carry out a two-phase study on the demand for legal
aid services. At that stage it expected to receive a final report by 20 June
1996. [25] Phase one was the development of
a methodology to establish an equitable basis for the distribution of
funds for legal assistance. Phase two was:
intended to identify needs in addition to expressed demand for services
in order to assist in determining Commonwealth priorities for service
delivery and provide a basis for future allocation of any new Commonwealth
funding for legal assistance. [26]
2.29 In the event, the report on phase one was not delivered until the
end of 1996, [27] at which time the Attorney-General's
Department advised the Committee that phase two would proceed in 1997.
[28] In February 1998, the Department advised
that the second phase was then about to start, but it declined to put
a firm date on when the overall study was expected to be completed. [29]
It also explained the delay:
We were not able to continue the consultation phase last financial year
during the renegotiation of the new agreements. There was some difficulty
in getting the steering group together so we decided to leave that until
the new agreements were settled and then bring the parties together. [30]
2.30 The Department indicated that it did not regard the completion of
the study as particularly urgent. This was because the legal aid agreements
with the states and territories were mostly not due to expire until 30
June 2000, and it expected the information provided by the study to inform
what happens to the agreements after that date. [31]
2.31 The Committee was told by the South Australian Legal Services Commission
that it appeared to it that the purpose of the needs study was `to identify
the carve up of the … cake, not determine the size of it'. [32]
In the Committee's view it should be used to assist in determining how
much the should be spent on legal aid, not just how a given amount should
be divided among jurisdictions and different types of law matters.
2.32 In October 1996 the Commonwealth advised the states and territories
that it was then too early to be precise about the amount of Commonwealth
funding to be provided under the arrangements to take effect from 1 July
1997. It added: `The final allocation of funds for 1997-98 will be driven
to a large extent by the outcome of a review of legal aid need that is
currently in progress'. [33] Clearly this did
not happen, as Attorney-General's Department acknowledged to the Committee.
[34]
2.33 In the Committee's view, this failure was a serious matter. It provides
further evidence that new arrangements were unduly hasty and were Budget-driven,
rather than based on any proper assessment of, and concern for, the legal
aid needs of the Australian community.
Inadequate monitoring the impact of the 1 July 1997 changes
2.34 Mr Bret Walker SC, the President of the Law Council of Australia,
told the Committee in February 1998 that the information being provided
on the legal aid system was inadequate:
it is particularly difficult for the Law Council, which ought to be in
a position by its umbrella status in relation to the profession around
the country, to be relatively well informed about this matter. It is particularly
unsatisfactory that there is such a paucity of information. We assume
that the Commonwealth, under the new arrangements, which themselves are
not necessarily completely known all around the country, is receiving
information of the most detailed accounting kind as well as, we hope,
quality management information which would enable monitoring to be carried
out. If that is so, none of those analyses have been shared with other
stakeholders in the system.
The absence of information makes it difficult, for example, and indeed
impossible in the present context, for me to put precise figures on what
we would call the shortfall [in legal aid funding]. Leave aside the difficulty,
which is a bit like the length of a piece of string, of working out what
the proper level of services is against which you should measure the present
provision so that you can then measure the shortfall. That is a difficult
enough problem as it is. We have an even more fundamental problem. There
is simply not the availability of information. [35]
2.35 The Committee is concerned that there is no Commonwealth program
in place to monitor the impacts of the changes to the legal aid system
which formally took effect on 1 July 1997. The needs study referred to
in the previous section will presumably provide some relevant information.
But the Committee believes that large gaps will remain. The Committee
has already referred in Chapter 1 above to the absence of adequate data
on the incidence of Dietrich applications and on the applications
in family law proceedings for separate representation for children.
2.36 As the Committee discussed in Chapter 2 of its Second Report,
legal aid operates as one element in a complex justice system. Any reduction
in the availability of legal aid may adversely affect other parts of the
system. As a result, any credible assessment of the impact of the 1997
funding cuts must extend beyond legal aid statistics and must include
information from other areas of the justice system.
2.37 Those denied assistance due to the shortage of legal aid funding
are forced to go elsewhere to try to obtain help, or to conduct their
own cases without legal representation, or simply give up. Thus the numbers
of applications made to voluntary providers of legal services and the
number of unrepresented litigants appearing in the courts can, with appropriate
analysis including identification of trends over time, give some indication
of how the legal aid system is performing. No satisfactory data is available
on either of these matters. However, the information that is available
to the Committee strongly suggests that major difficulties are being experienced.
2.38 The Federation of Community Legal Centres advised the Committee
in February 1998 that it was conducting surveys in an attempt to provide
relevant information on the impact of the changes on community legal centres.
It said, however, that it lacked the resources to do all the research
necessary. [36] While the Committee welcomes
the Federation's initiative, it considers that the Commonwealth itself
should be taking the steps to ensure that data of this sort is collected,
analysed and published.
2.39 The Committee received anecdotal information that there have been
increased demands for the free (`pro bono') services traditionally provided
by the legal profession. [37] There may also
have been some reduction in the ability of the profession to provide these
services, as the legal aid cuts have reduced incomes in the profession.
No systematic data is available to assist in evaluating impacts of these
sorts.
2.40 The Victorian Bar Council told the Committee of the absence of data
on the number of unrepresented litigants in Victoria, and on the number
receiving inadequate representation because of a shortfall in legal aid
funding. The Council said it was trying to obtain this data from the various
courts in Victoria, both state and federal. [38]
The data in other Australian jurisdictions is similarly either not publicly
available, or only available to a limited extent. The Committee discusses
the evidence indicating a marked rise in the number of unrepresented litigants
in Chapter 3. It notes there the cogent claims put to it that the effect
of the cuts in legal aid funding may often be leading to increased costs
for courts, prosecutors and others.
2.41 The Committee regards it as highly unsatisfactory that not even
basic data on trends and numbers is available to assist in evaluating
these claims. Given the absence of the basic data, it is not surprising
that there is nothing better than anecdotal information available to inform
discussion on the crucial question whether the costs flowing from the
legal aid cuts are outweighing the savings.
Fragmentation of the legal aid system
2.42 The Australian Law Reform Commission advised the Committee in March
1998 that there is greater uniformity and standardisation of the terms
on which legal aid is provided under the new legal aid agreements. However,
the Commission said:
there is a fundamental problem with the system it lacks co-ordination
at the national level. The Commission has concerns that the individualised
approach to legal aid by the Commonwealth may lead to fragmentation, inefficiencies
and duplication between legal aid services in different states. [39]
2.43 The Commission identified areas in which it believed that greater
co-ordination would be beneficial. These included:
- improving access to experts such as child psychologists a nationally
co-ordinated register of expert witnesses could reduce costs associated
with finding required experts and, where appropriate, allow utilisation
of generic expert reports;
- overcome duplication of information and educational materials;
- ensure that the Community Legal Education Register, which has not
been updated since 1996, is updated and maintained; and
- ensure that research and developments in one jurisdiction are evaluated
for possible use in other jurisdictions.
2.44 In February 1998, Legal Aid Queensland showed the Committee its
new legal information database system which it has been developing to
assist it in providing a telephone information service throughout the
state. It is examining allowing others to access the system, such as community
legal centres, and allowing access through its Web site. [40]
The Committee regards this as another example of developments at one legal
aid commission that ought to be readily available for evaluation by other
commissions.
2.45 The Australian Law Reform Commission stated that under the old arrangements,
initiatives were being taken to try to profit from the experience and
the specialisation that may develop in a jurisdiction. It commented: `As
far as we have been able to determine, many of those, to the extent that
the Commonwealth was involved, are not being prosecuted or are falling
away'. [41]
2.46 Overall, the Committee is concerned that the Commonwealth's retreat
from a central role in the legal aid system to one of being interested
only in Commonwealth matters will result in a loss of co-ordination and
cross-fertilisation. This would be to the detriment of the legal aid system
generally, and the Committee considers that it should not be allowed to
occur. At a time when policy objectives demand an increasingly national
approach, it seems to the Committee to be incredible that the Commonwealth
is retreating from that approach.
Conclusions and recommendations
2.47 The Committee concludes that the changes made by the Commonwealth
to the legal aid system were based on insufficient information. The way
that they came about displayed more concern to achieve savings than with
their impact on the legal aid system and access to justice. The Committee
also concludes that insufficient steps are being taken by the Commonwealth
to collect, analyse and publish meaningful data on the impact of the changes
to the legal aid system. It considers that, to be meaningful, such data
must include the wider impact of the changes, including the effect on
the operation of the courts, prosecution authorities, community legal
centres and other providers of free legal services.
Recommendation 1
The Committee recommends that:
- the Commonwealth continue to be a clearinghouse for, and publisher
of, detailed information on the operation of all aspects of the Australian
legal aid system, not just those parts it directly funds;
- the Commonwealth take steps to collect, analyse and publish more meaningful
data on the impact of the changes on the legal aid system and on the
continuing operation of the system;
- this data be in a standardised form that enables comparisons between
jurisdictions and over time; and
- the Attorney-General's Department examine in consultation with
National Legal Aid and the individual legal aid commissions whether
there is any continuing need for all of the data presently contained
in its Statistical Yearbooks on legal aid in Australia to be collected
and published.
2.48 The Committee considers that as the Commonwealth retreats to being
involved only in Commonwealth matters there is a risk that valuable co-ordination
and cross-fertilisation activities amongst the various legal aid bodies
will be lost.
Recommendation 2
The Committee recommends that the Commonwealth retain an active
role in promoting co-ordination and cross-fertilisation of innovations
and research among the various legal aid bodies in Australia, notwithstanding
its decision to fund only Commonwealth matters.
Footnotes
[1] Law Council of Australia, Media Release,
14 May 1998, `No Increase in Legal Aid Funding "Of Great Concern",
Law Council President Tells National Press Club', p. 1. See also Submission
No.101B, Springvale Legal Service Inc, p. 1: `… the dearth of
research into the level of need in the legal aid system prior to the implementation
of the cuts, and into the impact of those cuts …'.
[2] Submission No. 90, National Association
of Community Legal Centres, p. 28.
[3] Transcript of Evidence, Attorney-General's
Department, p. 1827.
[4] Senate Legal and Constitutional Legislation
Committee, Examination of Budget Estimates 1997-98: Additional Information,
vol. 2, September 1997, p. 399.
[5] Transcript of Evidence, Attorney-General's
Department, p. 1817.
[6] Submission No. 127G, Attorney-General's
Department, p. 10.
[7] Transcript of Evidence, Attorney-General's
Department, p. 1329.
[8] Transcript of Evidence, Legal Aid
Victoria, p. 1413. See also Transcript of Evidence, National Legal
Aid, pp. 1660-1.
[9] Transcript of Evidence, National
Legal Aid, p. 1650.
[10] Senate Legal and Constitutional Legislation
Committee, Examination of Budget Estimates 1996-97: Additional Information,
vol. 1, November 1996, p. 259.
[11] Transcript of Evidence, Mr J Giddings,
p. 1771.
[12] Transcript of Evidence, Attorney-General's
Department, p. 1827.
[13] Transcript of Evidence, National
Legal Aid, p. 1650.
[14] Transcript of Evidence, National
Legal Aid, pp. 1658-9.
[15] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, para. 3.24.
[16] Transcript of Evidence, Law Council
of Australia, p. 1309.
[17] See for example, National Legal Aid Advisory
Committee, Legal Aid for the Australian Community, July 1990, p.
256 for discussion on the use of the term.
[18] Transcript of Evidence, Federation
of Community Legal Centres, p. 1449.
[19] Transcript of Evidence, Federation
of Community Legal Centres, p. 1461.
[20] See for example, Transcript of Evidence,
Legal Aid Commission of WA, pp. 1518-19.
[21] Transcript of Evidence, Legal Aid
Victoria, p. 1413. See similarly Submission No. 90, National Association
of Community Legal Centres, p. 28.
[22] Transcript of Evidence, Australian
Council of Social Services, p. 994. See similarly Submission No. 88,
National Legal Aid, p. 9.
[23] Submission No. 84, Legal Aid Commission
of NSW, section 1.2.1.
[24] See for example, National Legal Aid Advisory
Committee, Legal Aid for the Australian Community, July 1990, Chapter
8.
[25] Attorney-General's Department, `Brief
to consultants to undertake a legal assistance needs study', p. 2.
[26] Attorney-General's Department, `Brief
to consultants to undertake a legal assistance needs study', p. 1.
[27] Rush Social Research and John Walker Consulting
Services, Legal Assistance Needs Phase I: Estimation of a Basis Needs-Based
Planning Model, December 1996.
[28] Submission No. 127, Attorney-General's
Department, p. 4.
[29] It subsequently advised that phase two
was due for completion later in 1998: Submission No. 127G, Attorney-General's
Department, p. 11.
[30] Transcript of Evidence, Attorney-General's
Department, p. 1330.
[31] Transcript of Evidence, Attorney-General's
Department, pp. 1331-2.
[32] Transcript of Evidence, Legal Services
Commission of SA, p. 1613.
[33] Attorney-General's Department, `Renegotiation
of the Commonwealth-State/Territory Legal Aid Agreements', 10 October
1996, para. 54 (this document forms Appendix 3 to the Committee's First
Report).
[34] Transcript of Evidence, Attorney-General's
Department, p. 1824.
[35] Transcript of Evidence, Law Council
of Australia, p. 1308-9.
[36] Transcript of Evidence, Federation
of Community Legal Centres, p. 1449.
[37] Transcript of Evidence, National
Association of Community Legal Centres, p. 1452; Law Society of SA, p.
1578; Bar Association of Queensland, p. 1793.
[38] Transcript of Evidence, Victorian
Bar Council, pp. 1478-9.
[39] Submission No. 108B, Australian
Law Reform Commission, p. 9.
[40] Transcript of Evidence, Legal Aid
Queensland, pp. 1745-51.
[41] Transcript of Evidence, Australian
Law Reform Commission, p. 1804.