CHAPTER 3
Funding issues
Introduction
3.1 The Committee received a large amount of written and oral evidence
critical of the changes that flowed from the Government's decision in
June 1996 to alter the legal aid arrangements. In its First Report
and in Chapters 1 and 2 of this report the Committee has discussed aspects
of the way in which the change was handled. The main focus of the remainder
of this report is on the criticisms of the system as it now is.
3.2 This Chapter first considers the view that the overarching problem
is that insufficient funding is now being put into the system. The remainder
of the Chapter considers two issues which are symptomatic of the lack
of adequate funding across all areas of the legal aid system:
- the rise in the number of litigants in person and their impact on
the justice system; and
- the contention that the funding of legal aid is inadequate to permit
appropriate salaries to be paid to legal aid commission staff and suitable
fee levels to be offered to private practitioners taking on legal aid
work.
3.3 The later Chapters of the report include discussion of the impact
of inadequate funding on specific areas family, criminal and civil law
and on particular categories of persons and organisations.
Views that the level of funding is inadequate
General comments
3.4 In its Second Report the Committee expressed its basic disagreement
with the Commonwealth Government's decision no longer to accept responsibility
for the funding of any matters arising under state and territory laws.
[1] Nothing that has occurred since then has
altered the Committee's view.
3.5 Overwhelmingly, the submissions and evidence to the Committee took
the view that increased Commonwealth legal aid funding was required. None
of the stakeholders in the legal aid system told the Committee that they
considered the current level of funding to be sufficient.
3.6 The Law Council of Australia told the Committee in February 1998
that the Commonwealth's contribution to the legal aid system `which is
presently, if artificially, tied to so-called Commonwealth work, is inadequate'.
[2] In its December 1997 submission the Council
argued that legal aid was under-funded. It noted that the Attorney-General's
Department had said in a June 1996 background paper prepared for the Committee:
The provision of funding for legal aid services represents a Commonwealth
commitment to the principle that Australians are entitled to justice,
and to assert their legal rights regardless of their financial circumstances.
[3]
3.7 The Law Council said it was difficult to reconcile this statement
with the severe restrictions imposed on legal aid in Commonwealth matters
by reason of the reduction in funding and the priorities and guidelines
which the Commonwealth had now imposed. [4]
3.8 The Law Society of Western Australia said in its February 1998 submission
that since the Commonwealth reduced funding there has been a radical reduction
in the accessibility of justice to those members of the public who are
in most need of assistance, with both the quantity and quality of services
being affected very adversely. [5] It summed
up its view of the new arrangements as follows:
it seems that the Commonwealth seems to be abandoning its position so
far as access to justice is concerned, and in reality really only wishes
to ensure that it is not embarrassed by Dietrich type applications, and
otherwise it gives the appearance of not particularly caring whether people
are properly represented within the court system and have proper access
to legal aid. [6]
3.9 The Law Society of New South Wales also pointed out the impacts that
the cuts were having on the availability of legal aid: `This chronic underfunding
of the legal system is shameful and reveals the Government is unconcerned
about marginalising poorer people'. [7] The
Legal Services Commission of South Australia said in its February 1998
submission: `Commonwealth cost cutting to legal aid is depriving the very
members of the community who most need it of legal representation and
advice'. [8]
3.10 The Chairman of Victoria Legal Aid, Mr Geoff Masel, stated earlier
this year:
The time has now arrived where VLA can conscientiously say we have done
our best and we can't manage into the future. … If you want us to
continue to meet our statutory obligations to provide legal aid in the
most effective, economic and efficient manner, we will need more money.
[9]
3.11 Legal Aid Queensland gave its view of the new legal aid agreements:
`They all have a common thread, in that they are not for enough money,
but nonetheless they are a consistent agreement in terms of guidelines
and priorities'. [10] Legal Aid Queensland
advised: `in effect, to manage those funds we have had to reduce approvals
in areas which hurt, and are hurting, people and our capacity'. [11]
It also said: `We are doing our best with the funds, but we would not
pretend to be meeting the needs of the community'. [12]
3.12 The Queensland Law Society acknowledged, as does the Committee,
that Legal Aid Queensland has been innovative and constructive in the
way it has tried to live within its reduced budget. But the Society said
that at the end of the day, the only answer was to provide more money.
[13] The Society summed up:
As we see it, the real impact of the federal cutbacks is in the number
of people who apply to Legal Aid who are being knocked back, the shrinking
areas in which legal aid is made available and, finally, the sort of capping
issues and the hourly rates that are being paid, which mean that fewer
and fewer firms can really do legal aid without losing big time by doing
it. [14]
3.13 The Victorian Bar Council argued that as a result of the Commonwealth
funding cuts and the policies introduced by Victoria Legal Aid:
The situation has now arisen in Victoria where many in the community
are unable to receive any advice, representation or advocacy service at
all. Those who do fall within the VLA guidelines will, by virtue of policy
limitations, not receive the same quality of service as that available
to those who can afford to pay for it, and, significantly, will receive
an inferior quality of service to that previously available when legal
aid was granted. Both the Commonwealth and State governments have a core
obligation to ensure that this situation does not continue. [15]
3.14 The Committee notes that it is not only the legal aid commissions
and lawyers associations that have expressed concern about the under-funding
of legal aid. Judges have expressed concerns about the effect of the funding
cuts on the operation of the courts. [16]
3.15 Community legal centres and others providing free legal assistance
services have experienced marked increases in the calls made on them from
those now being denied legal aid. For example, Springvale Legal Service
in Victoria told the Committee: `The basic view of Springvale Community
Legal Service is that what is required is adequate funding for legal aid
services or reinstatement of what really was inadequate but is better
than the situation we have now'. [17]
3.16 The impacts of the funding cuts on courts, community legal centres
and others are described in some detail later in this report.
Reports of funding crisis
3.17 On 29 January 1998, the Sydney Morning Herald reported that
the Legal Aid Commission of New South Wales was `fast running out of money
to fund people appearing in the Family Court or those facing serious charges
under Federal laws'. [18] The story quoted
commission sources as saying that the Commonwealth's annual funding of
$31 million was expected to be exhausted in March. On 27 February 1998,
the Hon Alastair Nicholson, Chief Justice of the Family Court, informed
the Committee in relation to the Commission's funding:
They tell me that their funding situation is now reaching a critical
stage where they will have to be starting to take more difficult decisions
in relation to these cases [relating to children] than they have in the
past. [19]
3.18 The Committee sought information from the Attorney-General's Department.
Mr Norman Reaburn advised it on 26 March 1998 that there would be funds
available for Commonwealth matters in New South Wales for the remainder
of the financial year. The Committee asked if that entailed any forward
borrowing from funds allocated for next year. Mr Reaburn responded: `We
are handling this issue within the envelope of the whole agreement, which
is over a three-year period'. [20]
3.19 The Committee notes a subsequent media report which stated that
the Commonwealth had agreed that the Legal Aid Commission of New South
Wales could overspend the 1997-98 allocation by using funds allocated
to the next year. [21] The same article stated
that Legal Aid Queensland was expected to slightly overrun its budget
in 1997-98. On 2 June 1998, the Attorney-General's Department advised
that New South Wales would be allowed extra funding this year which is
to be recouped from funds allocated to the third year of the agreement.
However, it said that there had been no need to give approval to bring
forward funding in any other jurisdiction. [22]
3.20 The Committee regards news that a legal aid commission is being
forced into using next year's funds to meet this year's expenses as further
evidence of the inadequate level of funding provided in the agreements.
The absence of any formula in the mainly three-year agreements to increase
funding according to the rate of inflation means that the level of legal
aid services would decline in 1998-99 and 1999-2000 from the already inadequate
level in the current year. The Commonwealth, by allowing a later year's
funding to be used to help pay for this year's services, is ensuring that
the decline will be even more pronounced and the level of services even
more inadequate.
Litigants in person
Need for more comprehensive information
3.21 In its Second Report the Committee noted concerns that the
changes in the legal aid funding arrangements would lead to an increasing
number of litigants being denied legal aid and appearing in court unrepresented.
[23]
3.22 The Committee considers that the percentage of litigants who appear
unrepresented and changes in this percentage over time can be used as
indicators of how well the legal aid system is operating.
3.23 The Committee has found, however, that there is no comprehensive
data available on the percentage of cases in which parties appear unrepresented.
[24] The Committee considers that such data
should be available, at least for courts above the bottom tier, in which
the need for representation is likely to be greatest. The Committee considers
it important that data on unrepresented litigants is taken into account
by legal aid commissions and the Commonwealth in assessing the proper
level of funding required for the legal aid system. [25]
Recommendation 3
Accordingly, the Committee recommends that, in order to assist
in measuring how well the legal aid system is operating, the Government
should collect, analyse and publish annual data on unrepresented litigants
appearing in the Family Court, the Federal Court, the state and territory
Supreme Courts and District/County Courts, and the courts hearing appeals
from those courts.
3.24 In parenthesis, the Committee notes that the Family Law Council
is hoping in the 1998-99 financial year to mount a study on litigants
in person, including the reasons why they chose to appear unrepresented
and their impacts on the Family Court and on individuals. [26]
The Committee commends such a study. The Australian Law Reform Commission
is also conducting research on the issue in relation to the Administrative
Appeals Tribunal and the Federal Court which it expects to provide useful
data by the latter part of 1998. [27]
3.25 The Committee recognises that data on unrepresented litigants cannot
be used in isolation from other indicators on the legal aid system. In
using this data, allowance needs to be made for litigants who choose to
represent themselves, either because they feel that they can do a better
job than a lawyer, or because they have become disillusioned with lawyers,
or for some other reason unrelated to the non-availability of legal aid.
Allowance also needs to be made for the simple and straightforward matters
in which there is no need for a person of average ability to use a lawyer.
Efforts being made by many courts to simplify their procedures may increase
the range of matters in which legal representation is not warranted. It
would be obviously incorrect to attribute any rise in unrepresented litigants
resulting from this to any deficiency in legal aid funding. In addition,
some regard needs to be given to situations in which the denial of legal
aid may have been justified, but the litigants elect to continue notwithstanding
the chances of success in their case. [28]
3.26 The Committee also considers that the data would be more meaningful
if it distinguished between those who never had access to legal aid for
the matter in question and those who only commenced to act for themselves
because the legal aid funding they were allocated ran out during the course
of proceedings. The Committee recognises the difficulty there may be in
making this distinction. It was told that some litigants are now opting
to act for themselves in preliminary matters in order to conserve their
limited legal aid funding for the main proceedings. [29]
It may be that it will become increasingly common for some litigants do
the less complicated parts of their cases themselves, relying on a lawyer
only for the remainder. Court records may not readily disclose this pattern
of representation.
The numbers of unrepresented litigants
3.27 In the absence of comprehensive data, the Committee was forced to
rely on partial statistics from particular courts and on impressions of
those close to the courts. The predominant view was that there had been
a significant increase in unrepresented litigants and that this was attributable
to restrictions on the availability of legal aid to a large extent. [30]
However, the link with legal aid did not specifically relate to the changes
to the funding arrangements which commenced on 1 July 1997: it predated
that change. [31] The Attorney-General's Department
told the Committee in May 1998 that it was not aware of any data which
purports to show that there has been an increase in the number of unrepresented
litigants as a result of the new funding arrangements. [32]
3.28 Chief Justice the Hon Alastair Nicholson of the Family Court told
the Committee that he believed that there had been a rise in the number
of unrepresented litigants appearing in the Family Court, although precise
figures were not available. He also observed:
Another feature starting to emerge is a steady rise, for example, in
appellants in person, running at about 30 per cent of our appeals at this
stage. I see that as important because, if you look at appeals, there
is about a 30 per cent success rate, and the appellant jurisdiction is
an area where it is very important that the arguments can be put well
by the appellants themselves. In many cases, unrepresented appellants
are either inarticulate or too articulate, in a sense. They find it very
difficult to get to where the issues are, and I do not think that is a
happy situation. [33]
3.29 The Chief Justice of Western Australia, the Hon David Malcolm, said
in December 1997:
The number of unrepresented persons in the Court of Criminal Appeal has
increased from 44 in 1995 to 69 in 1997, while the number of represented
persons has fallen from 193 in 1995 to 128 [for the year to] to 30 November
1997. In 1993 one in five were unrepresented. In 1997 more than one in
three were unrepresented. They are unrepresented because they have been
denied legal aid. This is a very unsatisfactory situation. One result
is undue delay in getting the cases of unrepresented applicants and appellants
ready for hearing. [34]
3.30 The Chief Judge of the Family Court of Western Australia, the Hon
Justice Michael Holden, informed the Committee that he had no doubt that
there had been a large increase in the number of unrepresented litigants
appearing in his court compared to a few years ago. [35]
He provided statistics which showed that in the first three months of
1998, in one-third of the long cases one or both sides were appearing
in person: in the short direct track matters, one or both sides appeared
in person in two-thirds of the cases.
3.31 The Committee notes the view that in Western Australia it is in
the lower courts that there has been the greatest increase in unrepresented
litigants. The Law Society of Western Australia informed the Committee:
It is in the lower courts that one has seen people going to trial unrepresented
or not getting proper representation. The limited funds have been taken
from representing people in the lower courts to representing people in
the higher courts, because people in the higher courts have to be represented
on serious criminal charges, otherwise they can make a Dietrich application
and the trial will then be stopped. So what has effectively happened is
that money is being taken from other places in order to ensure that people
in the District and Supreme Courts get funded for their trials. [36]
3.32 Chief Justice the Hon Jeffrey Miles of the ACT Supreme Court said
that the numbers of unrepresented litigants were increasing in his Court,
and the tendency might be expected to increase if fewer people are granted
legal aid. [37]
3.33 The Victorian Bar Council informed the Committee that the number
of unrepresented appellants appearing before the Victorian Court of Appeal
is increasing, and in the January 1998 over 50 per cent of the appellants
were unrepresented. Moreover, about half of those appearing unrepresented
succeeded in whole or in part in their appeals. [38]
3.34 Mr Bruce Barbour of the Administrative Appeals Tribunal informed
the Committee that the numbers of unrepresented parties appearing before
the AAT in the social security area have increased. It appeared that this
was related to a reduced availability of legal aid. [39]
However he added that this was not altogether to the AAT's disadvantage,
as in the less complex matters lawyers tended to add unnecessary length
to proceedings. [40]
Impact of unrepresented litigants
3.35 Those who addressed the issue in evidence and submissions to the
Committee were in little doubt that unrepresented litigants imposed significant
additional costs on the courts and other parties in the proceedings, quite
apart from whatever injustice they did to their own cause. [41]
As the NSW Director of Public Prosecutions told the Committee, it is important
in our system of adversarial proceedings that all parties are adequately
represented by competent counsel, not just for justice to be done to the
parties but for the court system to work at its optimum. [42]
3.36 Unrepresented litigants often require greater assistance from court
registry staff. They often take more hours of court time to conduct their
case than a competently represented party would. This is because they
tend to be less organised in the presentation of their case, they have
difficulty distinguishing the relevant from the irrelevant, they sometimes
fail to make concessions on points on which they are bound to lose anyway,
and they generally require procedural guidance from the judge throughout
the course of the trial. [43] They also tend
to generate more frequent interventions by counsel from the opposing party
because they stray more frequently from the requirements of the rules
of evidence. [44] On the other hand, some cases
take less time because the unrepresented party does not understand what
the proceedings are about or how to present their case. [45]
3.37 The Committee was told that with an unrepresented litigant there
was an increased likelihood of an error occurring during the trial leading
to a successful appeal which resulted in a retrial. [46]
Without the benefit of informed legal argument by appropriately experienced
counsel there is a risk that inadequately informed judgments will be handed
down. [47]
3.38 Where unrepresented litigants cause proceedings to be longer than
they otherwise would, the legal costs of the other party are obviously
increased. This may go beyond causing additional expense. For example,
the Committee was informed of one case in which two adjournments were
caused by the inadequacy of the documentation filed by the unrepresented
party. The effect of the adjournments was to exhaust the legal aid funding
of the other party. [48]
3.39 The extra costs incurred are unlikely to be able to be recovered
from the unrepresented litigant. It was explained to the Committee that
a court in exercising its discretion is less likely to make a costs order
against an unrepresented party that loses, thereby increasing the chances
that the winning party will have to bear its own (increased) costs. [49]
3.40 The extra costs imposed on the opposing party fall on the public
purse if the opposing party is legally aided or is the government. For
example, the Department of Immigration and Multicultural Affairs told
the Committee that its workload is greater when an applicant challenging
its decision is unrepresented in the courts or the Administrative Appeals
Tribunal. This was because the courts and the AAT tend to place greater
reliance on it to provide information, as they are reluctant to dismiss
for want of prosecution without evidence that an application does not
raise substantive issues. [50] Similarly the
submission from the Commonwealth Director of Public Prosecutions noted
that it is difficult for a prosecutor to communicate with an unrepresented
accused about complex issues in a criminal trial, and consequently the
prospects of determining what issues are truly in contention are diminished.
[51]
3.41 The Committee was advised that it was more likely that the Family
Court would order separate representation for a child if the spouses were
unrepresented: `The more unrepresented parents there are, the more need
for children to be represented separately'. [52]
3.42 The added stress, antagonism and human costs imposes on all participants
in cases involving unrepresented litigants are referred to in paragraphs
9.47 to 9.49 below. Here it is sufficient to note that these factors may
make the cases more difficult to resolve, thereby increasing costs.
3.43 While many, perhaps nearly all, unrepresented litigants clearly
create extra costs and problems for the courts in which they appear, the
Committee would be concerned if this led to restrictions on their rights.
The Victorian Bar Council drew one such possibility to the Committee's
attention:
An example is unrepresented litigants on appeal. Instead of the Victorian
government saying it is unacceptable that 50 per cent of our litigants
front the Court of Appeal unrepresented, the knee-jerk reaction is, `We
need to look at whether people should necessarily have the right to appeal.
Perhaps we should be removing the right, in a cross-section of cases,
for people to appeal.' [53]
3.44 It is widely assumed that the extra costs imposed on the public
purse by having an unrepresented accused due to the denial of legal aid
outweigh the costs that would have been incurred in providing that aid.
[54] The Committee was provided with some examples
where this appeared to have occurred. [55]
It regards the assumption as highly plausible. However, it seems there
has been no specific empirical study to confirm or refute the assumption.
The Attorney-General's Department advised the Committee in May 1998 that
it was not aware of any data which supports the view that reductions in
expenditure on legal aid are a false economy. [56]
3.45 The Committee comments critically in Chapter 2 on the fact that
there is no systematic monitoring or evaluation of the impact of the funding
reductions on the legal aid system. A particular facet of this is that
there is no evaluation system in place to determine if the funding reductions
are imposing increased costs elsewhere in the justice system, and in net
terms are costing the taxpayers more, not less. [57]
The Committee considers that this is unacceptable.
Recommendation 4
Accordingly, the Committee recommends that the Government examine
and report on whether savings made by denying legal aid are outweighed
by the extra costs imposed on the public purse by unrepresented litigants.
Disparities in salary levels and fee rates
3.46 It was suggested to the Committee that one measure of the inadequacy
of the funding provided for legal aid was the disparity between the rates
that the Commonwealth paid for legal services when it was itself a litigant
and the rates which legal aid commissions could afford to pay. Item (5)
in the Committee's terms of reference of 17 September 1996 asked
it to inquire into:
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).
3.47 This requires the Committee to address two matters. One is the salary
levels for in-house legal aid lawyers compared to the salary levels of
other lawyers working in the Commonwealth public sector. The other is
the rates of payment when matters are briefed out to the private profession
by legal aid commissions and the Commonwealth Government.
Comparison of salary levels
3.48 Some submissions provided the Committee with details of the salary
levels paid by legal aid commissions to their in-house legal staff. They
said that these compared unfavourably to salaries paid by the Commonwealth
to lawyers working in the Commonwealth public service, in particular in
the Australian Government Solicitor's office and the office of the Director
of Public Prosecutions. For example, the NSW Legal Aid Commission told
the Committee:
It is widely acknowledged that the salaries paid to legal officers employed
by LACNSW are below those paid to legal officers performing work of similar
complexity in other government departments, both State and Commonwealth.
[58]
3.49 The Community and Public Sector Union told the Committee that its
members who were working for legal aid bodies reported that they are paid
up to 20 per cent less than their counterparts working in the offices
of the Directors of Public Prosecutions, particularly at the Commonwealth
level. [59]
3.50 The Committee notes that the comparison of salary levels is complicated
by the fact that they are continually changing, and the position is not
the same in all states and territories. [60]
A few of the variations at least seem not to be attributable to any view
about the worth of legal aid work or the amount of funding. Rather they
appear to be due to the linkage between legal aid salaries and the state
or territory public service on the one hand and the linkage between Commonwealth
legal salaries and its public service salary structure. [61]
The overall salary structures in the respective public services may differ
for a variety of reasons at any given time. As public-service wide arrangements
are displaced by agency-level agreements, comparisons have become even
more difficult to make as the picture becomes more fragmented, with trade-offs
of working conditions for salary occurring and items such as performance
pay needing to be taken into account.
3.51 A second difficulty is that a simple comparison of salary levels
does not reveal whether the work performed at comparable levels is in
fact of the same degree of difficulty and responsibility. [62]
The Committee lacked the resources necessary to conduct the sort of study
that would be needed to address this point fully. [63]
However, it notes the view put to it that the differing salary levels
are not explained by differing duties and responsibilities. [64]
3.52 A further point is the extent, if any, to which any lower salaries
offered by legal aid commissions reflect a deliberate choice on the part
of both the commissions and their staff. The NSW Legal Aid Commission's
submission stated:
LACNSW recognises the low salaries paid to its staff. However, because
the LACNSW is a welfare organisation, there are limits to the extent to
which it can improve remuneration through enterprise agreements. Money
spent on salaries is money taken away from the provision of services to
clients. [65]
3.53 The Committee concludes that, while making accurate comparisons
is fraught with difficulty, it is highly likely that as a generalisation
the salaries paid to the in-house lawyers at legal aid commissions are
lower than those doing work of equivalent responsibility, skill and quantity
as in-house employees of the Commonwealth.
Comparison of rates of payment to private profession
3.54 Submissions provided more information and comment on the rates of
payment to the private profession than on the question of salary levels
for in-house legal work. [66] The general view
was that the Commonwealth was prepared to pay more when it engages private
lawyers to act for it in litigation than the rates offered to lawyers
by the legal aid commissions. Some observed that pertinent data on rates
paid by the Commonwealth-as-litigant was not publicly obtainable. [67]
The Committee notes that the Commonwealth has long insisted that this
information remain confidential on both commercial and privacy grounds,
[68] although in 1994 the then Attorney-General
agreed to provide information to Parliamentary committees in response
to specific requests. [69]
3.55 The Bar Association of Queensland provided the Committee with its
view of the level of fees actually paid by the Commonwealth to private
practitioners acting for it:
Without breaching any confidentiality, however, it is able to be positively
stated that the levels of fees the Commonwealth pays for such services
are substantially higher than the rates of payment made in legal aid matters
to lawyers in private practice. [70]
3.56 The Family Law Council said in its submission: `The Council notes
that the fees paid by the Director of Public Prosecutions to prosecutors
in criminal law are considerably higher than those paid by legal aid to
defendants'. [71] Mr Colin McDonald of the
Northern Territory Criminal Lawyers Association told the Committee that
appearing for the Commonwealth in prosecutions was probably twice as remunerative
as doing legal aid work. [72]
3.57 National Legal Aid referred to the evidence gathered by the Committee
and told it in February 1998: `We say it should be clear to the committee
by now that legal aid commissions are paying private lawyers much less
than they can expect to receive from either government or from private
litigants'. [73]
3.58 The Committee notes that there are difficulties in making the comparison
required by the terms of reference. This is partly because the Commonwealth
data is not available in a way that assists comparison. [74]
It is also because of the difficulty in ensuring that like is compared
to like in terms of the work expected to be performed for the rates paid.
3.59 The Committee was told that that the legal aid commissions use their
positions as major purchasers of legal services in the market place to
obtain substantial discounts from private practitioners. Historically
they have payed 80 per cent of the scale fee for most matters. [75]
However, the concept of rates based on a scale is now becoming less common.
[76] The Committee was told of situations where
much less than the scale or notional fee was paid, and the scale itself
had not been adjusted for some considerable time to cater for inflation.
In Western Australia, the scale for some matters was actually reduced
in December 1997. [77]
3.60 The ACT Legal Aid Office's submission stated: `In the ACT, practitioners
performing legal aid work are paid between 60% and 80% of scale fees,
sometimes less'. [78] National Legal Aid said
in its submission that when compared with market rates, the legal aid
rate `varies from around 50 per cent to 70 per cent, and perhaps 75 per
cent in some areas'. [79]
3.61 There is a considerable variation in the rates at which legal aid
fees are actually paid in the various states and territories. This is
due in part to the differing fee scales or base rates that exist. It is
also due to many variations in what items are included in the basic fee
and what items can be separately itemised and remunerated, and to varying
allowances for things such as the amount of preparation time.
3.62 The Legal Aid Commission of Western Australia provided the Committee
with some comparative data it had compiled. It had described some sample
criminal law matters, including in the descriptions items such as the
number of prison visits required and the number of remands and a range
of extra items (eg. viewing a video). These were sent to the various legal
aid commissions with a request that the legal aid fee payable on each
matter be provided, together with the details of the calculation. [80]
The results indicated wide variations. For example, for the sample matter
involving a plea in mitigation at district court level on five charges,
the lowest fee was $545 by the ACT Legal Aid Commission and the highest
was $2,230 in Victoria. [81] Another sample
matter was a three-day district court trial involving two charges of assault
causing grievous bodily harm. The fees ranged from $1,930 to $8,500. [82]
3.63 In addition to the variables already noted, the Committee's attention
was drawn to the increasingly restrictive way in which the chargeable
extras are now being defined. It was argued that this represented a reduction
in remuneration. For example, a brief may contain a limit on, say, the
amount of preparation time that will be paid for. If the lawyer considers
that more preparation time is essential, then he or she contributes that
extra time without remuneration, thereby reducing in effect the daily
or hourly rate set in the brief. [83] Capping
may have a similar effect if the amount allowed runs out before the trial
finishes. If the lawyer is obliged by the court rules, ethical rules or
a sense of duty to continue to act until the end of the trial, the extra
days are not remunerated, thereby again reducing the rate set in the brief.
[84] Mr Michael Abbott QC, President of the
South Australian Bar Association, for example, commented in March 1997:
The failure of the Legal Services Commission to recognise that there
are many areas where some fee should be paid, where in fact no fee or
hardly any fee is currently paid, is, I think, regrettable and symptomatic
of the level to which things have regressed at present. Little is paid
for reading time; hardly anything is paid for conferences; there is no
reimbursement so far as barristers are concerned for photocopying they
seem to ignore that there exists in this world a fax machine and that
it is an expense which ought to be reimbursed and the work that a barrister
has to do by way of pre-trial work. [85]
3.64 The Victorian Bar Council provided the Committee with a 1997 study
it had commissioned into Victoria Legal Aid's fee scales for barristers
in Victoria. Amongst other things, this found that the maximum possible
income barristers could earn in 1997 after deducting overheads and other
expenses was $32,852 if they practiced in the Magistrates Court, $50,314
in the County Court and $72,571 in the Supreme Court. This compared to
the annual income of barristers acting for the Victorian Office of Public
Prosecutions, which ranged from $80,000 up to $148,000 per annum. [86]
The study also found that police prosecutors appearing in the Magistrates
Court have an income ranging from $44,000 up to $54,965. [87]
The study estimated that the income (adjusted for CPI) of barristers doing
legal aid work would decline in the next few years. [88]
However, Victoria Legal Aid has challenged several key aspects of the
methodology used by this study, and provided other information which suggested
that barristers' earnings from legal aid were higher than the study claimed.
[89]
3.65 If there are difficulties in collecting pertinent data on the legal
aid side of the comparison, there are also difficulties on the Commonwealth
side. The two main avenues by which Commonwealth has engaged private practitioners
to act for it have been through the Australian Government Solicitor (AGS)
and the Director of Public Prosecutions (DPP). [90]
3.66 The Committee was told by the Attorney-General's Department that
the AGS, like the legal aid commissions, uses its market power and that
most barristers briefed by it are paid rates `significantly lower' than
those prevailing in the open market. [91] However,
the Committee was not told of any system of seeking a fixed reduction
on the scale fee, comparable to the 80 per cent historically used by the
legal aid commissions. Rather, each fee is negotiated separately it seems.
[92] The Department said: `In a limited range
of cases, where particular skills or expertise are required, fees in excess
of the norm might be approved by the Australian Government Solicitor or
the Attorney-General'. [93]
3.67 Others pointed out cases very similar to legal aid matters in which
they said that the Commonwealth paid the full market rates. [94]
The Attorney-General's Department told the Committee that the legal assistance
provided under s. 183 of the Native Title Act is provided directly to
the litigants, not channelled through legal aid commissions. It is paid
at 100 per cent of the Federal Court scale fee if the matter is deemed
to be a test case, but otherwise at 80 per cent. [95]
On the full scale fee, junior counsel are paid at a daily rate of $1,360
and senior counsel at $2,800. [96] The Committee
comments that there is no equivalent in the legal aid sphere to this concept
of providing 100 per cent fees if the matter is a test case.
3.68 The Committee notes that the Commonwealth-as-litigant is seldom,
arguably never, in precisely the same position in litigation as the legally-aided
party. In criminal matters the Commonwealth appears as prosecutor, the
legally-aided party as defendant. There is no direct Commonwealth equivalent
to the role of spouses and children in family law matters. Even where
the litigation positions might at first glance appear to be equivalent,
the case may be a one-off matter for the legally-aided party but be regarded
as a major test case by the Commonwealth, which therefore feels justified
in allocating additional resources to presenting its case. (The opposite
may also be true: a matter may be vital to the particular litigant, but
of no test-case importance to the Commonwealth.)
3.69 The Committee notes the view expressed by the then Secretary of
the Attorney-General's Department, Mr Stephen Skehill, in February 1997:
We pay a range of fees across a spectrum from relatively low to medium
but not high for counsel that we brief for particular matters and generally
for purposes quite different from those which legal aid counsel are briefed.
… [any comparison] would be pretty much an apples and oranges comparison.
[97]
3.70 The other main source of Commonwealth briefs to the private profession
is the office of the Commonwealth DPP. Its submission pointed out that:
there are real difficulties with an analysis by which the DPP and Legal
Aid Commissions are sought to be compared on the basis that they perform
similar roles. The nature of the DPP's work and its role as Commonwealth
prosecutor tends to exclude any useful comparison between the DPP and
the Legal Aid Commissions. [98]
3.71 The DPP also said that the criminal prosecution work undertaken
by his office is on average more complex than the general run of prosecution
work. [99] Moreover, some 90 per cent of prosecutions
are done by in-house staff. [100] The office
normally only briefs members of the private bar when there is a need for
either specialist legal knowledge or high level advocacy skills. As a
result, the barristers briefed are predominantly the more experienced
and thus more expensive members of the bar. [101]
3.72 The then Director, Mr Michael Rozenes QC, told the Committee in
January 1997 that his office was not able to attract the same pro bono
element that led the private profession to do legal aid work at substantially
reduced rates:
I cannot say that prosecuting agencies are able to persuade the bar to
act for them in the same sort of capacity. We still pay significantly
less than what the marketplace demands. We are still able to get counsels
significantly cheaper than private solicitors can brief them against us.
There is a three-stage process if you like. I suspect at the bottom there
is the legally aided paid counsel. At the very top there is the privately
instructed counsel and I think the Commonwealth is somewhere in the middle.
[102]
3.73 The Committee asked Mr Rozenes QC what sort of discounts his office
was able to obtain. In response, he said that his office tried to obtain
the best possible result in the legal market-place, but said he could
not put a percentage on it:
I can't. I know that traditionally it has been the case that barristers
appearing for the Commonwealth do work cheaper than what they do at their
normal rate. I know that when I have negotiated fees, particularly with
silk in the jurisdictions, we do not pay more than $2,500 a day. I know
that those silks in private practice charge out $4,000 a day. With some
senior juniors you might only save a couple of hundred dollars, but it
is significant. [103]
3.74 His successor as Director, Mr Brian Martin QC, advised the Committee
in July 1997 that:
In New South Wales during the financial year 1995/96, the rates paid
to Junior Counsel ranged from $750 to $1,500 per day, with some exceptional
matters attracting a rate of $1,800 per day. Senior Counsel rates ranged
from $2,000 to $3,000 per day. [104]
Allegations of over-servicing by the DPP
3.75 Although not directly related to the disparity in salaries and payment
rates referred to in the terms of reference, the Committee received comments
in submissions and evidence that the office of the Commonwealth DPP was
unnecessarily extravagant in the way it had conducted cases. The comments
relied largely on anecdotal evidence based on particular cases. They involved
actions like the use of unnecessarily senior counsel, use of too many
counsel and support staff, and unnecessary use of inter-state counsel.
[105] The argument in part was that greater
economy on the part of the DPP's office would make more resources available
for legal aid. It would also avoid the appearance of unfairness, where
the number or seniority of the prosecution lawyers was much greater than
that of their opponents. [106]
3.76 The office of the DPP responded to the more specific of these claims.
It took the view that the particular cases relied upon did not, when all
the facts were known, disclose any extravagance on the part of the office.
[107] For example, one case involved an allegation
of inappropriate use of an inter-state DPP staff member, thereby incurring
unnecessary travel and accommodation costs. The DPP told the Committee
that the person had to be there anyway for other work-related reasons.
In addition, the defendant was a local lawyer, which made it highly desirable
not to engage another local lawyer to prosecute. [108]
3.77 The DPP also responded by pointing out that his office's role within
the criminal justice system is fundamentally different from the role of
a defendant's legal representatives, with greater burdens falling on the
former. [109] Equality of representation should
not therefore be expected. The then Secretary of the Attorney-General's
Department, Mr Stephen Skehill, made the same point in March 1997:
the onus that the prosecutor bears as compared to the role of the defence
in any trial is quite different. The burden is heavier. You may therefore,
quite justifiably in terms of role, find a difference in the appropriate
calibre of counsel on either side. ... A proposition that says that counsel
should be, on either side, of the same seniority and paid the same amount
is one that, I think, is not sustainable in terms of role. [110]
3.78 Mr Skehill also pointed out that, as a result of changes made a
few years ago, the office of the DPP now has to manage within a fixed
budget every year, so it has a very real incentive to manage its resources
efficiently and effectively. [111]
Impact of disparities
3.79 In summary, the Committee considers that the rates of remuneration
through legal aid to both in-house lawyers and the private profession
are probably less than those offered by the Commonwealth when it is acting
for itself. It remains to assess the significance of this.
3.80 Some argued that the Commonwealth was paying appropriate rates,
and that the disparity should be addressed by raising the legal aid rates.
[112]
3.81 However, the Committee notes the point made to it by Mr Rozenes
QC: `the fact that one lawyer is paid more dollars than another lawyer
does not create an injustice in the criminal justice system'. [113]
The Committee agrees, and it considers that this point applies equally
to non-criminal matters.
3.82 In the Committee's view, what matters is the adequacy of the legal
service provided. It agrees with the view of the Victorian Bar Council
that the proper test for the adequacy of legal aid rates is:
that we are able to say that, even within the funding constraints that
exist, sufficient money is allocated so that we can be satisfied that
the person's case will be adequately presented by the lawyers who are
engaged to deal with it. [114]
3.83 The Committee believes that it is essential that over time an adequate
quality of work is provided by a sufficient pool of competent private
lawyers willing to work for the rates on offer from the legal aid commissions.
If this occurs, then it does not appear to the Committee to be of major
importance that those lawyers are paid less than they might be if they
worked for other clients on some other basis of remuneration. [115]
3.84 In the Committee's opinion therefore, the key question is not the
one posed in the terms of reference on disparities. Rather it is whether
adequate representation is being provided by legal aid. The Committee
recognises that this is difficult to measure.
3.85 In relation to the work of in-house lawyers at the legal aid commissions,
the Committee found no evidence that the necessary standard of work was
not being maintained. For example, the NSW Legal Aid Commission submission
emphasised that, despite the lower salaries of its in-house lawyers, `the
quality of work performed has been recognised as exceptionally high'.
[116] This suggested to the Committee that
the NSW Legal Aid Commission is attracting high-quality staff at the salary
levels it offers. The Committee was told that higher job satisfaction,
commitment to the type of work and other intangible factors account for
this. [117]
3.86 It appears to the Committee that the position at the NSW Legal Aid
Commission is equally true at the other commissions. [118]
None of them told the Committee that they were unable to attract competent
staff at the salary rates they were offering. The Committee was told of
problems of stress, burnout and low morale. However, these were mainly
linked to the wider effects of reduced legal aid funding, uncertainties
about the future funding levels, internal restructuring and other factors,
rather than directly related to salary levels. [119]
3.87 In the Committee's view, the appropriate remedial action is to increase
funding to legal aid and increase the stability and long-term future of
the system, thereby increasing job satisfaction. Salary increases on their
own, while no doubt welcome, would not provide a comprehensive solution.
3.88 If the situation with in-house staff is one of coping under great
strain, the situation with respect to the private profession doing work
for the legal aid commissions is simply inadequate according to much of
the evidence presented to the Committee. Moreover, concerns were expressed
to the Committee that the current situation would deteriorate further
if more legal aid funding was not provided so as to enable higher remuneration.
[120]
3.89 This evidence indicated a widespread concern that many lawyers with
the necessary experience would elect to no longer do legal aid work due
to what they regard as the inadequate remuneration. For example, the Law
Society of Western Australia told the Committee:
what is going to happen, and it is happening more and more, is that senior
practitioners who would normally undertake quite a bit of legal aid work
in respect to serious matters are going to pull out and not do it because
of the amount of funding available and the amount that they would be paid
in respect to criminal matters. So that is a further concern, and it is
really an eroding of the availability of competent advice and competent
representation on serious criminal matters. [121]
3.90 Legal Aid Queensland said that the number of firms in that state
who expressed a continuing interest in doing legal aid work had fallen
from nearly 1,000 to about 400, and part of the decline was due to the
level of fees that the Commission could afford to pay them. [122]
Most of those who dropped out were filing less than ten legal aid applications
a month. The Family Law Practitioners Association in Queensland noted
this decline and commented to the Committee:
If we just look at what happens when people pay below market rates, you
really get two types of people who do the work. One is those who do it
from some sense of obligation or for some other benefit, and the other
group is those who cannot get any other work. Without being uncharitable
to those who do bulk legally aided work, they are perhaps in areas where
that is the only work available. There may be some who are building practices.
[123]
3.91 Mr Patrick Mullins of the Queensland Law Society said:
more and more I think we are going to find that matters are being handled
by more junior members of the profession who do not have the experience;
they might have the best of intentions, but the same level of service
is not provided. [124]
3.92 The Victorian Bar Council put to the Committee that with the current
funding structure, in the vast majority of cases, the legally-aided party
litigant is not going to get lawyers of sufficient experience and competency
to handle the matter. [125] The Committee
put to the Council the view expressed to it by Mr Robert Cornall, the
Managing Director of Victoria Legal Aid, who told the Committee:
We have gone through a period of significant change and redefinition
of the grounds on which legal aid will be granted. It is not surprising
that that causes some resistance and opposition from people who are used
to the system as it previously operated. We are not having any difficulty
finding practitioners who we believe are capable and competent to do the
work for our clients. We would expect that to continue. [126]
3.93 The Victorian Bar Council responded:
To the extent that Mr Cornall says there is a substantial supply of lawyers
who are prepared to continue to do legal aid work, that is probably correct.
Something in the order of 100 new barristers every year come into the
Victorian Bar. Those barristers would probably be prepared to go to court
for nothing in their very early times just to gain experience. Legal aid
has no difficulty in getting barristers. It has no difficulty in getting
solicitors, because there are some solicitors who are hurting and who
have no work.
… the legal profession is like any other profession. It has the
whole spectrum of people within it in terms of their ability and quality.
What flows from the legal aid funding structure is that legal aid has
to depend on people at one end of the spectrum, either because they are
very inexperienced or, because in a small minority of cases, they are
incompetent and they are never going to do any better. But they will do
this sort of work.
If Mr Cornall said to you that they have no difficulty in getting experienced
counsel, that is something that we would probably challenge. We do not
have a list from them of who, for example, over the last three months
they have engaged. We know that there is a significant pool of barristers
who used to do legal aid work who do not do any because they cannot survive
on the sort of fees that are paid by legal aid. [127]
3.94 The Committee notes that there is no readily available data, apart
from the anecdotal, that would enable the Committee to determine whether
those receiving legal aid in Victoria, or anywhere else in Australia for
that matter, in fact receive competent representation.
3.95 In addition to concerns about whether current fee levels are sufficient
to attract lawyers of adequate competence, concerns were also expressed
that, due to the inadequate or non-payment for items such as preparation,
prison visits to clients, and the like cases are not being adequately
prepared. For example, the South Australian Bar Association told the Committee:
there has been recent comment by the Full Court on the failure, so it
is said, of some solicitors in legal aid cases to adequately prepare the
case, a failure which the Full Court has recognised as a product of the
very low level of funding. This sort of thing, I think, is again symptomatic
of the problems that we have. [128]
3.96 Mr Craig Caldicott, a member of the Criminal Law Committee of the
Law Society of South Australia, told the Committee of the impact of the
low rates on the quality of representation that is provided:
What concerns me, as a practitioner, is that other practitioners are
cutting corners and are not doing the appropriate work, and the results
are horrific. There was one instance in court where a person had gone
to gaol for a period of four years because a solicitor had not done the
appropriate level of work on a legal aid matter prior to trial. If he
had done the appropriate work, that person would not be languishing in
gaol. There are instances where people are going to gaol when they are
innocent. They have been shoddily represented and they are languishing
in gaol because a solicitor simply does not have enough time or is not
paid enough to do an adequate job. We are not talking about doing even
a good job, just an adequate job.
We have people representing clients who simply do not have enough time
and who are so poorly paid that they are getting less than their secretaries
in an endeavour to try and represent these people. It is usually the hard,
difficult clients who are left to the young and inexperienced practitioners
who are paid, basically, a pittance. [129]
3.97 The Law Society of Western Australia told the Committee of similar
problems:
When you cannot get your photographs of the scene and you cannot afford
to do that, when you cannot get a person to go out and make a plan of
the scene of the crime, when you cannot get your expert reports, when
you cannot have the Commonwealth or the DPP's expert reports tested because
you do not have the funds to do that, then you are flying by the seat
of your pants. It is a terrible erosion of the ability of people to defend
themselves. Having a lawyer is part of the way, but having a lawyer who
is competent and who is fully prepared to the same extent that the DPP
is, is absolutely crucial. [130]
3.98 The Victorian Bar Council presented a similar picture to the Committee:
A common complaint made by members of the Family Law Bar Association
is that as a consequence of the paucity of funds being provided by VLA
to the solicitor on the record, the instructing solicitor is unable to
adequately prepare all of the necessary supporting material required for
the hearing. Consequently it is not uncommon for counsel to conclude that
the best result has not been achieved for a litigant because of the limitations
on the way in which the case could be prepared and presented. See, for
example, the case of R v. S heard by Graham J in February 1998. [131]
3.99 The Victorian Bar Council also argued that legal aid often failed
to provide the funds necessary to brief an accountant to prepare a financial
report on behalf of a party as to the assets and/or resources of the marriage,
or an independent assessment on children by experts or reports from private
psychologists. It said that as a result, cases which might have settled
at a far earlier stage and resulted in significantly less legal costs
being incurred cases did not do so. [132]
3.100 Evidence to the Committee suggests that allied to the view in the
legal profession that legal aid rates are simply too low is a changing
attitude to cross-subsidisation. Historically, the profits from other
work have been used by lawyers to subsidise the work they do at legal
aid rates. In its Second Report, the Committee noted that the increasing
economic pressures faced by the private legal profession were such that
it might not be able to maintain its current and historic level of contribution
to the provision of legal aid in Australia. [133]
Evidence taken since that report was made has underlined this possibility.
[134] The increased market-orientation of
legal practice is in part driven by less generous commitments on the part
of governments to legal aid funding. This orientation has, it appears
to the Committee, increased the reluctance of at least parts of the profession
to continue cross-subsidising their legal aid work.
Conclusions
3.101 The Committee concludes that the rates of remuneration through
legal aid to both in-house lawyers and the private profession are probably
less that those offered by the Commonwealth when it is acting for itself.
However, the Committee does not consider the existence of the discrepancy
to be the major issue. In its view what matters is whether legal aid is
providing competent representation for the salaries and fees it offers.
3.102 On this, the evidence with regard to in-house salaried staff suggested
to the Committee that a competent level of representation is being maintained,
though perhaps not without considerable difficulty.
3.103 In regard to the payments to private lawyers, the bulk of the evidence
to the Committee suggested that the competency of representation was likely
to suffer seriously unless payments were increased. Some of the evidence
indicated that this was already happening. The Committee regards this
situation as unacceptable.
3.104 The submission from National Legal Aid recommended on this point
that, amongst other things, that:
Commonwealth agencies pay less than a 25% loading on the local Legal
Aid Commission scales when paying private practitioners or Counsel to
act on their behalf. Where no scale exists, the rate of payment should
be the local Legal Aid Commission hourly rate. [135]
3.105 The Committee notes that this is in some ways an attractive recommendation
because it avoids the complex task of continually assessing the quality
of the work done under legal aid funding. Presumably the Commonwealth
could readily assess whether under such a payment regime it was receiving
legal services of an adequate quality. If it was not, the rate of remuneration
would rise, with an automatic flow-on to the legal aid rates of payment
and, presumably, to the quality of legal aid representation.
3.106 However, the Committee does not agree with this recommendation
for several reasons. First, the 25 per cent margin is not necessarily
sufficient to cater for the different roles and contexts in which the
Commonwealth purchases legal services for itself and those involved in
legal aid. Secondly, it would be very difficult to administer. As legal
aid commissions increasingly move away from payments based on scale fees,
wide variations can be expected to emerge both within and between jurisdictions.
3.107 The Committee's main reason for rejecting the recommendation is
that it does not directly address the central issue: is competent representation
being provided at legal aid rates? This, as discussed above does not necessarily
depend on the rates paid by other clients.
Recommendation 5
The Committee recommends that:
- the rates of payment to practitioners be set by the legal aid commissions
at sufficiently high rates to ensure that competent representation continues
to be provided to those receiving legal aid;
- the Commonwealth provide sufficient funding to the commissions to
enable them to do this; and
- greater efforts be made to continuously monitor the quality of representation
provided under legal aid funding.
Increased administration costs
3.108 It is clearly important that as much legal aid funding as possible
reaches the client, and as little as possible is spent on administration.
At a time when funding stringency has made this more important than ever,
the need to account separately for Commonwealth and state/territory matters
clearly has the potential to impose additional administrative burdens
and costs on the legal aid commissions. Mr Norman Reaburn, Deputy Secretary
of the Attorney-General's Department, was asked by the Committee in August
1997 to what extent this would occur. He responded:
I guess that our expectation is that every time there is a matter it
might be that whoever is handling that matter has to tick one extra box
in the information field that they fill in. Gee, that might take some
of them a second every time they deal with a matter. We have not done
a calculation of what so many matters at about a second each might cost.
[136]
3.109 Mr Reaburn added that from time to time each commission would in
future have to produce three reports instead of just one, reporting on
how it is managing under its overall budget, its state budget and its
Commonwealth budget. He argued that any well equipped, properly run organisation
should be capable of doing those things without incurring virtually any
additional cost. He did however say that there might be some incidental
costs initially as information systems were adjusted to meet the new requirements.
[137]
3.110 The Committee was told by the NSW Legal Aid Commission that the
extra costs were quite significant, and the issue had been particularly
burdensome in relation to matters commenced before 1 July 1997, as
it has meant revisiting files that were not originally set up with the
distinction in mind. [138] Victoria Legal
Aid advised the Committee in 1997 that it had not undertaken a detailed
analysis but it anticipated that the extra costs would exceed $50,000
a year. [139] In February 1998 it advised
that there were extra costs, but it did `not see this issue as being a
great cost issue'. [140] The Legal Aid Commission
of Western Australia advised the Committee that is was now subject to
increased state reporting requirements and added:
The Commonwealth reporting requirements, though not yet as extensive,
have increased and the division of matters into Commonwealth and State
budgets, with separate financial statements, adds to the administrative
costs. [141]
3.111 The Committee is concerned that the Commonwealth appears to have
ignored the impact of the increased costs, particularly the transitional
costs, in deciding to impose the new legal aid agreements.
3.112 In the initial six-month agreement with Western Australia, an amount
of $1 million was allocated to `administration and running costs' out
of the $4.125 million Commonwealth funding provided. The follow-on six-month
agreement, which operates from 1 January 1998, also provides for total
funding of $4.125 million but it makes no separate allocation for administration.
Footnotes
[1] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, conclusion at the end of Chapter 2 and para. 3.24.
[2] Transcript of Evidence, Law Council
of Australia, p. 1308.
[3] Submission No. 127, Attorney-General's
Department, Attachment A, p. 4.
[4] Submission No. 126A, Law Council
of Australia, paras. 1.4 to 1.6.
[5] Submission No. 183A, Law Society
of WA, p. 1.
[6] Transcript of Evidence, Law Society
of WA, p. 1496.
[7] Law Society of NSW, Media Release, 24 April
1998, `People pay price of chronic underfunding of legal system'.
[8] Submission No. 44C, Legal Services
Commission of SA, p. 2.
[9] Quoted in P Innes, `Does legal aid have
a future in Victoria?', Law Institute Journal, vol. 72(3), March
1998, p. 10. See similarly, `Funds doubts on legal aid', Herald Sun,
5 March 1998, p. 9; `Crisis call on state's legal aid', The Age,
5 March 1998, p. 8.
[10] Transcript of Evidence, Legal Aid
Queensland, p. 1752.
[11] Transcript of Evidence, Legal Aid
Queensland, p. 1760.
[12] Transcript of Evidence, Legal Aid
Queensland, p. 1761.
[13] Transcript of Evidence, Queensland
Law Society, p. 1784. See also Transcript of Evidence, Bar Association
of Queensland, p. 1792.
[14] Transcript of Evidence, Queensland
Law Society, p. 1778.
[15] Submission No. 157, Victorian Bar
Council, p. 14. The Council's February 1998 submission reiterated this
view (Submission No. 157A, pp. 1-6).
[16] See for example `Judges warn against aid
cuts', Australian, 4 May 1998, p. 4; `Judges warn of pressure from
aid cuts', The Age, 19 May 1998, p. 7; `Judges condemn cuts to
legal aid', The Age, 4 June 1998, p. 3.
[17] Transcript of Evidence, Springvale
Community Legal Service, p. 1676.
[18] `Legal aid in Federal cases dries up',
Sydney Morning Herald, 29 January 1998, p. 3.
[19] Transcript of Evidence, Family
Court of Australia, p. 1632.
[20] Transcript of Evidence, Attorney-General's
Department, p. 1821. See also Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 26 February
1998, Attorney-General's Department, p. 35, where the Department
at that stage said it believed it would be possible to resolve the matter
without having recourse to next year's funding.
[21] `Legal aid juggles tighter budgets', The
Age, 23 April 1998, p. 8.
[22] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 2 June
1998, Attorney-General's Department, pp. 83-4.
[23] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, paras. 1.6, 1.7, 1.8 and 2.84.
[24] Compare Australian Law Reform Commission,
Review of the adversarial system of litigation: Rethinking the federal
civil litigation system (ALRC Issues Paper 20) April 1997, para. 8.2:
`The Federal Court does not collect statistics on the number of litigants
in person who appear before it and the extent of any problems or increase
in numbers, if any, is not known'.
[25] See Transcript of Evidence, WA
Legal Aid Commission, pp. 1521-2 referring to numbers of unrepresented
litigants in the WA Court of Appeal: `Those sorts of meaningful indicators
need to be packaged around the actual business needs of each Legal Aid
Commission'.
[26] Transcript of Evidence, Family
Court of Australia, p. 1640.
[27] Submission No. 108B, Australian
Law Reform Commission, p. 4.
[28] See for example, Transcript of Evidence,
p. 1654 where Mr Richard Coates, the Chairman of National Legal Aid and
Director of the Northern Territory Legal Aid Commission, told the Committee:
There is a problem for us in the Family Court with the unrepresented,
what we would call, vexatious litigants. They tend to often be disgruntled
fathers, perhaps, who have had some legal aid, lost it and lost the residence
order and they keep on bringing back applications.
[29] Transcript of Evidence, Family
Court of Australia, pp. 1637-8, 1642.
[30] See for example, Transcript of Evidence,
Law Society of SA, p. 1565; Legal Services Commission of SA, p. 1589;
Family Law Practitioners Association, p. 1788; Bar Association of Queensland,
p. 1790; Submission No. 178, Federation of Community Legal Centres
(Vic), p. 9.
[31] See for example, Transcript of Evidence,
Bar Association of Queensland, p. 1790 citing figures for the Queensland
Court of Appeal which showed that from 1995 to 1996 there was an increase
from 3 to 15 in the number of civil litigants appearing unrepresented,
and from 76 to 101 in criminal matters.
[32] Submission No. 127G, Attorney-General's
Department, p. 2.
[33] Transcript of Evidence, Family
Court of Australia, pp. 1632-3.
[34] Hon Chief Justice David Malcolm AC, Address
at the Closing of the 1997 Legal Year of the Supreme Court of Western
Australia, p. 14. See similarly Transcript of Evidence, Law
Society of WA, p. 1493.
[35] Letter from Justice Michael Holden to
the Committee, 24 March 1998, p. 1.
[36] Transcript of Evidence, Law Society
of WA, p. 1502.
[37] Submission No. 32, Chief Justice
the Hon J Miles, p. 2.
[38] Submission No. 157C, Victorian
Bar Council, Schedule A, pp. 3-4.
[39] Transcript of Evidence, Administrative
Appeals Tribunal, pp. 1383-4.
[40] Transcript of Evidence, Administrative
Appeals Tribunal, p. 1386.
[41] See for example, Transcript of Evidence,
Law Council of Australia, p. 1317; Victorian Bar Council, p. 1478;
Law Society of SA, p. 1565; Legal Services Commission of SA, p. 1592;
Bar Association of Queensland, p. 1792; Submission No. 97, Family
Court of Australia, pp. 6-9. See also Australian Law Reform Commission,
Review of the adversarial system of litigation: Rethinking the federal
civil litigation system (ALRC Issues Paper 20) April 1997, Chapter
8; and Review of the adversarial system of litigation: Rethinking family
law proceedings (ALRC Issues Paper 22) November 1997, Chapter 11.
[42] Transcript of Evidence, NSW Director
of Public Prosecutions, p. 1347. See similarly Submission No. 66,
ACT Director of Public Prosecutions, p. 2; Submission No. 125,
Commonwealth Director of Public Prosecutions, p. 4.
[43] See for example Submission No. 97,
Family Court of Australia, pp. 6-7.
[44] Transcript of Evidence, Legal Services
Commission of SA, p. 1600.
[45] Letter from Chief Justice Michael Holden
of the Family Court of WA to the Committee, 24 March 1998, p. 2. See also
Submission No. 35F, Victoria Legal Aid, p. 15 where the view is
put that having counsel with no caps on their legal aid funding can in
some cases result in unnecessarily protracted hearings. This submission
was received after the Committee had substantially completed drafting
its report, and it has not been possible for the Committee's report fully
to address all the issues raised in it.
[46] Transcript of Evidence, Law Society
of SA, p. 1581. See also Transcript of Evidence, Victorian Bar
Council, p. 1478: `Cases frequently go wrong because the judge is not
able to do justice to the unrepresented litigant'.
[47] Submission No. 101B, Springvale
Legal Service, p. 3.
[48] Submission No. 101B, Springvale
Legal Service, p. 2.
[49] Transcript of Evidence, Law Society
of SA, p. 1567.
[50] Submission No. 100, Department
of Immigration and Multicultural Affairs, pp. 6-7. See also Submission
No. 149, Victorian Government, p. 13: unrepresented litigants in Family
Court likely to lead to increased burden on the Victorian Department of
Human Services.
[51] Submission No. 125, Commonwealth
Director of Public Prosecutions, p. 4. See also Submission No. 155,
NSW Director of Public Prosecutions, p. 3 (difficulties can arise in communicating
with an unrepresented accused).
[52] Transcript of Evidence, Legal Services
Commission of SA, p. 1599.
[53] Transcript of Evidence, Victorian
Bar Council, p. 1480.
[54] See for example, Submission No. 94A,
Women Lawyers' Association, p. 6.
[55] See for example, Submission No. 157C,
Victorian Bar Council, Schedule A, pp. 8-9, which describes one January
1997 committal in which legal aid was refused and which took 38 days:
the Magistrate hearing the matter found that any cost savings from refusing
legal aid were illusory, bearing in mind the court time and resources
for a committal which was extended four-fold because the accused was unrepresented.
As a second example, see Submission No. 97, Family Court of Australia,
pp. 7-8: behaviour of an unrepresented father increased the length of
the case by a day and a half and increased the costs of both the mother
and the child's representative.
[56] Submission No.127G, Attorney-General's
Department, p. 2.
[57] Compare Australian Law Reform Commission,
Review of the adversarial system of litigation: Rethinking the federal
civil litigation system (ALRC Issues Paper 20) April 1997, para. 8.2:
`Policy makers need to consider whether there may be some cost benefit
in providing public funding to reduce the number of litigants in person
in higher courts in view of the cost burdens their presence may impose
on courts'.
[58] Submission No. 84, Legal Aid Commission
of NSW, section 5.2. See also Submission No. 88, National Legal
Aid, pp. 55-7.
[59] Transcript of Evidence, Community
and Public Sector Union, p. 473.
[60] For example, at least until the advent
of agency-level bargaining, the salaries paid by the ACT Legal Aid Office
seem to have broadly matched those paid in the Commonwealth public service.
In 1992, salaries at the Legal Aid Commission of Western Australia were
altered to achieve parity with those of the Crown Solicitor's Office:
Legal Aid Commission of WA, `Review Committee Comments On Efficiencies',
December 1997, para. 5.3.1.
[61] For example, Submission No. 125,
Commonwealth Director of Public Prosecutions, p. 3 stated that the DPP's
in-house lawyers are paid standard award salaries.
[62] For example Submission No. 125A,
Commonwealth Director of Public Prosecutions, pp. 1-2 notes that the salaries
paid to senior in-house counsel in his Sydney office are `considerably
less' than the salaries paid to public defenders. But only a detailed
study could compare their respective duties and workloads.
[63] Compare the view in Submission No.
102, Bar Association of Queensland, p. 21: `Difficulties in making
any worthwhile comparison in such an exercise might make it futile'.
[64] Submission No. 84, Legal Aid Commission
of NSW, section 5.2; Submission No. 88, National Legal Aid, pp.
55-6.
[65] Submission No. 84, Legal Aid Commission
of NSW, section 5.2.
[66] See for example, Submission No. 61,
NT Legal Aid Commission, p. 5; Submission No. 84, Legal Aid Commission
of NSW, section 5.1; Submission No. 88, National Legal Aid, p.
54-55; Submission No. 94, Women Lawyers' Association of NSW, p.
19; Submission No. 3, Bar Association of Queensland, pp. 18-19;
Submission No. 119, Family Law Council, p. 11; Submission No.
126, Law Council of Australia, pp. 30-3; Submission No. 150,
Legal Aid Commission of WA, p. 16.
[67] See for example Submission No. 44,
Legal Services Commission of SA, p. 20; Submission No. 126, Law
Council of Australia, p. 31; Transcript of Evidence, Law Council
of Australia, p. 155; National Legal Aid, pp. 214 and 1650.
[68] For discussion of the rationale see for
example, Senate Estimates Committee F, Transcript of Evidence,
24 February 1994, Attorney-General's Department, pp. 42-4. At p. 43 the
Committee was told by the then Secretary of the Department, Mr Alan Rose:the
fundamental point that I think the commercial-in-confidence and privacy
issues are directed to is that with counsel A, who is of a particular
standing, we may, in particular circumstances in negotiation with that
counsel, arrive at a particular fee, an hourly rate, which may be a very
substantial discount, and most often times is, from that counsel's normal
hourly rate. It is not in the Commonwealth's interest, that is, it is
not in the people of Australia's interest, and it is not in that counsel's
interest, to know that with respect to particular matters we have arrived
at discounted rates.
[69] Senate Estimates Committee F, Transcript
of Evidence, 27 May 1994, Attorney-General's Department, p. 127.
[70] Submission No. 102, Bar Association
of Queensland, p. 18. See also, Submission No. 126, Law Council
of Australia, p. 31; Submission No. 150, Legal Aid Commission of
WA, p. 16; Transcript of Evidence, National Legal Aid, p. 214;
Law Society of SA, p. 727; Mr M Sides QC, pp. 978-9; NSW Bar Association,
p. 1037.
[71] Submission No. 119, Family Law
Council, p. 11.
[72] Transcript of Evidence, NT Criminal
Lawyers Association, p. 60. See also National Commission of Audit, Report
to the Commonwealth Government, June 1996, p. 28: `The current costs
of prosecutions are significantly greater, particularly for solicitors
and barristers, than defence costs through legal aid. This disparity between
the two public actions has been a significant area of inequity and criticism.'
[73] Transcript of Evidence, National
Legal Aid, p. 1650.
[74] For example, the Commonwealth Director
of Public Prosecutions told the Committee that his office does not determine
the amount paid to a barrister by reference to the court in which a matter
will be heard: Submission No. 125A, p. 2. On the other hand, some
legal aid fees have been determined by reference to court-specific scales.
[75] Submission No. 127, Attorney-General's
Department, p. 15 and Attachment D.
[76] Transcript of Evidence, Attorney-General's
Department, pp. 1287-8. Scales have been abolished in New South Wales.
See also the January 1997 recommendations of the Council of Australian
Governments' Legal Profession Reform Working Party, Principle 5, which
states (in part): `COAG supports moves to market-based measures for establishing
the price of legal services. Fee scales, where adopted, should not be
used to set prices in the market.'
[77] Transcript of Evidence, Law Society
of WA, p. 1496.
[78] Submission No. 92, ACT Legal Aid
Office, p. 6. See also Submission No. 123, Law Society of the ACT,
p. 2 (`in some areas the rate paid by the commission amounts to less than
50% to 70% of what one could expect on a private basis'); Submission
No. 141, NT Criminal Lawyers Association, pp. 1-2 (proportion `has
dropped away dramatically' from 80 per cent of scale); Transcript of
Evidence, Law Society of Tasmania, p. 609 (remuneration is `something
approaching 50 per cent of normal fees).
[79] Transcript of Evidence, National
Legal Aid, p. 1265.
[80] Transcript of Evidence, Legal Aid
Commission of WA, p. 1239.
[81] Submission No. 150A, Legal Aid
Commission of WA, Attachment 1 (`Account No. 3').
[82] Submission No. 150A, Legal Aid
Commission of WA, Attachment 1 (`Account No. 5'). The higher amount was
set out as `$4,650 $8,500' with a note explaining that the `fee depends
on level of complexity'. The next highest fee was $5,327.
[83] See for example, Submission No. 141,
NT Criminal Lawyers Association, p. 2; Transcript of Evidence,
Victorian Council for Civil Liberties, p. 464.
[84] See Transcript of Evidence, NSW
Legal Aid Commission, p. 1721 on barristers continuing to appear after
funding has run out.
[85] Transcript of Evidence, SA Bar
Association, p. 747.
[86] Price Waterhouse Urwick, Review of
Barristers' Fee Scales, (Report requested by the Victorian Bar Council)
August 1997, p. 20.
[87] ibid., p. 13.
[88] ibid., Appendices H, I and J.
[89] Memorandum from Robert Cornall, Victoria
Legal Aid, to the Community Consultative Committee, `Review of Barristers'
Fee Scales by Price Waterhouse Urwick', 13 October 1997.
[90] The Committee did not examine in this
context the recent changes which give greater freedom to Commonwealth
departments to out-source some of their legal work to the private profession
directly without engaging the AGS.
[91] Submission No. 127A, Attorney-General's
Department, Attachment C, p. 2; Submission No. 127, Attorney-General's
Department, p. 18, citing as factors enabling it to obtain lower rates
the surety of payment, quality of instructions, nature of the work and
the possibility of future work. See also Transcript of Evidence,
Attorney-General's Department, p. 799.
[92] Submission No. 127A, Attorney-General's
Department, Attachment C, p. 2.
[93] Submission No. 127A, Attorney-General's
Department, Attachment C, p. 1.
[94] Transcript of Evidence, Law Society
of SA, p. 1575 (defence in the three War Crimes Act trials; parties to
the Mathews inquiry into the Hindmarsh Island Bridge matter); Family Law
Practitioners Association, p. 1779 (work pursuant to the UN Convention
on the Recovery Abroad of Maintenance).
[95] Transcript of Evidence, Attorney-General's
Department, pp. 1285, 1287, 1288.
[96] Submission No. 127D, Attorney-General's
Department, Answers to Questions Taken on Notice, pp. 1-2.
[97] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 27 February
1997, Attorney-General's Department, p. 10.
[98] Submission No. 125, Commonwealth
Director of Public Prosecutions, p. 6.
[99] Submission No. 125B, Commonwealth
Director of Public Prosecutions, pp. 1-2. See similarly Submission
No. 125C, p. 2.
[100] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, pp. 166-7.
[101] Submission No. 125, Commonwealth
Director of Public Prosecutions, p. 3. See similarly Submission No.125C,
Commonwealth Director of Public Prosecutions, p. 2.
[102] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, p. 167. See also Submission No. 3,
NSW Council for Civil Liberties, p. 3, where it is argued that lawyers
in private practice who are prepared to do legal aid work should do so
on the basis that there is an element of pro bono involvement with that
work, and that legal aid rates should not be benchmarked against the rates
paid by the Commonwealth to major CBD law firms.
[103] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, p. 170.
[104] Submission No. 125C, Commonwealth
Director of Public Prosecutions, p. 2. See also Submission No. 125,
p. 3 (January 1997): In relation to fees paid to members of the private
bar the DPP's guidelines provide that Senior Counsel can be allowed a
maximum daily rate of $2,800 per day with the possibility of a maximum
of $3,000 per day with Head Office approval. A maximum daily rate of $1,000
per day is allowed for Junior Counsel with the possibility $1,200 per
day for Senior Juniors and $1,500 per day for Senior Juniors performing
the work of Senior Counsel. Some variances to these maximum rates do occur.
These rates are maximum rates, the amount paid to individual barristers
is determined to a large extent by the barrister's position within the
market for legal services in the barrister's jurisdiction.
[105] See for example, Submission No. 43,
Legal Aid Commission of Tasmania, p. 6; Submission No. 88, National
Legal Aid, p. 54; Transcript of Evidence, NT Criminal Lawyers Association,
p. 55-6; Legal Aid Commission of Tasmania. pp. 597-8; Law Society
of Tasmania, p. 612.
[106] Transcript of Evidence, Law Council
of Australia, p. 153.
[107] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, pp. 167-9; Submissions Nos. 125A and
125B, both from the Commonwealth Director of Public Prosecutions.
[108] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, p. 167-8.
[109] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, p. 165-6.
[110] Transcript of Evidence, Attorney-General's
Department, p. 797.
[111] Transcript of Evidence, Attorney-General's
Department, p. 797.
[112] Submission No. 102, Bar Association
of Queensland, p. 20; Submission No. 126, Law Council of Australia,
pp. 30-3.
[113] Transcript of Evidence, Commonwealth
Director of Public Prosecutions, p. 169.
[114] Transcript of Evidence, Victorian
Bar Council, p. 1477.
[115] See Queensland, Criminal Justice Commission,
Report on the Sufficiency of Funding of the Legal Aid Commission of
Queensland and the Office of the Director of Public Prosecutions, Queensland,
April 1995, p. 63: `the fees paid by private clients should not be used
as a benchmark for assessing the adequacy of LAC fees'.
[116] Submission No. 84, Legal Aid
Commission of NSW, section 5.5. See similarly Transcript of Evidence,
Legal Aid Commission of NSW, pp. 527-8.
[117] See for example, Transcript of Evidence,
National Legal Aid, pp. 211-12: `This is not a case where you have to
be second best to work at legal aid. You make a strong commitment to go
there.'
[118] Transcript of Evidence, Legal
Services Commission of SA, p. 1589.
[119] See for example, Transcript of Evidence,
National Legal Aid, p. 208; Legal Aid Queensland, p. 259; Law Society
of WA, p. 1492; Legal Aid Commission of WA, p. 1525; Legal Services
Commission of SA, p. 1589.
[120] Transcript of Evidence, NSW Bar
Association, p. 1037; Bar Association of Queensland, p. 1794.
[121] Transcript of Evidence, Law Society
of WA, p. 1496.
[122] Transcript of Evidence, Legal
Aid Queensland, p. 1752.
[123] Transcript of Evidence, Family
Law Practitioners Association, p. 1782. However, some noted that it was
possible to run a successful practice relying heavily on legal aid by
focusing on a niche market or where there was a volume of work available,
efficient systems were in place in the firm, and the operation was well
organised: see Transcript of Evidence, Queensland Law Society,
pp. 355-6; Mr S Cousins, p. 361; Family Law Practitioners Association,
p. 1782; National Association of Community Legal Centres, p. 1458.
[124] Transcript of Evidence, Queensland
Law Society, p. 1788.
[125] Transcript of Evidence, Victorian
Bar Council, p. 1477.
[126] Transcript of Evidence, Victoria
Legal Aid, p. 1409.
[127] Transcript of Evidence, Victorian
Bar Council, pp. 1487-8. See also Submission No. 157C, Victorian
Bar Council, Schedule A, p. 1, which describes a survey of 28 members
of the Criminal Bar Association who all were experienced senior or junior
counsel and who in 1996 were known to devote a significant portion of
their practice to legal aid work. Twenty said they had significantly reduced
the amount of legal aid work they were prepared to undertake, and eight
were refusing to undertake any legal aid work.
[128] Transcript of Evidence, South
Australian Bar Association, p. 747. See also Transcript of Evidence,
Queensland Law Society, p. 355 on the difficulty of getting adequate instructions
from prisoners because the legal aid fee for a prison visit for this purpose
does not cover the costs.
[129] Transcript of Evidence, Law Society
of SA, p. 728.
[130] Transcript of Evidence, Law Society
of WA, p. 1100.
[131] Submission No. 157C, Victorian
Bar Council, Schedule B, p. 5.
[132] Submission No. 157C, Victorian
Bar Council, Schedule B, pp. 5-6. However, in a submission received too
late to by considered fully by the Committee for this report, Victoria
Legal Aid claimed that if the couple has sufficient assets and financial
arrangements to warrant engagement of an accountant, it is unlikely that
they would qualify for legal aid. In addition, the Family Court employs
counsellors to provide reports, and VLA was experiencing a great deal
of cost-shifting from the Court to it by practitioners seeking funding
for reports from private psychologists. Moreover, in the past when legal
aid was given for such reports there was evidence to suggest that cases
were not being settled earlier (Submission No. 35F, p. 17).
[133] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, para. 2.86.
[134] Transcript of Evidence, National
Legal Aid, pp. 1267, 1651; Law Society of SA, p. 1580; Springvale Community
Legal Service, pp. 1683-4; Family Law Practitioners Association, p. 1780.
[135] Submission No. 88, National Legal
Aid, p. 57.
[136] Transcript of Evidence, Attorney-General's
Department, p. 1280.
[137] Transcript of Evidence, Attorney-General's
Department, p. 1280.
[138] Transcript of Evidence, Legal
Aid Commission of NSW, pp. 1716, 1715.
[139] Submission No. 35A, Victoria
Legal Aid, p. 1.
[140] Transcript of Evidence, Victoria
Legal Aid, p. 1405.
[141] Submission No. 150C, Legal Aid
Commission of WA, p. 2. See also Transcript of Evidence, NT Legal
Aid Commission, p. 1656; Legal Aid Queensland, p. 1763.