CHAPTER 4
Priorities and guidelines general Issues
Introduction
4.1 In the previous Chapter, the Committee showed that the legal aid
system is seriously under-funded. In this Chapter it looks at the restrictions
imposed on the grant of legal aid by the `Priorities' and the `Guidelines'
that form part of the new legal aid agreements. These restrictions are,
in its view, to an extent no more than arbitrary devices to reduce the
grants of assistance so as to match the reduced funding provided.
4.2 The Committee recognises of course that there has always been a variety
of restrictions on access to legal aid, including means tests, merits
tests and limits on the types of matters which are eligible for assistance.
However, the Committee considers that the recent tightening of restrictions
related to the new legal aid agreements has crippled the ability of the
system to deliver adequate services to needy Australians.
4.3 For convenience, the Committee has adopted the following approach.
In this Chapter it briefly describes the contents of the `Priorities'
and the `Guidelines' documents. It also discusses a number of general
criticisms made of them. In the following three Chapters, the Committee
deals with specific aspects related to family law, criminal law and civil
law matters respectively.
`Commonwealth Priorities'
4.4 Schedule 2 of the agreements with the states and territories is headed
`Commonwealth Priorities'. As noted in Chapter 1, it has been amended
since the 1 July 1997 version came into operation. The priority Commonwealth
areas are listed within three broad categories: family law, criminal law
and civil law.
4.5 The states and territories are required by the agreements to manage
and allocate the Commonwealth funding to ensure that the defined priorities
are met. They are also required to ensure that services are provided in
a fair and just manner, and resources are used in the most efficient and
cost effective manner. Under the agreements, a legal aid commission may
only spend funds outside the areas the Commonwealth has identified as
priorities if the Commonwealth gives prior approval and the commission
has Commonwealth funds available.
4.6 The document states that the priority areas are not hierarchical.
Subject to any individual guideline which requires assistance to be provided,
[1] it is for the legal aid commission concerned
to determine the overall mix of assistance to be provided having regard
to funds provided and applications for legal aid it receives.
4.7 Some have argued that this lack of hierarchy is unacceptable, as
it forces one area of demand to compete against others. A particular concern
has been that criminal law matters, backed by the possibility of Dietrich
applications, consume too much of the legal aid funding, to the detriment
of family law matters. It is said that the amounts consumed by criminal
and family matters leave very little for civil law matters. [2]
4.8 The alternatives to the present position are not attractive. If the
priorities are ranked, then the lower ranked ones will almost certainly
receive no funding at all, given the present shortfall in overall funding
for legal aid. Another option is to allocate separate funds for those
types of matters which might otherwise miss out on an adequate share of
the funding from the general pool. The Australian Law Reform Commission
and the Human Rights and Equal Opportunity Commission recommended in a
joint report in 1997 that there should be funding for separate representatives
for children in family law proceedings which was separate from the general
legal aid funding. [3]
4.9 The agreements with Queensland, Tasmania and Victoria provide detail
on how the Commonwealth's block grant is expected to be allocated between
family, criminal and civil matters. Family law matters are to account
for the greatest number of grants of aid in each case, ranging from 91.7
per cent in Tasmania down to 79.3 per cent in Victoria. The legal aid
commission in each case is allowed to vary the mixture.
4.10 However, if fixed amounts of money are allocated to specific matters
excessive rigidity may result. As Mr Alan Rose, President of the Australian
Law Reform Commission, put it:
I think it is a matter of how you balance two evils. If you do break
it [ie. funding] up into two smaller penny packets, you are likely to
have great rigidity as a result. There will be more deserving cases in
a category than can be funded and there will be money left over in another.
I do not think we would look to so circumscribe the exercise of discretion
in that way. What we would find useful now is a much better, nationally
compatible set of statistics which would show you just what the effect
of following the current guidelines jurisdiction by jurisdiction is and
where inequities of some magnitude may be developing. We focused on children's
representation because that seemed to us to be well established. I am
sure you could make an equal case in some other areas if you had that
run of statistical information. It would be more reporting than I think
legislating to break the total funding up into, in effect, a set of accounts.
[4]
4.11 The Committee agrees that better data is needed in order to determine
if the lack of hierarchy in the present priorities constitutes a problem.
Elsewhere in this report (see para. 4.27 below) the Committee recommends
that statistics be kept on the number of applications refused due to a
lack of funds. This data, together with more up-to-date production of
the basic data on applications made and refused that is now in the Statistical
Yearbooks should provide a better basis on which to assess whether some
types of applications are consuming a disproportionate share of the legal
aid funding to the detriment of other, equally deserving, areas.
Recommendation 6
The Committee recommends that the Government monitor the expenditure
on the various categories and sub-categories of legal aid matters it funds
under its general legal aid funding to determine if disproportionate expenditure
in one priority area is having the effect of depriving another of appropriate
funding.
4.12 The Government has identified the types of matters that it regards
as priorities for its legal aid funding. In the Committee's view it is
essential that the Government makes sufficient funding available to meet
the legal aid needs for each and every one of the Government's priorities.
Special legal assistance schemes
4.13 The Committee is aware that the Commonwealth, through the Attorney-General's
Department, administers some 19 statutory financial assistance schemes
and 6 non-statutory schemes. There are statutory schemes for example
under the Administrative Appeals Tribunal Act, the Privacy Act, the Sex
Discrimination Act, the Disability Discrimination Act, the Race Discrimination
Act and the Native Title Act. The non-statutory schemes include a Public
Interest and Test Cases Scheme which is briefly described in paragraph
4.45 below. The schemes are listed and briefly described in Appendix 7
to this report. In 1996-97, $4.853 million was spent in funding the schemes.
[5] The submissions and evidence to the Committee
indicated little community awareness that these schemes existed. Although
the Committee was advised that brochures setting out details of the discrimination
Acts schemes are distributed to relevant agencies, [6]
it appears to the Committee that the Commonwealth does little to publicise
or promote them.
4.14 The schemes were created over the years to provide legal assistance
in cases where aid is not generally available from legal aid commissions
and where the circumstances constitute special cases of Commonwealth interest.
It is not clear to the Committee to what extent all of these schemes are
still justified, now that the Commonwealth no longer funds state and territory
matters and has imposed a general set of priorities for the grant of legal
aid in Commonwealth matters. In particular it is not clear whether all
the matters in these special schemes merit receiving what appears to be
a special priority or treatment, compared with the items listed in the
`Commonwealth Priorities' under the legal aid agreements.
4.15 The Acts creating the statutory schemes do not contain very detailed
criteria for the grant of assistance. Many refer in general terms to `hardship'
to the applicant. For example, the scheme under the Administrative Appeals
Tribunal Act provides for parties in proceedings before the Tribunal or
before a court in a matter arising under the Act to apply for assistance.
The Act then provides that `the Attorney-General may, if he is satisfied
that it would involve hardship to that person to refuse the application
and that, in all the circumstances, it is reasonable that the application
should be granted', authorise the provision of legal or financial assistance.
[7] However, not all the schemes contain a hardship
test. [8]
4.16 The grants of legal assistance under both the statutory and non-statutory
schemes are subject to guidelines which may include some sort of means
and merits tests. Given the variations in these, it is difficult to generalise
on the extent to which the tests applied differ from the criteria for
granting legal aid under the 1 July 1997 legal aid agreements. However,
the Attorney-General's Department advised the Committee that there are
no limits on the level of assistance which may be provided in any given
case, other than the availability of funds for the schemes at the time.
[9] In addition, under the means tests there
is no specific income limit: the test is whether the applicant can afford
to meet the estimated cost of the proceedings. [10]
The Committee notes that a far less stringent means test applies to the
provision of legal assistance for pastoralists in relation to Native Title
Act cases than to legal aid provided under the agreements. [11]
`Commonwealth Guidelines'
Content of the guidelines
4.17 Schedule 3 of the legal aid agreements is headed `Commonwealth Guidelines:
Legal Assistance in Respect of Matters Arising Under Commonwealth Laws'.
The guidelines (in the version to apply after 1 July 1998) provide as
threshold criteria:
Legal assistance may be granted in respect of applications which meet:
- the means test; and
- the guidelines (where there are guidelines in relation to the matter);
and
- the merits test;
and which arise under Commonwealth law and which are specified as priority
matters.
In the ordinary course of events, the tests will be applied in the above
order.
4.18 The document then sets out some general principles that apply to
the means and merits tests. This is followed by some eight pages of guidelines
applicable to family law matters, three pages for criminal law matters,
and two for civil law matters.
4.19 As noted in Chapter 1, the legal aid agreements with the states
and territories are subject to change at the Commonwealth's initiative
and in consultation with the state or territory and/or its legal aid commission.
The Committee lacks comprehensive information on how many amendments there
have been which apply to one jurisdiction but not to all. It is aware
that there have been some. [12] Amendments
have been made, based on, among other things, comments and criticisms
made by the various legal aid commissions. [13]
Use of guidelines to justify refusals made for budgetary reasons
4.20 The Committee was told that the guidelines were something of a sham
in the sense that legal aid was not necessarily granted to all applications
that complied with them. There was a perception that the interpretation
placed on them varied from day to day according to the budgetary position
of the particular commission and its need to reduce the grants of legal
aid to match the availability of funds.
4.21 For example, the Family Law Practitioners Association in Queensland
described to the Committee what happens from the users perspective. It
distinguished the published guidelines from the criteria actually applied,
which it described as the real guidelines: `With the real guidelines,
what truly happens is that when money is short, assignments officers are
told to restrict grants of aid and they do'. [14]
The Association said that as a result, the approval rate for aid applications
fluctuates considerably from month to month.
4.22 Similarly, in its December 1996 submission to the Committee, the
Legal Aid Commission of New South Wales referred to budgetary difficulties
it was then experiencing, including the expected impact of the Commonwealth
funding cuts due to take effect from 1 July 1997. It advised the Committee:
The budgetary limitations for LACNSW and hence for the [family law] program
mean that people who previously were able to satisfy the merit test are
now refused legal aid on the basis of merit, in circumstances in which
there is no lessening of the person's prospect of success. [15]
4.23 Legal Aid Queensland advised the Committee:
The way we operate the system is that we have a commitment budget each
month, and we operate within that budget. We apply the guidelines, but
we also apply financial management. [16]
4.24 The Committee notes that a varying acceptance rate presumably also
applies as between jurisdictions, notwithstanding that the Commonwealth
criteria are supposed to apply uniformly across the country. A person
may be denied legal aid in one jurisdiction while an identical application
in another is granted, simply because the one commission is running over
budget and the other is not.
4.25 The Committee sought information on how often applications were
refused simply due to lack of funds. The Legal Services Commission of
South Australia informed the Committee that the way in which it recorded
statistical data did not allow for the capture this information: `We have
talked at the commission about actually creating a new category meritorious
case on all grounds, but [refused for] lack of funds. It has not been
done but it has certainly been discussed.' [17]
The Commission explained that these meritorious cases are presently recorded
as failing to meet the guidelines, even though this is correct only in
the sense that the Commission has as a matter of policy decided not to
spend its limited funds on that type of application. [18]
4.26 The Committee notes that the revised guidelines to come into force
on 1 July 1998 contain a paragraph which was not in the 1 July 1997 version.
This paragraph explicitly recognises that fully complying applications
may be refused legal aid solely for budgetary reasons:
If a matter is within the guidelines and meets all aspects of the merits
test and the means test, where they are applicable, it is for the Commission
to determine in accordance with the guidelines the nature and extent of
the legal assistance to be granted, if any. Subject to any individual
guideline requiring legal assistance to be provided, the Commission is
not required to grant legal assistance simply because all tests and guidelines
are met. The Commission must have regard to available funds and competing
priorities.
4.27 The Committee considers that data on applications refused solely
due to lack of Commonwealth funds ought to be collected. It recognises
that month-to-month availability of funds has always affected the granting
of legal aid. However, at a time when the Government is imposing more
stringent limits on funding, it is essential to know how many applications
are being refused solely due to lack of funds.
Recommendation 7
The Committee recommends that the data currently collected on
the number of applications for legal aid that are refused be expanded
to show how many are for applications that meet all the criteria and are
refused solely for lack of Commonwealth funds.
4.28 The Committee recognises that data collected in this way will not
be perfect. The guidelines contain criteria that require an element of
subjective judgment in their application for example the likelihood that
litigation, if funded, will succeed. There will always be a possibility
that if funds run short at a legal aid commission the success test will,
perhaps unconsciously, be applied more stringently to reject an application,
rather than rejecting it on the ground that insufficient funds are available.
4.29 The Legal Services Commission of South Australia explained to the
Committee in its February 1998 submission the difficulty it faces in justifying
to the public the refusal of aid simply on the basis of funding. The Committee
believes this explanation encapsulates many of the views expressed in
submissions to its inquiry, and it is therefore worth setting out in full:
As funding has been drained away from the legal representation of average,
and now even of underprivileged South Australians, more and more people
approach the Commission seeking such explanations and asking how they
can get help. The fact is that the explanations are feeble and other sources
of help often do not exist.
It is not just that people are aggrieved when they cannot get what they
want. Most of them will see reason. What they cannot comprehend is that
the Commonwealth apparently holds, as a matter of policy, that Australians
ought to be able to represent themselves unaided in the courts. It regards
representation as a luxury that has to be rationed in hard times. From
a client viewpoint, this is incomprehensible. They find it hard to see
how the average, high-school educated wage-earner could manage to defend
a charge of which he was innocent, or successfully fight for contact with
his children. At the suggestion that the illiterate, the mentally ill,
the non-English speaker and the institutionalised should also be able
to do this, they are incredulous.
It is not as if there is any other rational explanation that can be offered
to them. The current funding restrictions go far beyond the justifiable
limits set in the past. Clients will accept that they should not get aid
if a case does not need to go to court, or if other funding sources exist.
They can be directed to the appropriate avenues of assistance. But if
their case does need to go to court they do not understand being
denied any form of legal assistance. Paradoxically, the present regime
is unlikely to save public money overall only to move the costs from one
arena to another.
If the rationale for the cuts were to prevent the well-off using public
funds, the proper way to address this is through a means test. We already
have a means test based on the poverty line. If you are a pensioner with
$3000 life savings, you won't get legal aid in the average Magistrates
Court matter. There is little room to reduce the test further, but if
that is the concern, that is what should be done.
If the rationale were to avoid funding those cases which do not need
to go to court, or can be solved in other ways, or for which other funding
sources exist, guidelines should be set that relate to the actual resources
required for this as historically has been done.
If the Commonwealth is concerned to avoid funding trivial, undeserving
or vexatious cases, this should be done through the merits test, which
sees that only cases with reasonable prospects of success are funded.
If the Commonwealth is worried about people getting aid to which they
are not entitled by giving false information or by fraud, the answer lies
in requiring more proof or in expanding (and funding) the investigative
powers of the Commission.
In any of the above cases, it would be possible to offer a rational explanation
to the disappointed applicant, which he or she could address on appeal
and if necessary pursue through the Ombudsman's office or their Member
of Parliament. Instead, we now have to tell people with valid cases and
no money that they will get no help, or that the help will be arbitrarily
stopped part-way through the case. In other words `there's no reason for
it it's just our policy'. Many Australians will not accept this. [19]
The means test
Content
4.30 In 1994, the legal aid commissions took steps to develop a national
means test. In December 1996, the Attorney-General's Department told the
Committee that the test had now been implemented across Australia. [20]
It takes into account an applicant's income and assets and a wide variety
other factors which affect the applicant's ability to afford the cost
of private legal services. The guidelines provide that unless specifically
varied by the Commonwealth, the means test to be applied shall be the
one used by the commission at the date of the application for legal assistance.
4.31 Under the guidelines, the means test does not apply to veterans
matters. Nor does it apply to services such as initial telephone advice
services and duty lawyer services provided by the commissions.
4.32 It is unnecessary to set out all the detailed aspects of the test
for the purposes of this report. It is sufficient to note that a study
of the means test criteria applied in 1995 by what is now Legal Aid Queensland
estimated that only 15 per cent of the population over the age of fifteen
were financially eligible to receive full legal aid. A further 27 per
cent were eligible to receive partial aid. [21]
The view that the test is too stringent is considered below.
Lack of uniformity and excessive stringency
4.33 The national means test allows the various jurisdictions to set
different monetary limits to items allowed under the test. This is to
cater for economic factors thought to be particular to individual jurisdictions.
[22] The test also allows different monetary
values to be fixed for different regions within a jurisdiction, such as
country and outback regions. [23]
4.34 The Attorney-General's Department informed the Committee in December
1996:
This means test provides a sound basis for equitably managing the allocation
of limited legal aid funds across jurisdictions. The Commonwealth is concerned
that variations in the application of the means test by LACs may not be
achieving equitable outcomes. [24]
4.35 The Committee notes that the data needed to determine if equitable
outcomes are in fact being achieved does not appear to be available. The
Committee observes that the guidelines in the new agreements do nothing
to address this variable element in the means test levels, if indeed it
is a problem.
4.36 The Committee does not oppose variation in the means test levels
if they are found to be necessary in order to achieve equitable outcomes
in the light of differing economic conditions in different states, territories
and regions of Australia. However, the Committee is strongly opposed to
such variation where it is based on inadequate provision of legal aid
funds by governments.
4.37 The Legal Aid Commission of New South Wales advised the Committee
that non-uniformity in means test levels `also results from LACs' severe
budgetary problems which prevents those states with more stringent means
tests from raising them in line with the LACs which currently have more
generous means tests'. [25] The Legal Services
Commission of South Australia stated: `the commission, we believe, operates
the tightest means test in Australia. The means test reflects the level
of funding that we have available to us, matched against demand.' [26]
4.38 Overwhelmingly, the criticism of the means test is that it is too
stringent. A major cause of this appears to be the failure of the means
test levels to increase to keep pace with inflation and increases in benchmarks
such as the Henderson poverty line. As indicated in the previous paragraph,
the impact of the failure has not been uniform in all jurisdictions. Nonetheless,
there is a widely held perception that the levels are too low in all jurisdictions.
This criticism pre-dates the introduction of the new legal aid arrangements,
but those arrangements have done nothing to alleviate the problem. For
example, the Reverend Harry Herbert of the Uniting Church's Community
Services Australia told the Committee in April 1997:
One of the serious concerns I have with legal aid to date is the very
low threshold of the means test. I do not know whether the committee has
had a look at the means test but you have really got to be a social security
recipient in Australia today to get legal aid, or very close to a social
security recipient, or be involved in a case which has very considerable
merit. I personally would like to see the threshold of the means test
lifted considerably. [27]
4.39 Mr Mike Cramsie, Managing Director of the Legal Aid Commission of
New South Wales, told the Committee in February 1997: `we have to appreciate
that anybody who can pass the commission's means test is obviously very
poor, and there are lots of people who do not pass the means test who
are also very, very poor'. [28]
4.40 Mr Robert Cornall of Victoria Legal Aid informed the Committee in
February 1998:
Last financial year, 57 per cent of our clients were on social security.
Another 30 per cent had no income. To my mind, that leaves a very large
number of Australians who would not, on our view, be sufficiently financial
to run litigation. They will not qualify for legal aid under the means
test and will be shut out of the legal system due to their inability to
bear the extensive costs of litigation. [29]
4.41 The Committee acknowledges the weight of the evidence suggesting
that the means test levels are too low. However, it lacks the data necessary
to make detailed recommendations about the appropriate levels of income
and assets that should be included in the means test.
Recommendation 8
The Committee recommends that:
- the Government ensure that the means test income and asset levels
are set at the same amounts for all parts of Australia, unless regional
variations can be shown to be justified by differing economic conditions;
- to achieve this, the Government must provide sufficient legal aid
funding to alleviate the position of those legal aid commissions that
impose more stringent means tests due to inadequate funding; and
- the Government should, in the light of the new funding arrangements,
institute a review of the appropriateness of the means test levels that
currently apply.
-
Use of resources
4.42 Another criticism was that means testing takes up too much time
and scarce resources. [30] Legal Aid Queensland
told the Committee in February 1997 that, within the framework of the
national means test, it had piloted a simplification which aimed at a
one-page application. [31] It had established
that if a person is eligible for social security benefits they are eligible
for legal aid under the means test. [32] In
February 1998 it advised the Committee that it was using receipt of social
security benefits as a criteria, thereby avoiding the need in those cases
to administer a separate, full-scale means test: `The cost of going through
a process of means testing which was less simple than that was exorbitant
without really any benefit to the administration of the process'. [33]
The merits test
4.43 The guidelines document provides that the merits test has three
facets:
- legal and factual merits – the `reasonable prospects of success'
test, under which the case for which funding is sought must be more
likely to succeed than not. The guidelines impose a higher test in a
few specified circumstances: for example, for criminal appeals against
sentence or conviction, `a strong likelihood' of success is required.
- the `ordinarily prudent self-funding litigant' test, under which assistance
will be provided only where it is considered that such a litigant would
risk his or her funds in the proceedings in question.
- the `appropriateness of spending limited public legal aid funds' test,
under which assistance is only to be granted where the costs of doing
so are warranted by the likely benefit to the applicant or, in some
circumstances, the community.
-
The `reasonable prospects of success' test
4.44 Concerns were put to the Committee that the `reasonable prospect
of success' test would in practice deny legal aid to cases brought as
test cases or which raised novel defences. For example, the Women Lawyers'
Association in New South Wales pointed out the difficulty of assessing
the prospects of success in test cases. It instanced the possibility of
running a case designed to test the limits of the `battered woman syndrome'
as a defence or as mitigating circumstances in a murder case. [34]
4.45 The Committee notes that separately from the legal aid agreements,
the Commonwealth funds and the Attorney-General's Department administers
a Public Interest and Test Cases Scheme. It applies to assist parties
to proceedings in court where, in the opinion of the Attorney-General,
a substantial point of unresolved Commonwealth statute law is involved
or a test case decision is likely to affect a large number of socially
or economically disadvantaged persons. Relevant factors in determining
whether to grant assistance include: hardship; prospects of success; the
nature and extent of the benefit or detriment that may accrue to the applicant;
the benefit to the public or any section of the public; and the availability
of funds. [35]
4.46 The current guidelines for the Scheme came into operation in August
1996, and thus pre-date the new legal aid agreements. They provide that
assistance under the Scheme is not available to applicants who have access
to other funds or legal aid in order to pursue their claim. An applicant
who may be eligible for legal aid must first apply to the relevant legal
aid commission and be refused assistance by that commission. [36]
However, the legal aid agreements with all jurisdictions except Queensland
contain a broadly similar provision which appears to supersede the Scheme
guideline. The provision in the agreement with the Northern Territory,
for example, provides:
As the Commonwealth maintains a test case fund, the Commission will not
provide grants of legal assistance in relation to test cases arising under
Commonwealth law without first referring any request for such assistance
to the Commonwealth Attorney-General's Department for consideration in
accordance with the Commonwealth Public Interest and Test Cases Scheme
to determine whether funding will be available under that Scheme in the
first instance.
4.47 Some expressed dissatisfaction that as a result of this guideline,
the decision regarding a test case was to some extent now removed from
the legal aid commissions. They were seen as more independent than the
Attorney-General's Department, whom some thought might be more reluctant
to support a test case against the Government. [37]
4.48 The Committee lacks up-to-date information on how well this provision
is working in practice. In particular, it does not know if any legal aid
commissions are using Commonwealth funding to assist test cases which
the Commonwealth itself has declined to support through its Public Interest
and Test Cases Scheme.
The `ordinarily prudent self-funding litigant' test
4.49 The guidelines contain the following explanation for the `ordinarily
prudent self-funding litigant' test:
It must be recognised that legal aid is a benefit funded by Australian
taxpayers. Many taxpayers who are above the means test threshold for the
granting of legal assistance have their own access to justice constrained
in whole or in part because of limited financial resources. To reduce
the inequity between those who have access to assistance and those who
are marginally excluded, the Commonwealth seeks to have strategies adopted
which will provide solutions to assisted clients' problems at minimum
cost. The approach to litigation of an `ordinarily prudent self-funding
litigant', one without `deep pockets', would be to seek to resolve the
matter within a specified, limited dollar allocation. The clear aim is
to put assisted litigants into an equal but not better position than private
litigants without `deep pockets' who risk their own funds.
4.50 This test received little attention in submissions and evidence
to the Committee. It may be that in practice it is not applied to any
extent by the legal aid commissions. The Committee notes that it overlaps
to a considerable degree with the following test the `appropriateness
of spending limited public legal aid funds' test. If the cost-benefit
calculation done under the latter test reveals a lack of net benefit,
then in many situations it would be reasonable to assume that the self-funded
litigant would not be acting prudently if they pursued the matter.
4.51 The Committee observes that much depends on what qualities, especially
what income level, is attributed to this hypothetical litigant. The test
could be used in a very harsh way to reduce grants of legal aid. If the
litigant is assumed to be barely above the very low cut-off point for
receipt of legal aid, then he or she cannot in all likelihood afford to
pay for any sort of adequate representation. If this is the criteria,
then the legally-aided litigant would presumably only be funded to the
similar inadequate level. On this circular reasoning, the inadequate level
of funding provided for legal aid, and hence the excessively low means
test cut-off point, could be used to justify the inadequate funding of
legally-aided litigants.
4.52 The Committee also believes that the test fails to recognise that
a matter which an reasonably affluent person may not consider worth litigating
over may be of crucial importance to a poorer or more disadvantaged person.
By reason of their differing financial circumstances, receipt of a modest
pension or benefit may be of crucial importance to a disadvantaged person's
quality of life, but the sum involved may be of lesser importance to someone
higher up the income scale. The very reason why a disadvantaged person
seeks legal aid to pursue the matter may reflect the difference in their
circumstances. The Committee considers as seriously flawed any application
of the `ordinarily prudent self-funding litigant' test that fails to pay
due regard to the subjective value to the legal aid applicant of the benefit
being sought.
4.53 The Committee notes that on 11 May 1998 the Minister for Finance
and Administration, the Hon John Fahey MP, and the Attorney-General, the
Hon Daryl Williams AM QC MP, announced that their Departments would jointly
fund a $280,000 study to profile privately funded and legally aided cases
to assist in determining effective and equitable provision of legal aid
funding. The study is to be carried out by the Justice Research Centre.
It is to focus on family law matters and it is to be completed by July
1999. The media release announcing the study stated:
This study will examine how much the prudent self-funded litigant spends
on a case and how much a legally-aided litigant spends on a case. This
will assist in establishing benchmarks for legal aid service delivery,
and developing more balanced and consistent public policy. [38]
4.54 The Committee comments that the Commonwealth imposed a test that
legal aid commissions were required to use, without having the necessary
information to adequately explain to them what it means. The Committee
sees this as further evidence that the 1 July 1997 changes were driven
by budget needs rather than any concern for the wellbeing of the legal
aid system and its clients. The Committee nonetheless cautiously welcomes
this belated study. However, it considers that the study, and any use
made of its findings, need to be viewed with some care to ensure that
it does not become a device to justify further reductions in the already
inadequate level of funding for legal aid, rather than to identify any
alleged over servicing by practitioners that may be occurring in legally-aided
family law matters. [39]
Footnotes
[1] For example the document states elsewhere
that protecting the safety of a child or a spouse who is at risk is to
be accorded the highest priority in making grants of aid in family law.
[2] See for example, Transcript of Evidence,
Australian Law Reform Commission, p. 1810.
[3] Australian Law Reform Commission and Human
Rights and Equal Opportunity Commission, Seen and heard: priority for
children in the legal process (ALRC Report No. 84), 1997, rec. 88
(p. 295).
[4] Transcript of Evidence, Australian
Law Reform Commission, p. 1809.
[5] See Appendix 6 below for a table setting
out expenditure under the schemes for the years 1992-93 to 1997-98.
[6] Submission No. 127G, Attorney-General's
Department, p. 4.
[7] Administrative Appeals Tribunal Act 1975,
s. 69(2). See similarly for example, Native Title Act 1993, s. 183(2)(b);
Privacy Act 1988, s. 63(5); Trade Practices Act 1974, s.
170(2).
[8] Submission No. 127H, Attorney-General's
Department, Answers to Questions on Notice, p. 5: a hardship test is not
applied under the following schemes Federal Proceedings (Costs) Act
1981, Judiciary Act 1901, s. 78B, Jurisdiction of the Courts
(Cross Vesting ) Act 1987, s. 6(5); Disability Discrimination Act
1992, ss. 105, 105F, Racial Discrimination Act 1975, ss.
25ZB and 25ZCE, and the Sex Discrimination Act 1984, ss. 83,
83F.
[9] Submission No. 127G, Attorney-General's
Department, p. 5. In the period from 1 July 1994 to 29 April 1998, the
highest amount paid out in a grant under the Race Discrimination Act scheme
was $103,008; under the Sex Discrimination Act scheme it was $36,387 and
under the Disability Discrimination Act scheme it was $15,919 (Submission
No. 127G, p. 5).
[10] Submission No. 127G, Attorney-General's
Department, pp. 4, 6.
[11] Transcript of Evidence, Attorney-General's
Department, pp. 1283-4.
[12] See for example, letter from Victoria
Legal Aid on behalf of all the Legal Aid Commissions to Mr N Reaburn,
Attorney-General's Department, 22 December 1997, p. 3 identifying changes
applying to Victoria Legal Aid.
[13] Transcript of Evidence, Attorney-General's
Department, p. 1825; Submission No. 35D, Victoria Legal Aid.
[14] Transcript of Evidence, Family
Law Practitioners Association, p. 1786.
[15] Submission No. 84, Legal Aid Commission
of NSW, section 1.5.4.
[16] Transcript of Evidence, Legal Aid
Queensland, p. 1761.
[17] Transcript of Evidence, Legal Services
Commission of SA, p. 1606.
[18] Submission No.44D, Legal Services
Commission of SA, p. 4. The submission noted (p. 5) that on the standard
accounting system used by all the legal aid commissions a: code for refusal
on the ground of insufficient funds does exist. The code is not
used by this Commission. It may have been designed for use by Commissions
(such as the Western Australian Commission) who had a practice of allocating
fixed amounts of their funding to each law type per month. This code could
be used to record rejections of applications made after the monthly allocation
was expended.
[19] Submission No. 44C, Legal Services
Commission of SA, pp. 23-4.
[20] Submission No. 127, Attorney-General's
Department, p. 13. But note that the Agreement between Commonwealth of
Australia and Legal Aid Queensland for the Provision of Legal Assistance,
30 June 1997, cl. 4.2(d) states (emphasis added) `until a national
means test is devised, LAQ will apply the means test applicable to
grants of legal assistance in State matters'.
[21] R Percival and S Fischer, Simplicity
Versus Targeting: A Legal Aid Example, National Centre for Social
and Economic Modelling (University of Canberra), Discussion Paper No.
25, December 1997, p. 14.
[22] See for example, Transcript of Evidence,
Legal Services Commission of SA, p. 662: at that time (March 1997) the
cut-off point in South Australia was the lowest in Australia.
[23] Attorney-General's Department, `Legal
Aid in Australia: An Overview', May 1996, p. 5.
[24] Submission No. 127, Attorney-General's
Department, p. 13.
[25] Submission No. 84, Legal Aid Commission
of NSW, section 3.2.2.
[26] Transcript of Evidence, Legal Services
Commission of SA, p. 1606.
[27] Transcript of Evidence, Rev H Herbert,
p. 1030.
[28] Transcript of Evidence, Legal Aid
Commission of NSW, p. 530.
[29] Transcript of Evidence, Victoria
Legal Aid, p. 1416. See also for example, Transcript of Evidence,
Darwin Community Legal Service, p. 79.
[30] Submission No. 178B, Federation
of Community Legal Centres (Vic), p. 8.
[31] Transcript of Evidence, Legal Aid
Queensland, p. 266.
[32] See for some of the underlying research
R Percival and S Fischer, Simplicity Versus Targeting: A Legal Aid
Example, National Centre for Social and Economic Modelling (University
of Canberra), Discussion Paper No. 25, December 1997.
[33] Transcript of Evidence, Legal Aid
Queensland, p. 1753.
[34] Submission No. 94A, Women Lawyers'
Association, pp. 3-4.
[35] Attorney-General's Department, Legal Aid
and Family Services, Guidelines for the Provision of Assistance by
the Commonwealth for Legal and Related Expenses under the Commonwealth
Public Interest and Test Cases Scheme, August 1996, para. 5.1.
[36] ibid., paras. 5.27 and 5.28.
[37] Transcript of Evidence, Environmental
Defender's Office (NSW), p. 1362; Law Society of WA, p. 1496.
[38] Attorney-General and Minister for Finance
and Administration, Joint News Release, `Study to ensure legal aid assists
the needy', 11 May 1998.
[39] See Transcript of Evidence, Family
Court of Australia, p. 1642 for the observation that such over-servicing
is not entirely unknown in cases coming before the Family Court.