CHAPTER 8
The changing legal aid community
Introduction
8.1 Paragraphs 2 and 6 of the September 1996 terms of reference for the
inquiry required the Committee to investigate the respective responsibilities
of the legal profession, the legal aid commissions and other agencies
in the provision of legal aid. This Chapter examines the nature of the
legal aid community, and the role each component plays in providing legal
aid services to the Australian community. The Report then discusses the
changing management culture that has been emerging in the legal aid commissions.
Finally, this Chapter examines the implications of the changed funding
and administrative arrangements on the legal aid commissions, the community
legal centres, and the legal profession.
The Australian legal aid community
8.2 Legal aid in Australia is provided by a diverse group of organisations
that comprises the wider legal aid community. The legal aid commissions
are an important part of this community but are by no means the whole
of it, with the legal profession, the community legal centres and a range
of specialised advocacy and advice groups also playing a central role.
The Committee examined the roles of each.
8.3 Legal aid commissions are independent bodies established through
state and territory legislation. [1] Their major
purpose is to use the funds provided by state, territory and Commonwealth
governments to obtain or directly provide legal services to a specific
population. These legal services cover the provision of advice and information,
and representation in litigation.
8.4 Evidence provided to the Committee suggests that the role of legal
aid commissions cannot be seen in isolation. The commissions themselves
depend on a complex structure of service provision, and are affected by
a variety of factors including the complexity of legislation, the funding
of court services; the number of judges available to hear cases, [2]
and the expectations and needs of the community.
8.5 The other principal elements of the legal aid community are:
- Community legal centres, which may also include specialist legal centres.
Commonwealth funding for community legal centres is paid through legal
aid commissions, while many centres also receive indirect funding or
subsidies from a number of sources including councils [3]
and universities, [4] and many of their staff
are on less than commercial rates or are volunteers. Their lower costs,
in some instances, cannot be seen as an indication of efficient management,
but rather reflect free or subsidised labour and facilities. Legal aid
commissions often provide coordinating and resource services for local
community centres.
- Specialist advisory or advocacy groups funded under various state,
territory or Commonwealth programs, such as the Canberra Rape Crisis
Centre, the NSW Environmental Defender's Office, or the Katherine Regional
Aboriginal Legal Service.
- The legal firms and individuals who either perform work for the legal
aid commissions – at rates which are generally below those of the
market [5] – or who provide a range of
volunteer and pro bono services, often in cooperation with the community
legal centres.
- A range of other legal and social community services, including child
representatives and social workers, psychologists etc. [6]
- The Courts, Administrative Tribunals, and alternative dispute resolution
centres, as the places where many legal aid recipients ultimately resolve
their disputes, are also crucial stakeholders in the legal aid community.
8.6 The Committee has heard evidence that the integrated and interrelated
nature of the legal aid community has not been adequately considered by
the Commonwealth.
8.7 Although legal aid commissions are the most obvious providers of
legal services they also rely heavily on other organisations to provide
cheaper or pro bono services to legal aid recipients; or to provide assistance
to those who are excluded from legal aid or the continuation of legal
aid:
When I refer to the legal aid system, I refer to the cooperative partnership
that exists between legal aid officers, the Legal Aid Commissions in the
states, the private legal profession, which includes paid work and pro
bono work, community legal centres and other organisations that may do
legal work. So there is that cooperative partnership which the committee
has recognised in the past has been one of the saving graces of the legal
aid system. It has not been given a great amount of funding in comparison
to the legal need. [7]
8.8 The Committee is concerned that the focus on the legal aid commissions
does not give sufficient recognition to the complex relationships between
these elements of the overall system. Much of the recent change has focused
on the relationship between the Commonwealth Attorney General's Department
and the legal aid commissions, governed by the statement of Commonwealth
priorities and the guidelines, which the Committee believes were hurriedly
drafted with inadequate consideration to the implications arising from
making widescale changes to one part of a complex and interlinked system.
8.9 The Committee believes that there are two major potential consequences
of the changes to legal aid commissions.
8.10 The first is that the changes imposed on legal aid commissions restricting
their funding and the matters they are permitted to provide assistance
on may act to shift the burden onto other groups within the legal aid
community and as such are only removing a problem from one area and placing
it in another:
funding should be on an integrated basis, integrating all services. I
am talking about an ideal world but if we cut legal aid then that will
have flow-on, adverse impacts on the court itself. It will increase the
delays and it will increase the number of litigants in person. [8]
8.11 The Committee heard evidence that these transferred costs make themselves
felt in many parts of the legal aid community and in ways considered in
more detail below.
8.12 The second effect, and one that particularly concerns the Committee,
arises from the extremely commercial nature of the relationship that the
Commonwealth has implemented between it and the legal aid commissions.
This new relationship is based on business principles which operate on
the presumption that the Commonwealth is a `purchaser' of legal aid services
from the legal aid commissions. The commissions, in their turn, use Commonwealth
funds to `purchase' legal services from private law firms on behalf of
their `clients'. This approach was characterised in a statement by Mr
Robert Cornall of Victoria Legal Aid.
I do not think that Victoria Legal Aid, as a state agency with a significant
budget, even though it has reduced from what it was, should be seeking
to achieve its objectives on the basis of free services. We should not
be asking the profession for favours. We should be providing a commercial
service which offers services to legally assisted clients provided by
practitioners for a fee that they are happy to accept on a proper commercial
basis. [9]
8.13 This trend appears to be a blend of a commercial approach with an
expectation that the less than commercial rates paid would be acceptable
to the profession. However, it was clear from other evidence that, if
the previous interdependent relationship was going to be replaced, the
profession might move towards a much more commercial ethos all round:
The private profession ought to be commended that they have stuck with
it for so long and that they are still prepared to do legal briefs at
a fraction of what they would normally charge. The profession probably
thought that they were all in this together: they were on the boards of
commissions, and they felt that they had some sort of role in the overall
process and that it was an obligation on the part of the profession to
help out and to be involved in legal aid. But the more that we beat them
about the head with our being involved with all sorts of modern competitive
business practices and driving their fees lower, and with our not needing
them to be part of how we run our business, at the end of the day the
more they are going to say, `It has got to be a commercial decision as
to whether we do your work or not, and you cannot be going in that direction
and still expect us to lend a hand and be part of the movement'. [10]
8.14 The Committee appreciates the logic and advantages of the Commonwealth's
approach, but believes that it ignores to some extent the social context
in which the Australian legal aid community operates. In the opinion of
the Committee, legal aid is not a business but a social service. Many
of the providers of legal aid services do work either for free or at greatly
reduced rates, on the premise that they are doing the work as part of
a wider community obligation.
8.15 By weakening this sense of community obligation and social service,
the heavily commercialised approach currently being adopted might weaken
the links between legal aid and the legal profession. Given the value
of work undertaken on a subsidised basis by the legal profession, the
Committee concludes that were the profession to come to regard legal aid
as a purely commercial activity and charge accordingly, the Australian
legal aid system could not provide anything like the current levels of
assistance.
Conclusions and recommendations
8.16 The Committee has found that legal aid in Australia is provided
by a cooperative partnership between members of a wider legal aid community,
including the legal aid commissions, the community legal centres, the
legal profession, and others.
8.17 The Committee believes that the Government, in restructuring legal
aid administrative and funding arrangements, has not given adequate consideration
to the interrelationships between these groups, and as such, has ignored
the wider implications of the changes. These may include a shifting of
the burden from the legal aid commissions to other legal aid providers
and a damaging change to the culture of community obligation within the
legal profession.
Recommendations 14 & 15
The Committee recommends that the Commonwealth implement more
effective arrangements for maximising consultation between the providers
of legal aid in Australia. To this end, it is recommended that the Commonwealth
sponsor the establishment of a National Legal Aid Council, headed by a
Legal Aid Commissioner. This independent permanent body would meet bi-annually
or as required, and would provide advice on legal aid matters at the Commonwealth
and state/territory level.
The Committee also recommends the creation of Legal Aid Councils
in each state and territory. Membership of the councils would comprise
representatives of all members of the legal aid community, as well as
community groups and government agencies. Each council would provide a
representative to the national council.
The creation of this system would provide a vehicle for communication
between users and providers of legal aid. The Committee believes that
there is no adequate mechanism currently in place and argues that its
existence would offer a low cost means to continually refine the focus
and policies of the legal aid community, as well as a means of sharing
information and ideas reflecting current best practice.
8.18 The Committee notes the response of the Government to the Committee's
recommendation, in its First Report into the legal aid system,
to establish a high level task force to advise governments on the legal
aid system. [11] The Committee disagrees with
the Government's assertion that adequate consultative mechanisms are in
place that focus on legal aid issues. The new recommendation puts forward
an alternative means of addressing the issue first raised in the recommendation
in the First Report.
The new management culture and its implications
8.19 The Committee has seen evidence of a wide ranging change occurring
in the culture of the legal aid commissions, reflecting a preoccupation
with commercial management priorities that may operate at the expense
of the social service priorities the Committee believes should underpin
all legal aid decision making.
Efficiency or welfare?
8.20 Legal aid organisations and others providing access to a range of
legal services, require effective management. Witnesses accepted this,
[12] and the Committee agrees that all publicly
funded services must operate efficiently and effectively. However, it
is important that the rhetoric of reform does not obscure the long established
achievements of legal aid commissions, and impose inappropriate changes.
8.21 In assessing the changed approach to funding of legal aid, the Commonwealth
Attorney General's Department in particular suggested that legal aid services
had not been sufficiently business-like in the past and now had to adjust
to a more competitive environment. Mr Norman Reaburn, the Department's
Deputy Secretary, said:
I think it is fair to say that, in the past, legal aid commissions have
been organisations which were far more intensely focused on their social
welfare role than they were on their need to focus on managerial tasks
involved in running a significant organisation. I hope that would not
be taken as being a criticism of previous management of commissions or
anything of that kind. They devote considerable effort and energy into
focusing on that social welfare role, but the times now require them all
to focus far more intensely on the managerial tasks, and that is causing
interesting changes. We have had a number of commissions where the managerial
team has changed, in the not too distant past, as a consequence of the
need to renew skills and take new approaches to these tasks. [13]
8.22 The implication of this assessment was that financial management
and modern administration methods were not understood or accepted by the
various legal aid organisations; and that as a result, financial monitoring
and effective service provision would have to be imposed in order to limit
expenditure and control waste. This statement suggested that the Commonwealth
had not been unfair by introducing more rigid controls on expenditure.
Rather, the legal aid commissions – and, by implication, the state
and territory governments to some extent had spent recklessly. They would
now be obliged to budget more carefully, to establish reserves for possible
large and expensive cases, [14] and to deny
aid, where necessary, even to those who actually met the means and merits
tests.
Commissions as managers
8.23 The extent to which the Commonwealth was responsible for major change
in the direction of legal aid services was discussed by several organisations.
Some believed that the Commonwealth had imposed changes; others that the
Commonwealth and the states had agreed upon a change; and others that
the states had already identified ways of making their services more efficient
and the Commonwealth policies merely reinforced the need for such change.
8.24 The evidence suggested that the major impetus for funding changes
had come from the Commonwealth. However, although the Commonwealth and
some states suggested the changes were required because of poor management
practices, this was really a means of obscuring the basic agenda –
that the Commonwealth was going to cut services, regardless. Thus, a clear
distinction needs to be made between the extent to which commissions have
made substantial management changes in the past to use funding most effectively,
and strategies used by the Commonwealth to justify reductions in service.
Victoria and Western Australia
8.25 Some states had taken action to limit the provision of funding,
prior to July 1997.
8.26 Victoria and Western Australia, appeared to agree with the Commonwealth's
assessment, and presented evidence to the Committee that these two legal
aid services needed substantial administrative change in order to increase
effectiveness. Victoria Legal Aid identified that not all of their savings
had occurred because of initiatives implemented from Commonwealth pressure.
Many also stemmed from Victoria's own awareness that too high a proportion
of expenditure was going on a small number of cases, with the result that
eligible people missed out on funding. [15]
Measures such as funding caps and the refusal to fund cases suitable for
conditional fee arrangements made money available for a larger number
of people. [16] Contributions by recipients
to legal aid costs were also regularly imposed in order to ensure that
some equity was maintained. [17]
8.27 Under current management, Victoria Legal Aid was obliged to restrict
any growth if it wanted to achieve savings in order to brace itself for
future reductions in funding. It imposed fairly strict guidelines on the
allocation of funding in order to make identified savings. These guidelines
on funding caps had been imposed by early 1997 and were linked to the
approaching new agreement and reduced funding:
It is the Board's hope that the financial controls which have now been
imposed on grants of legal assistance will enable Victoria Legal Aid to
operate within its budget for the 1996/97 year and give the organisation
a sound basis to absorb the Commonwealth funding reductions which will
come into effect on 1 July 1997 for the next four financial years. [18]
8.28 Some witnesses criticised this approach, saying that Victoria Legal
Aid was excessively rigid and bureaucratic, and in effect was limiting
the welfare role of the commission by allowing the budget to dominate
management. Family Court Chief Justice Alastair Nicholson told the Committee:
I think the approach that has been taken by the legal aid authority has
been the most rigid and draconian of that of any of the legal aid authorities.
I think it has led to considerable injustices and difficulties in a number
of cases. [19]
8.29 The Western Australian Government believed that a new approach,
concerned with efficient practices, was essential to the operation of
its Legal Aid Commission. In giving evidence to the Committee in February
1998, a consultant to the Ministry of Justice noted the objective of a
review of services:
… [The] role [of the review committee] was to examine any area of
the Legal Aid Commission's operations where there was potential for that
function to be performed more effectively and efficiently.
… Our task was to report … on potential areas for cost savings
identified, on a short term, and those which had longer-term solutions.
[20]
8.30 In broad terms, the outcome of an assessment of the Western Australian
Legal Aid Commission was that it required a professional managerial team.
[21] Lack of budget certainty had affected
the Commission's ability to `undertake any sensible program of business
management reform'. The Commission was therefore required to demonstrate
its capacity `to be well-organised'. [22] This
conclusion did not ignore other reasons for a mismatch between demand
and supply, such as the costs of external legal services. However, it
did emphasise that certain factors, such as administrative overheads and
the price paid for services, were within the control of the Commission
rather than external bodies. [23] By implication,
the Commission had not previously met, or had not been in a position to
meet, certain management practices that would reduce waste. In the current
world of competition between state agencies, it would need to demonstrate
a new approach. [24]
8.31 Other organisations in both Victoria and Western Australia were
opposed to the assessment that new managerial practices were required
to provide an appropriate service in a cost efficient manner. On the contrary,
the Law Society of Western Australia stated that the more rigid guidelines
and the consequent rejection rate had discouraged people from making applications
for assistance. [25]
Queensland
8.32 Legal Aid Queensland had recently experienced some changes in operation
aimed at increasing effectiveness including the development of a phone
information service, experimenting with tendering for services, and setting
up a panel of preferred suppliers. [26] Administrative
costs were to be reduced by providing access to databases; helping prepare
clients through the phone information system; and more efficient administrative
processes. [27] In addition, early intervention
strategies both helped to provide efficient services and meet the needs
of the people involved:
Our experience in Queensland has been that, by getting that early in
the process, quite often matters can be resolved more quickly. If it comes
later in the process, when a lot of costs have been incurred through pleadings
and conferences and trips to court, not only have the positions of the
parties been a bit more entrenched but also it is a bit more difficult
to cap the matter. [28]
8.33 The overall emphasis of Legal Aid Queensland was that it was possible
to be both an efficient manager and to provide a reasonable level of `welfare'
service. However, the organisation did indicate that it was unable to
meet the high level of demand for some services, especially family law,
even though it was able to be reasonably flexible in respect of funding
levels for family law cases and limiting costs by a range of innovative
practices. [29] In this sense, it did not fully
address the issue of the extent to which changes in funding had an adverse
impact on its services and whether these changes required administration
practices which, while successfully limiting costs, also limited access
to `welfare'.
8.34 Other witnesses believed that Legal Aid Queensland was becoming
more `efficient' and management oriented, but that this was not necessarily
beneficial. New legislation had been implemented with minimal opportunity
for public comment, and Law Society and Bar Association representatives
on the Legal Aid Board had been removed, to be replaced by an apparent
`proliferation of accountants'. [30] A preferred
supplier model had also been introduced against the wishes of the legal
profession.
8.35 The Law Society and the Family Law Practitioners Association did
not oppose the innovations of Legal Aid Queensland or the idea of efficient
management. [31] Their objections were to the
fact that, while management strategies could be effective, they should
not be used to obscure the fact that the more basic problem was inadequate
funding. [32] No amount of innovation would
be able to provide appropriate level services in the absence of adequate
resources:
I believe what is being forced on legally aided clients is to have service
provided on a contractor model, not on a professional model. It is a model
akin to builders of a house who say, `If that extra plank, that extra
nail, is not on the contract, you pay more for it'. [33]
New South Wales and South Australia
8.36 The Legal Services Commission of South Australia and Legal Aid Commission
of New South Wales had a somewhat different response to the issue of management
as opposed to welfare role of their organisations. The Legal Services
Commission of South Australia conceded that the funding issue was not
new. It had been a recurrent issue in the history of legal aid provision.
[34] However, it is now a major problem: `this
last episode is really stretching it to the limit and it has just got
to that stage where it is certainly the most difficult I have seen in
the 21 years I have been there'. [35]
8.37 A number of recent reviews of the Commission's operations had demonstrated
that it was an extremely efficient organisation, with up to date management
practices. [36] Because it had sustained a
substantial loss of funding and had been affected profoundly by broad
economic and social change during the 1990s, it had already introduced
funding caps in order to spread available funds as well as built up the
reserves it had lost. [37] Its staff were experienced
managers as well as respected within the legal profession. The line taken
by the Commonwealth – that the organisation was good at the soft
option of handing out money, but unable to cope with hard managerial and
administrative issues – was strongly rejected:
One has to wonder why Commonwealth bureaucrats have continued to level
such vague and unjustifiable criticism at Commissions … when they
themselves failed to provide up to date information to their Minister
about this Commission's service levels and expenditure in 1996.
One must also question the Commonwealth's wisdom in appointing people
with absolutely no experience or background in the legal services industry
to oversee programs delivering legal services. The fact is that many officers
charged with developing and implementing Commonwealth legal aid policy
have no legal qualifications (let alone first hand legal service provider
experience), have never had contact with a client, and consequently have
no understanding of legal practice in the real world. [38]
8.38 The Legal Aid Commission of New South Wales was also of the opinion
that the `welfare' role of a legal aid service was not incompatible with
up to date management and believed that an inefficient legal aid service
would not have been able to survive. Like South Australia, New South Wales
had also been subject to a series of reviews, and argued that it managed
both functions well, having introduced a various management and administration
strategies, and had adapted to changing demands. [39]
8.39 The variation in attitude between states may result from various
factors. In some instances, most obviously Western Australia, there was
clearly a difference of opinion regarding effectiveness and efficiency
between the Western Australian Government and some staff of the Legal
Aid Commission.
Summary
8.40 After hearing considerable evidence on this issue, the Committee
has found that legal aid providers have undergone a period of significant
change, as funding pressures forced reviews of policies and practices.
The Committee appreciates that these changes have been ongoing and commends
the efforts of these bodies to maximise the effective use of legal aid
resources, and notes that these efforts have resulted in a number of innovative
and effective approaches.
8.41 The Committee is concerned, however, that an over emphasis on management
issues may result in a loss of focus on the key issues for a legal aid
agency – that of providing legal services to the needy in the community.
Legal aid agencies are not businesses and `efficiency' is not an end in
itself. It must always be judged against the criterion of `effectiveness'
in providing legal aid.
8.42 The Committee believes that the focus on management issues finding
efficiencies, streamlining procedures, outsourcing, etc. while commendable
of itself, may serve to disguise the underlying lack of funds. The Committee
recognises that no matter how efficiently legal aid agencies are run,
without adequate funding, they will never be able to carry out their job
effectively.
Recommendation 16
The Committee recommends that legal aid agencies, and legal aid
commissions in particular, review their arrangements for community representation
on their management boards and committees. The Committee believes that
strong consultation with key stakeholders is a sound method of ensuring
the legal aid agencies remain focused on their objectives as social service
providers, and maintain a clearer sense of the nature and extent of community
need for legal aid services.
8.43 Having considered the various stakeholders in the Australian legal
aid community and the changed managerial culture, the remainder of this
Chapter examines the wider effects of the changed funding and administrative
arrangements on legal aid commissions, community legal centres and the
legal profession.
The effect on legal aid commissions
8.44 The bulk of the evidence to the Committee stated that the effect
of the changes on the legal aid commissions is to reduce resources to
levels where they are no longer able to adequately carry out their functions.
Even prior to the funding cuts, the commissions were under considerable
pressure to meet the steadily increasing demand for legal aid services.
National Legal Aid in 1996 published an opinion that the shortfall in
funding for legal assistance services in the preceding five years amounted
to $64 million. [40]
8.45 Evidence to the Committee since the latest round of changes and
funding cuts shows a range of costs, direct and indirect, that have impacted
severely on the way the legal aid commissions carry out their functions.
Staffing resources
8.46 An immediate effect on many legal aid commissions has been a reduction
of staff. This places additional workloads on staff who are already stretched
to the limit in terms of their caseloads, and as a corollary effect, causes
rising stress levels through high workloads and the frustration of being
unable to meet the demand and in having to reject so many applications.
8.47 In South Australia for example, in 1995/96 duty solicitors provided
services on 9,775 occasions which represented a 9.3% increase on the previous
year. At the same time, funding constraints meant that the number of lawyers
employed just within the criminal law section, was reduced by three. [41]
Inability to meet expressed demand
8.48 There has been abundant evidence to the Committee that even before
the cuts, the legal aid commissions were under-resourced to meet the community
demand for legal aid. Following the cuts, the situation has become worse.
Waiting lists will become longer, the time in queues before an appointment
can be arranged will grow, and the number of refusals will increase. Evidence
from all states reinforced this point:
LACNSW does not have the capacity to meet demand for its information
and advice services, and has even less capacity to meet demand for legal
representation. For various reasons demand for legal aid services is increasing,
and legal aid funding has not kept pace with that demand. … LACNSW
is struggling to maintain an acceptable level of assistance to the socially
and economically disadvantaged and cannot suffer such a savage cut in
funding and still provide a proper legal service. [42]
The Victorian Legal Aid Commission has made a number of savage compromises
and cuts to the aid that it formerly provided, particularly in the family
law area … [43]
[The Legal Services Commission of South Australia] is struggling to meet
all of the various pressures that are applied to it. [44]
8.49 Queensland's experience was similar: `The Legal Aid Commission of
Queensland is not meeting community demand for legal aid services. Refusal
rates in family law are high and waiting lists for legal advice exist
in regional offices.' [45]
8.50 The Committee believes that these statements reflect a widespread
restriction on the access to justice of many Australians, and prompt serious
questions about the adequacy of the revised arrangements and funding levels.
Restricted areas of assistance
8.51 Also apparent to the Committee is the decrease in the areas of the
law in which legal aid commissions will grant assistance. In NSW, for
example, legal aid is generally unavailable for a wide range of legal
actions: [46]
- Many if not most areas of civil law, including personal injuries and
medical negligence, and victims compensation applications. Except for
applicants at a special disadvantage, legal aid does not cover matters
in the Supreme Court of NSW, Court of Appeal, Land and Environment Court,
Industrial Commission of NSW, Arbitration, Fair Rent Board, and others
- Most immigration matters
- Commonwealth industrial relations matters
- In administrative law, representations in tribunals such as AAT, Commonwealth
employee's compensation claims, citizenship applications, and appeals
concerning Austudy decisions.
8.52 The Committee is concerned that in the understandable efforts to
maintain funds for criminal matters, access to justice is becoming severely
limited in many other areas of the law. Whilst accepting the importance
of providing assistance in criminal law matters however, the Committee
believes that legal aid should equally be available in other matters.
The shifting of demand from expressed demand to unmet need
8.53 The changes are also likely to cause a shift of demand away from
the waiting lists of the commissions out to the broader and largely undefined
category of unmet need. The Legal Services Commission of South Australia
detailed this concern:
The final worry, to me, is a bit of an unknown to quantify. It is the
deterrent effect that restrictions have on people who should be coming
to our office seeking our assistance. Because we are unable to provide
as much assistance as we would otherwise, clearly we may not be helping
as many people as we would want to. But there is also a pool of people
who do not bother to come. They believe stories such as the one in the
paper this morning, `Legal aid crisis', and think, `Well, there's no point
in going there.' They believe stories that are told that legal aid does
not assist people in these sorts of cases. There is, therefore, what seems
to me to be an increasing number of people who will not access our services
because of the effect that these restrictions have had. Unfortunately,
I think, it has a self-fulfilling effect: of course demand will drop off,
and a number of people will either bypass the system or try and cope themselves.
[47]
8.54 As discussed in Chapter 2, it is very unclear what the real level
of unmet demand for legal aid is in Australia. The Committee therefore
fears that the current approach may, by driving people away from the legal
aid system, render the needs of these people invisible. This is a cause
for concern particularly because the change can have the greatest effects
on those in the greatest need:
when people make cuts to services like legal aid what they like to think
they are doing is that, if you have a scale with the most disadvantaged
at the bottom, they are actually just taking a bit off the top and that
the most disadvantaged are still being serviced. But what we are experiencing
is that it is the most disadvantaged at the bottom that continue not to
be served because they are not accessing existing services or they get
dropped off because people are overworked and do not have the time to
take the type of innovative approach that is required in order to reach
those sectors of the community. [48]
An inability to address unmet demand through innovation
8.55 The Committee has been impressed by the ongoing efforts of a number
of the legal aid commissions to maximise the effectiveness of the legal
aid resources spent, and to find innovative ways to address the unmet
need of those who are particularly disadvantaged.
8.56 Queensland Legal Aid, for example, has implemented schemes involving
the following: [49]
- Telephone/fax advice and information services
- Child support forums
- Legal aid conferencing
- Outreach advice, and the Outreach van
- Community workshops, especially in rural communities
- Video links, and an Internet Home Page advice service, targeted particularly
at community organisations who deal with disadvantaged groups.
8.57 In NSW, innovations such as the mental health advocacy service and
the prisoners legal service have been adopted to reach disadvantaged groups.
[50]
8.58 The Committee is deeply concerned that with the constriction of
funds and resources, the commissions will simply not have the resources
to undertake any such innovative programs, or to find ways to reach those
who are particularly disadvantaged. The entire resources of the commissions
will be occupied with attempting to meet the demand for legal advice from
those who come in the door.
8.59 The Legal Aid Commission of Tasmania, for example, pointed out that
a service such as the telephone help line which answered 23,000 calls
in 1996, is a non core service, and will need to be downgraded following
the cuts to its budget. [51] It was previously
funded under the special access to justice program which has now been
withdrawn. It is these important access to justice services which the
Committee is concerned will suffer as the changes in government policy
and funding take effect.
8.60 The Committee believes, on the basis of the evidence presented,
that the funding cuts will reduce the capacity of the legal aid commissions
to offer services that can meet legal aid demand in different or innovative
ways. This can be particularly important in relation to schemes that operate
at the `threshold' level of justice – working to provide basic level
assistance to clients before issues become complicated, entrenched or
enmeshed in litigation. As is often the case, the result will be that
the `urgent' may displace the less clearly defined `important' task of
finding more effective methods to reach those in disadvantaged groups
who are currently missing out on legal aid.
Roles in leadership and coordination
8.61 In the opinion of the Committee, there is also a reduced ability
for legal aid commissions to take a leadership role in the community in
relation to legal issues. In each state and territory, commissions have
an important role in lobbying for equality of access to the law, commenting
on law reform issues, and in particular, being an advocate of the perspective
of those who are usually not heard in the wider public debate. If access
to justice is an accepted objective of the Australian law, those who are
currently denied justice by the system must have a voice in the law reform
process. With their practical experience of representing these people,
the legal aid commissions must have the resources to be active in this
area.
8.62 One method for facilitating this is through community consultation.
This is evident in the structure of the consultative committees within
the Legal Aid Commission of NSW, incorporating sub-committees with wide
community representation to examine special purposes funding, prisoners
legal services, and aid in environmental matters. [52]
8.63 The Committee considers that, with decreasing resources, the commissions
will find it increasingly difficult to sustain these important wider community
roles.
8.64 Legal aid commissions were also perceived as providers of training
and education, both to the profession and to the wider community.
One of the aspects of legal aid which is often not recognised, in my
view, is the important training role that legal aid commissions provide
to both lawyers and the community. Legal aid officers in our office are
constantly involved in community liaison throughout the state. We have
13 officers throughout the state involved in professional bodies and groups,
and they make submissions to government. [53]
8.65 In Western Australia for example, cuts have reduced the capacity
of the commission to fund consultative groups such as the access and equity
working party, [54] which was made up of representatives
of different minority groups within the community and who were part of
the commission's client base.
8.66 The Committee also regards the education role as vital to the community.
Educating people about their rights is the first step towards those people
being able to enforce those rights. As such, education provides a critical
underpinning to social justice.
Uncertainty
8.67 The Committee has also heard evidence attesting to effects of uncertainty
over funding arrangements. The Committee appreciates the difficulties
that this causes in creating a stable planning environment, and the destructive
effect such uncertainty has on the morale of legal aid staff.
the funding uncertainty has certainly impacted very heavily on the morale
of Legal Aid staff, and it is largely associated in two areas with the
respective governments having an opportunity to, with respect, blame each
other for the crisis in legal aid funding, and the necessity for the Legal
Aid Commissions themselves to get on the front foot and come out hitting
with competitive contests for funds with all other government departments
and instrumentalities. [55]
8.68 Similar comments were made by the Youth Legal Service WA:
It is quite clear that the existing funding arrangements have created
enormous uncertainty within the organisation of Legal Aid, and that inevitably,
as we are partners with Legal Aid, spreads to community legal centres
as fellow workers. [56]
8.69 The Committee also believes that the uncertainty in the planning
process may be part of the wider attempts to reduce the independence of
the legal aid commissions, and other legal aid providers. This is discussed
in more detail in the following section.
Independence of the legal aid commissions
8.70 The Committee is concerned at evidence of the increasing lack of
independence of the legal aid commissions, and other legal aid providers,
under the new funding and administrative arrangements. This can affect
the equity and transparency of decisions made by the commissions:
The Legal Aid Commission has a crucial function in terms of being the
biggest legal service provider to disadvantaged people in Western Australia.
It is in the perfect position to be able to identify particular causes,
particular issues that arise, where the actions of governments or other
organisations are having a profound impact on ordinary West Australians.
The Legal Aid Commission with that knowledge base needs to be able to
speak fearlessly about those issues, and not be concerned about what the
consequences might be in standing up to the government. It needs to be
able to take on those test cases if for no other reason than that is going
to be in the long term a more efficient way of administering justice,
if you can identify an issue and allow one particular case to go forward,
but it also requires an independent decision-making process for the allocation
of funding for that to take place. [57]
8.71 Similar comments were made in NSW:
In New South Wales, as I point out in the paper, we have structures that
are designed to guarantee independence. Those structures can only be effective
in delivering independence if the various components of the structures
are funded in a way that allows them to operate effectively independently.
So by controlling the purse strings the potential is for the government
to completely frustrate the structures and control the agenda. [58]
8.72 The use of the detailed and restrictive guidelines seems to have
been a clear factor in the reduction of independent decision making. Where
before, legal aid commissions could exercise considerable freedom in prioritising
matters, and deciding which particular cases should receive support in
the interests of justice, the imposition of the guidelines has introduced
a degree of micro-management of legal aid commission affairs by the Commonwealth.
[the situation] has to be viewed against the background of the agreement,
where the Commonwealth sets the priorities and guidelines under which
the commission is to operate. That occurs not in a hierarchical sense
but on a flat basis. If any commission has a number of applicants who
meet the means, assets, merits and eligibility tests that fall within
the guidelines, one would ordinarily expect that the commission would
feel obliged to provide the service. The discretion of commissions to
restrict or modify those guide-lines so as to remain within budget is
perhaps not so great as it once was. [59]
8.73 The Tasmanian Legal Aid Commission has stated that this trend towards
micro-management by Commonwealth Attorney General's Department has been
exacerbated by the fact that in many cases the micro-management is done
by staff lacking the experience necessary to make such decisions:
The Attorney-General's Department has little knowledge or skill in service
delivery, but does have a capacity to offer cross-border leadership. Nobody
objects to reasonable criteria being laid down that will achieve minimum
standards of service delivery, but the impression that emerges from the
present debate over legal aid is that the Commonwealth wishes to be vastly
more specific in what kind, and how, legal aid services will be delivered
than has been the case in the past. It is not unreasonable to predict
that the result of high-level direction from the Commonwealth in this
regard, delivered from an organisation unfamiliar with these issues, will
cause stagnation of ideas and entrenchment of methods. [60]
8.74 The Committee is also concerned at assertions that the revised guidelines
and arrangements have resulted in a situation where the legal aid commissions
have a very limited capacity to criticise the Commonwealth, or to fund
litigation that challenges Commonwealth decisions:
We were also concerned at the fact that Legal Aid seems to have been
stymied in its ability to critically comment on government legislation
outside of the commission, so that there is a sense that Legal Aid's independence
has been lost. I know that there are examples of Legal Aid in-house solicitors
wishing to comment, say, in public forums such as a conference or something
of that nature, on government legislation and my understanding is that
unless those comments were being made directly to the state Attorney-General,
that those comments were not to be made. [61]
8.75 The Committee considers that recent changes to funding arrangements
are in effect a covert means for the Commonwealth Government to limit
the ability of legal aid providers to engage in litigation against the
government, or to comment critically on government policy:
The agenda of the government is clear. … that is, the government
wishes to set the priority for legal aid spending. The real danger of
this is that, in the criminal and the quasi-criminal judicial field or
in the field where the rights of citizens as against the government are
concerned in particular, it can be threatened. The implied threat in the
article on 27 February this year [1997] was that the Environmental Defenders
Office would suffer cuts in funding if they continued to pursue litigation
against the government. [62]
8.76 The Committee has also heard that the reduced flexibility and independence
of the legal aid commissions discussed above has the capacity to create
difficulty in situations where judges make orders or impose requirements
which the commissions can not meet due to budgetary restraints, or which
would be in conflict with the terms of the Commonwealth's legal aid priorities
or guidelines.
8.77 In Victoria, the Crimes Act has been amended to accommodate the
Dietrich decision, effectively allowing a judge to order Victoria
Legal Aid to provide assistance. This may conflict with the legal aid
guidelines and affect control of the legal aid budget. [63]
This outcome had not yet occurred, however. [64]
8.78 Victoria Legal Aid noted that although it was able to accommodate
the directions to provide support in Dietrich cases, it could not
necessarily afford a higher level of service:
One thing that creates difficulties is if the judges go beyond asking
us to provide legal assistance on our normal terms and conditions and
get into issues of specifying which lawyers should appear and so on. It
makes it harder for us to control the costs. It is certainly our preference
if judges make these orders that all these orders be made on legal aid's
normal terms and conditions. We are then left in control of the decision
making as to who does the work, how it is done and so forth. [65]
Summary
8.79 On the basis of these submissions, it appears to the Committee that
there have been considerable inroads into the traditional independence
of the legal aid commissions. Although the Committee recognises the right
of the Commonwealth to impose conditions on the use of Commonwealth funds,
and to use funding arrangements as a lever to achieve management reforms,
the Committee stresses the importance of maintaining the independence
of the legal aid commissions. The commissions must be free from interference
in their decision making, be able to be critical of the Commonwealth,
and make unilateral decisions about supporting challenges against the
Commonwealth.
Recommendation 17
The Committee therefore recommends that the Attorney-General formally
addresses the issue of independence of the legal aid commissions, and
reports on the measures taken to reinforce and guarantee such continued
independence.
The effect on community legal services
8.80 The changes discussed above have an inevitable `trickle down' effect
on other parties in the legal aid community. Community legal centres,
in particular, tend to be the bottom line in Australian legal aid and
have been bearing the brunt of increased workloads as they try to take
up the cases that cannot be met by the legal aid commissions. For example,
the Women's Legal Service in Western Australia told the Committee:
We have at the Women's Legal Service noticed, since the effect of the
cuts, the dramatic increase in the number of people coming to the service.
If I could just tell you that in the period 1 January 1997 to 31 January
1997 our service dealt with and these are individual persons, and do not
reflect the number of contacts we had with that person, but simply reflect
the number of individuals 199 new clients in that month. In the same comparable
period, from 1 January 1998 to 31 January 1998, we had 379. [66]
8.81 A similar story was related by the Combined Community Legal Centres
Group in Sydney:
We are finding that there is an increasing demand for legal advice. Our
centre has had an increase of 22 per cent in client contacts in the last
12 months. … There is a similar problem with specialised services
such as the Women's Legal Service, the Environmental Defender's Office
and the Tenants Union, which also provide specialised telephone advice
lines. We refer clients there for specialised advice and they ring us
back and say, `The line's busy. I've been trying for two days.' These
services are heavily overloaded and the demand far outweighs the supply
in those areas. But this is a particularly important aspect of legal service
for people in rural areas who cannot access legal services on a face to
face basis. [67]
8.82 The resulting pressures on various community legal centres are enormous
as the Federation of Community Legal Services (WA) pointed out to the
Committee:
The impact on community legal centres is huge. For example, and I have
to say this is state-wide, in the northern suburbs we are the only community
legal centre in a population of over 400,000 people. We have a legal advice
bureau at Mirrabooka and we had a legal advice bureau at Joondalup. We
do have one once a fortnight at Duncraig and Beldon, but they are going,
it is our understanding. That leaves one agency and over 400,000 people,
which is quite incredible.
In terms of minor assistance, if minor assistance is under threat at
Legal Aid because of phone lines then it is going to be left to community
legal centres to pick it up, and that is in the area of family law in
particular. We are not able to cope with the demand. [68]
8.83 Given the limited funding of the centres, and their reliance on
volunteer assistance, the Committee appreciates that there are real limits
to their capacity to manage this increased load.
The effect of restricted legal aid for environmental litigation
8.84 The Committee has also become concerned at the justice implications
of the changes to the funding arrangements for the Environmental Defender's
Offices (EDOs) under the Commonwealth Community Legal Aid Scheme. As the
ACT EDO explained in its submission:
As part of the 1997-98 budget the Commonwealth government altered the
funding arrangements for the Environmental Defender's Offices so as to
preclude those offices from any litigation related work. This involved
taking the EDOs out of the general Commonwealth Community Legal Centres
Program and creating a new model known as the Commonwealth Community Environmental
Legal Program. The Commonwealth has not taken similar action in relation
to any other section of community legal centres that it funds. …
Singling out environmental legal services which are almost exclusively
Commonwealth funded for these restrictions serves to restrict the potential
for these services to provide a complete range of legal services and denies
people legal advice and assistance in the circumstances where they most
need it. [69]
8.85 The Committee queries the reasoning behind the Commonwealth Government's
decision to impose upon the EDOs rules that are different from all other
community legal centres, and questions the motives of such action. The
Committee also considers that this decision was made without properly
taking into account the special nature of the legal aid assistance provided
to the EDOs and the role this has in providing access to justice for the
general community.
8.86 The Committee recognises that applicants for legal aid to pursue
environmental litigation are unlike most other legal aid applicants in
that they are generally seeking to bring about the enforcement of the
law in the public interest:
… it is rare for members of the public to come to TREC [Toowoomba
and Region Environment Council] on an issue in which they have a vested
interest. Their concerns are generally with regard to biodiversity and
nature conservation, and sustainable use of our dwindling water resources.
[70]
8.87 In a financial environment in which resources for Commonwealth and
state agencies are becoming increasingly limited, it is difficult for
environment protection agencies such as Environment Australia to adequately
enforce observance of the law by industry and developers. Private citizens
acting to enforce environment and planning laws in the public interest
are therefore performing a valuable public service, largely at their own
expense. The restriction placed on the EDOs to use Common-wealth funds
for litigation places an enormous restriction on the ability of public
interest litigants to perform this role and is therefore contrary to the
public interest.
8.88 The Committee has also noted the role of the EDOs in assisting public
interest litigants to apply for legal aid: `to apply for legal aid people
need to make a fairly sophisticated application. They need to understand
the nature of their case and to set that out simply in order to qualify
for legal aid and pass the merits test.' [71]
8.89 The EDOs have a role in protecting public interest environmental
litigants from legal counter-attack by developers in what have become
known in the USA as Strategic Litigation Against Public Participation,
or SLAPP, suits. The NSW EDO raised this issue in evidence to the Committee:
On occasion people ring up and say that they have been sued. They may
have been participating in discussion about a particular development and
they have been sued for defamation. We are acting for two people who made
a submission to a local government authority. The submission was acquired
by the corporation under a freedom of information application and they
have been sued for making a submission in a public process. Those types
of people are often very bewildered and frightened and the limitation
on access to even simple advice is quite devastating for those people.
[72]
8.90 As a further point, the Committee notes that there is usually an
large disparity between the financial resources of public interest environmental
litigants and developers. This means that in many cases the public interest
litigant without assistance is simply not able to mount effective legal
action. To further complicate the issue, the Committee has heard evidence
that, particularly in smaller states such as Tasmania, the limited number
of lawyers with expertise in environmental matters, hampers the access
of environmental litigants especially in rural areas.
as it is a small state, there are few specialist practitioners in the
area of environmental law, and there is always the issue of conflict of
interest whereby clients are not able to be represented because the legal
practitioner has already done some work for the company or individual
who is the opposing party. [73]
8.91 The Committee been told that there are other significant barriers
to individual action such as the cost indemnity rules which effectively
prohibit private litigants:
A significant example is cost indemnity rules, as it is unacceptable
that public interest litigants have to undertake the risk of personal
financial loss, whilst the enforcement of public environmental rights
benefits the wider community. [74]
8.92 In cases where the EDOs and legal aid cannot assist, there is little
alternative for public interest litigants:
We note the reference to referral of clients to other legal services.
By way of clarification, the Public Interest and Test Case Scheme cannot
be seriously considered as an alternative. The statistics for grants over
the past ten years speak for themselves. Of the legal aid bodies in each
of the states, only the Commissions of NSW and Tasmania have policies
to consider environmental matters and grants are made in very limited
circumstances. [75]
8.93 With the EDOs unable to provide assistance, the obstacles to justice
outlined above result in cases of manifest injustice to the individual
and harm to society as a whole, as laws are able to be flouted by companies
and developers.
Case Study
Mrs X and her husband have young family and run a medium-sized dairy
farm in the north of Tasmania. In September 1996 quarrying operations
began near her farm. She found that the necessary permits had not been
given. After she complained for a considerable period without success,
the quarrying operations were eventually suspended pending a decision
on permits. She approached the EDO on behalf of the other residents concerned
about the environmental impact of the quarrying. The EDO advised Mrs X
that it would be unable to assist her should the Council decide to grant
the permit and should she decide to appeal it to the Resource Management
and Planning Tribunal. Mrs X and the residents are likely to not pursue
any appeals because they simply do not have the money to pay a private
lawyer to assist them; they are concerned that the local council was quite
happy for this operation to continue with no environmental safeguards
until they complained and now the residents will have no support. [76]
8.94 The Committee has seen that even before the new conditions were
imposed upon the EDOs, there were significant barriers to private citizens
seeking to enforce environmental and planning laws in the public interest.
With the EDOs now prevented from providing public interest litigants with
assistance or advice, these barriers have now become even greater. The
Committee is of the opinion that the singling out of the EDO scheme for
special restrictions is unjustified and contrary to the national interest,
and recommends that it be revoked.
We believe it is unfair to expect individuals to wholly finance cases
that are brought before courts in the public's interest when the whole
community ultimately benefits. [77]
Recommendation 18
The Committee recommends that the special arrangements preventing
the Environmental Defender's Offices undertaking litigation be revoked.
Commonwealth funding should be availability to provide assistance for
all legal services, including advice and litigation.
The effect on the legal profession
8.95 The Committee acknowledges that the legal profession already provides
a significant amount of legal assistance on either a volunteer or reduced
fee basis. The Committee believes the current changes to the Australian
legal aid system are based on a belief that a greater percentage of the
overall legal aid load can be shifted to the legal profession.
8.96 Work undertaken by the legal profession in support of legal aid
includes: [78]
- Legal aid work at substantially discounted rates even relative to
basic scale rates.
- Voluntary assistance necessary to maintain services such as community
legal advisory services, duty solicitor services and advisory services
at places such as the Family Court and the Magistrates Court.
- A `First interview' scheme whereby a nominal fee is charged for an
initial 30 minute consultation, providing an important relief process
for other legal aid pressure points.
- Significant pro-bono services to individuals, charitable or religious
groups, and to a wide range of community groups. For example, in NSW,
the profession has been a partner in the establishment of the Public
Interest Law Clearing House to provide assistance to people in relation
to public interest cases with work done on a pro bono basis. [79]
8.97 This work amounts to a significant commitment to the community.
The Law Society of South Australia, for example, estimates that conservatively,
some 10,000 hours of completely free legal work is estimated to be undertaken
by practitioners in South Australia each year, with a further 220,000
hours of reduced or low cost work. [80] The
Law Council of Australia in its submission states:
The National Legal Aid Advisory Committee has estimated that the total
contribution of the profession between 1984 to 1989 was $109 million by
way of subsidy.
The private legal profession also plays a significant and often unheralded
part in providing its expertise free of charge in the administration of
the legal aid system. [81]
8.98 The Committee note the submissions of many lawyers' associations,
that the changes to the legal aid arrangements are inevitably shifting
more of the legal aid burden onto the private profession and that there
is a limited capacity for the profession to take up this extra burden.
The Committee has heard that given the commercial pressures many legal
practitioners are under, it is not realistic for them to perform extra
pro bono work. This is especially the case given a background of rising
cost structures and legal aid fees paid on scales that are already considerably
below commercial rates. [82]
8.99 The Committee agrees with the proposition that while private practitioners
have historically provided these services at well below market rates,
they cannot afford to provide endless legal aid services at a loss. The
point that the lawyers' associations have stressed is that the pro bono
work provided by the private profession is an element of a wider legal
aid structure and should never be considered a substitute for it. The
Law Society of NSW commented on this:
The Law Society is concerned that the erosion of legal aid services because
of budgetary constraints will result in many people seeking pro bono assistance.
The pro bono schemes must not be seen as a substitute for legal aid and,
for reasons which should be obvious, there are limits to the extent to
which solicitors are able to provide their services to people free of
charge. [83]
8.100 An associated point is that much of the legal advice services offered
through the law associations are limited to the extent that they provide
advice not representation in litigation.
8.101 For this reason, the Committee endorses the submission of the lawyers'
associations in arguing for a commitment to adequate Commonwealth funding
for legal aid, in order to maintain the cooperative partnership between
legal aid providers.
Summary
8.102 Overall, the Committee believes that the current government has
seriously misunderstood the nature of the extended legal community involvement
in the provision of legal aid services and of discounted or pro bono services
to other members of the broader community.
8.103 In failing to understand the complex structure in which such services
are provided, the Government may have thought that reducing funding to
one part of the structure would be overcome by additional contributions
from the other components. This view manifestly misunderstands that the
amount of legal aid provided in the past has only been possible, on the
whole, because of the substantial contribution of the legal profession.
Recommendations 19 & 20
The Committee recommends that the National Legal Aid Council drafts
guidelines to cover the terms and conditions under which elements of the
legal aid community provide legal aid and related services.
The Committee recommends that there be full recognition of the
contribution made by the legal aid community to the provision of legal
services for the community, especially within the past two years.
Footnotes
[1] A brief outline of the evolution of legal
aid commissions is in the Committee's Second Report, pp. 18-20.
[2] Transcript of Evidence, Family Court
of Australia, pp. 1636-7.
[3] Transcript of Evidence, Campbelltown
Legal Centre, pp. 1377-8.
[4] Transcript of Evidence, Newcastle
Legal Centre, pp. 1389, 1394; Kingsford Legal Centre, p. 1711.
[5] See, for example, Chapter 3 above.
[6] The contribution made by the various organisations
to the delivery of legal services was outlined in Chapter 2 of the Committee's
Second Report.
[7] Transcript of Evidence, Federation
of Community Legal Centres (Vic), p. 1448.
[8] Transcript of Evidence, Family Law
Practitioners Association, p. 1785.
[9] Transcript of Evidence, Victoria
Legal Aid, p. 1415. See also Submission No. 35, Victoria Legal
Aid, p. 4 and Robert Cornall, `Legal aid – the profession's
contribution', Law Institute Journal, April 1992, pp. 232-3.
[10] Transcript of Evidence, National
Legal Aid, p. 1654.
[11] The text of the Government response to
the Committee's First Report and Second Report is set out
in Appendix 3 below.
[12] See for example, Transcript of Evidence,
Family Court of Australia, p. 1642-3.
[13] Transcript of Evidence, Attorney-General's
Department, p. 1326.
[14] Transcript of Evidence, National
Legal Aid, p. 1649.
[15] Transcript of Evidence, Victoria
Legal Aid, p. 1405. The Legal Aid Commission of WA also stated that guidelines
were in place long before July 1997 (Submission No. 150, pp. 2,
4). These guidelines, limiting the types of cases that could apply for
funding and the amounts of funding that could be paid for `approved' cases,
had arisen for two reasons: the limits to Commonwealth funding, and the
massive demand for services.
[16] Transcript of Evidence, Victoria
Legal Aid, pp. 1405-6.
[17] Transcript of Evidence, Victoria
Legal Aid, p. 1406; Submission No. 35C, Victoria Legal Aid, p.
1.
[18] Submission No. 35A, Victoria Legal
Aid, Attachment 1, p. 2.
[19] Transcript of Evidence, Family
Court of Australia, p. 1632. See also pp. 1635, 1637, 1643.
[20] Transcript of Evidence, Western
Australian Ministry of Justice, p. 1509.
[21] Transcript of Evidence, Western
Australian Ministry of Justice, pp. 1510, 1511.
[22] Transcript of Evidence, Legal Aid
Commission of WA, p. 1511.
[23] Transcript of Evidence, Legal Aid
Commission of WA, p. 1513.
[24] Transcript of Evidence, Legal Aid
Commission of WA, p. 1523.
[25] Transcript of Evidence, Law Society
of WA, p. 1493 and see also Submission No. 183A, Law Society of
WA, p. 1.
[26] Transcript of Evidence, Legal Aid
Queensland, pp. 1752 et seq.
[27] Transcript of Evidence, Legal Aid
Queensland, pp. 1752-4.
[28] Transcript of Evidence, Legal Aid
Queensland, p. 1755. See also Transcript of Evidence, Family Court
of Australia, p. 1643.
[29] Transcript of Evidence, Legal Aid
Queensland, pp. 1754-7.
[30] Transcript of Evidence, Queensland
Law Society, p. 1777.
[31] Transcript of Evidence, Family
Law Practitioners Association, pp. 1784-5.
[32] Transcript of Evidence, Queensland
Law Society, pp. 1779-81.
[33] Transcript of Evidence, Family
Law Practitioners Association, p. 1781.
[34] Transcript of Evidence, Legal Services
Commission of SA, p. 1593.
[35] Transcript of Evidence, Legal Services
Commission of SA, p. 1593.
[36] Submission No. 44E, Legal Services
Commission of SA, Appendices A and B.
[37] Submission No. 44E, Legal Services
Commission of SA, p. 3.
[38] Submission No. 44E, Legal Services
Commission of SA, p. 5.
[39] Transcript of Evidence, Legal Aid
Commission of NSW, pp. 1713-4.
[40] Submission No. 80, Legal Aid Commission
of Queensland, p. 22.
[41] Submission No. 44, Legal Services
Commission of SA, p. 3.
[42] Submission No. 84, NSW Legal Aid
Commission, p. 1.
[43] Transcript of Evidence, Law Institute
of Victoria, pp. 404-5.
[44] Transcript of Evidence, Legal Services
Commission SA, p. 1589.
[45] Submission No. 80, Queensland Legal
Aid Commission, p. 7.
[46] Submission No. 84, Legal Aid Commission
of NSW, p. 1.12.
[47] Transcript of Evidence, Legal Services
Commission of SA, p. 1589.
[48] Transcript of Evidence, Campbelltown
Legal Centre, p. 1371.
[49] Submission No. 80, Queensland Legal
Aid Commission, p. 8.
[50] Submission No. 84, Legal Aid Commission
of NSW, p. 1.2.
[51] Submission No. 43, Legal Aid Commission
of Tasmania, p. 2.
[52] Submission No. 84, Legal Aid Commission
of NSW, p. 13.
[53] Transcript of Evidence, Legal Aid
Queensland, p. 1762.
[54] Transcript of Evidence, Mental
Health Law Centre, pp. 1557-8.
[55] Transcript of Evidence, Legal Aid
Commission of WA, p. 1523.
[56] Transcript of Evidence, Youth Legal
Service (WA), p. 1531.
[57] Transcript of Evidence, Federation
of Community Legal Centres (WA), pp. 1537-8.
[58] Transcript of Evidence, Public
Defenders (NSW), p. 983.
[59] Transcript of Evidence, Law Council
of Australia, p. 1310.
[60] Submission No. 43, Legal Aid Commission
of Tasmania, p. 5.
[61] Transcript of Evidence, Mental
Health Law Centre, p. 1557. See also paragraph 4.47 above on concerns
regarding the Commonwealth's role in decisions about funding of test cases
against the Commonwealth.
[62] Transcript of Evidence, Public
Defenders (NSW), p. 977.
[63] Transcript of Evidence, Victoria
Legal Aid, pp. 1403, 1411-12.
[64] Transcript of Evidence, Victoria
Legal Aid, p. 1412. See also para. 5.93 above on whether the Family Court
has the power to, in effect, order a commission to provide legal aid.
[65] Transcript of Evidence, Victoria
Legal Aid, p. 1412.
[66] Transcript of Evidence, Federation
of Community Legal Centres (WA), p. 1534.
[67] Transcript of Evidence, Combined
Community Legal Centres Group, p. 957.
[68] Transcript Evidence, Federation
of Community Legal Services, p. 1532.
[69] Submission No. 172, Environmental
Defender's Office ACT, pp. 1-2. See also Submission No. 179, Wide
Bay Burnett Conservation Council, p. 1.
[70] Submission No. 175, Toowoomba and
Region Environment Council, p. 1.
[71] Transcript Evidence, Environmental
Defender's Office (NSW), p. 1361.
[72] Transcript Evidence, Environmental
Defender's Office (NSW), p. 1361.
[73] Submission No. 182, Environmental
Defenders Office (Tas), p. 3.
[74] Submission No. 176, Queensland
Conservation Council, p. 1.
[75] Submission No. 172, Environmental
Defender's Office (ACT), Attachment 2(c), p. 3.
[76] Submission No. 182, Environmental
Defenders Office (Tas), p. 2.
[77] Submission No. 179, Wide Bay Burnett
Conservation Council, p. 1.
[78] Submission No. 52, Law Society
of SA, p. 4.
[79] Submission No. 146, Law Society
of NSW, p. 10.
[80] Submission No. 52, Law Society
of SA, p. 6.
[81] Submission No. 126, Law Council
of Australia, p. 113.
[82] See Chapter 3 above on the rates paid
under legal aid.
[83] Submission No. 146, Law Society
of NSW, p. 9.