Table of Contents
Preface
Terms of reference and first two reports
Further steps in the inquiry
Structure of the report
Summary and Recommendations
CHAPTER ONE
Events since the second report: an Update
Transition to the new legal aid agreements
An overview of the new agreements
Separate representation of children
The Dietrich decision
Government response to the Committee's previous reports
Chapter Two
Inadequate data on the state of the legal aid system
Introduction
Inadequacies of the Statistical Yearbooks
What the Yearbooks contain
Delays in producing the annual volumes
Relevance of the information included
Inadequate data on the `unmet need' for legal aid
Inadequate monitoring the impact of the 1 July 1997 changes
Fragmentation of the legal aid system
Conclusions and recommendations
Chapter Three
Funding issues
Introduction
Views that the level of funding is inadequate
General comments
Reports of funding crisis
Litigants in person
Need for more comprehensive information
The numbers of unrepresented litigants
Impact of unrepresented litigants
Disparities in salary levels and fee rates
Comparison of salary levels
Comparison of rates of payment to private profession
Allegations of over-servicing by the DPP
Impact of disparities
Conclusions
Increased administration costs
Chapter Four
Priorities and guidelines general Issues
Introduction
`Commonwealth Priorities'
Special legal assistance schemes
`Commonwealth Guidelines'
Content of the guidelines
Use of guidelines to justify refusals made for budgetary reasons
The means test
Content
Lack of uniformity and excessive stringency
Use of resources
The merits test
The `reasonable prospects of success' test
The `ordinarily prudent self-funding litigant' test
Chapter Five
Legal AID in Family law matters
Issues relating to Commonwealth priorities in family law
Property matters unrelated to any other priority matter
Priority given to primary dispute resolution
Domestic violence issues
Commonwealth compared to state and territories remedies
Other impacts of the new arrangements
Need for legal assistance in domestic violence issues
Other funding for domestic violence
Conclusions and recommendations
Issues relating to the Commonwealth guidelines capping
Introduction
Number of cases affected by caps
Transition problems with caps
Benefits of caps
Criticisms of caps
Cap on amount for child's special representative
Discretion to exceed caps
Amendments to the definition of `matter'
Committee's conclusions on capping
Other issues relating to the Commonwealth guidelines
Separate representation for children
Cost recovery for special representation
Discharge or amendment of parenting orders
Property orders limits on value of the property
Lack of uniform application of Re K guidelines
Chapter Six
Legal Aid in Criminal Law Matters
Scope of matters covered by Commonwealth funding
Viability of separating Commonwealth from state/territory criminal matters
Inflexibility of the guidelines
Merits tests for criminal law matters
Caps and expensive criminal law cases
How the cap operates
Impact of the cap
Inadequacy of current provisions for dealing with expensive cases
Chapter Seven
Legal aid in civil law matters
Commonwealth priorities and guidelines
Criticisms in relation to the priorities and guidelines
Limited coverage
Removal of most immigration matters from legal aid funding
Social security matters
Product liability cases
Discrimination cases
War veterans matters
Common law claims
Alternatives to legal aid
Conditional cost and contingency fee arrangements
Legal expense insurance
Viability of the distinction between Commonwealth and state/territory
matters
Chapter Eight
The changing legal aid community
Introduction
The Australian legal aid community
Conclusions and recommendations
The new management culture and its implications
Efficiency or welfare?
Commissions as managers
Victoria and Western Australia
Queensland
New South Wales and South Australia
Summary
The effect on legal aid commissions
Staffing resources
Inability to meet expressed demand
Restricted areas of assistance
The shifting of demand from expressed demand to unmet need
An inability to address unmet demand through innovation
Roles in leadership and coordination
Uncertainty
Independence of the legal aid commissions
Summary
The effect on community legal services
The effect of restricted legal aid for environmental litigation
The effect on the legal profession
Summary
Chapter Nine
The effect on the wider community
Introduction
Community awareness of legal services
Increased involvement of the community in utilising rights
Need for appropriate services
Rural and regional services
Complex legislation increases need for legal assistance
The effect of funding changes on individuals
Evidence on the effect of changes to legal aid
The effect on `Commonwealth persons'
Measurements of effect on individuals and groups
Lowering of self-esteem
Despair and anger
Revolving door syndrome
Cynicism and disillusion
Need for other services
Loss of involvement in the community
Effects in the family law area
Effects on people charged with criminal offences
Effects on the community
Chapter Ten
Tax Deductibility of legal expenses
Introduction
Recommendations on tax deductibility in recent reports
Lack of data on the amount of deductions claimed
Criticisms of the current tax deductibility regime
Responses to criticisms of the current tax deductibility regime
Alternatives to the present rules
Conclusions and recommendations
Appendix 1
Individuals and organisations that provided the committee with submissions
Appendix 2
Public hearings and witnesses since the SECOND report
Appendix 3
Government response to the Committee's First and Second reports
Appendices 4 to 8 are not available electronically, if you would like
a copy of these appendices please contact Legal and Constitutional Committee
on (02) 6277 3571.
Appendix 4
Legal Aid Agreement between the Commonwealth and Victoria
Appendix 5
Comparison of the Legal Aid Agreements
APPENDIX 6
Commonwealth Financial Assistance Schemes
Appendix 7
Legal Assistance Provided Outside Legal Aid
Programs
APPENDIX 8
EXTRACT FROM COURIER MAIL, 19 February 1998
INQUIRY INTO LEGAL AID: GOVERNMENT SENATORS'
RESPONSE TO THIRD REPORT
by Senators Helen Coonan, Eric Abetz and William O'Chee
ADDITIONAL COMMENT BY THE AUSTRALIAN DEMOCRATS
by Senator Andrew Murray