Appendix 3
Government response to the Committee's First and Second reports
On 27 May 1998, the Government tabled in the Senate the following response
to the Committee's first and second reports.
Senate Legal and Constitutional References Committee
Inquiry into the Australian Legal Aid System
The Senate Legal and Constitutional References Committee has released
two reports on its Inquiry into the Australian Legal Aid System. The first
report was tabled on 26 March 1997. The second report was tabled
on 26 June 1997.
The Government has carefully considered the issues raised in the Committee's
reports and believes that the major recommendations of the Committee are
already being addressed.
Throughout the Government's response the term "child representative",
which is the current term under the Family Law Act, refers to "separate
representatives" as used in the Senate Committee's reports.
This is the Government's response to the Committee's recommendations.
First Report 26 March 1997
Recommendation
The Committee recommends that the Government give consideration to establishing
a high level representative task force to advise Governments on the legal
aid system and its place in Australia's justice system.
Response
The Government is satisfied that existing mechanisms for provision of
research and policy advice to the Government are sufficient to allow the
Government to foster reform and ensure more cost effective service delivery
and greater national equity in the provision of services. These mechanisms
include Commonwealth representation at regular meetings with legal aid
commission directors through the National Legal Aid forum, participation
in the Law Council of Australia's Strategic Initiatives Committee, and
involvement in criminal law and family law groups. Appropriate funds have
been allocated to achieve these goals and the Government is of the view
that commitment of more Government funds would not add value to the legal
aid system.
Second Report 26 June 1997
Recommendation 1
The Committee recommends that the Government, in cooperation with the
Law Council of Australia, undertake research to determine the extent and
nature of, and the motivation for, the legal profession's subsidy of legal
aid provision in Australia.
Response
The Government recognises that the private legal profession, academics
and students in law, play a significant role in providing free legal services
for disadvantaged members of the community. The Government also recognises
the continuing vital role played by members of the profession in the ongoing
provision of legal aid.
Research into the legal profession's motivation in cooperating with and
assisting in the provision of legal aid and to determine the `extent and
nature' of the legal profession's involvement is not an appropriate role
for Government and is best left to Law Societies and Bar Councils.
Recommendation 2
The Committee further recommends that the Government formally acknowledge
the contribution of the legal profession through an annual award program
recognising the pro bono work undertaken by individuals and firms.
Response
While the Government is deeply appreciative of the involvement of the
private legal profession in providing pro bono legal work, it does not
see that it has a role in recognising the work of individuals and firms.
The Government recognises that individuals and firms have their own motivations
for providing pro bono services and that pro bono work is generally seen
as accepting a responsibility to society. Individual legal aid commissions
or Law Societies may wish to embark on developing an award system, identifiable
by a certificate or other recognisable public symbol, as a demonstration
of their appreciation.
Recommendation 3
The Committee recommends that the Government, in cooperation with the
Law Council of Australia, give consideration to the establishment of a
new initiatives development and evaluation fund to encourage the trialling
of innovative methods of providing legal information, advice and education
provision by legal aid services providers. Such a fund would preferably
have an out years component to enable successful and effective initiatives
to continue to function and provide incentives for sponsor involvement.
Response
The pursuit of innovative service delivery is not something that requires
additional funding. Under the new Commonwealth State/Territory agreements
the Commonwealth provides funding for matters arising under Commonwealth
law including primary dispute resolution services, legal advice, legal
information and community legal education services. Within this framework
new initiatives are being appropriately researched and piloted to determine
the usefulness of such practices by legal aid commissions. For example,
Legal Aid Queensland has established an information kiosk in its head
office which provides legal aid clients with an online touch screen service
which allows clients to search for information on a range of legal problems
and print out forms (basic divorce papers can be filled out and printed
off within 20 minutes using this service). Legal Aid Queensland is also
trialling electronic lodgement of legal aid applications by a number of
private law firms and developing a simplified method of means testing
applicants for legal aid.
Recommendation 4
The Committee recommends that the Commonwealth should ensure that the
impact of the Dietrich principle on the legal aid system is monitored.
Response
The Dietrich principle is not solely an issue for the Commonwealth as
legal aid for criminal matters is primarily funded by State Governments.
The matter is on the agenda of the Standing Committee of Attorneys-General
(SCAG). SCAG will deal with the issues through a coordinated response.
Recommendation 5
The Committee further recommends that the Attorney-General take up in
SCAG the need for it to complete its consideration of the impact of the
Dietrich principle as a matter of priority.
Response
The Government is already fully committed to resolving the issue through
SCAG as an issue of priority. The South Australian Government has developed
draft legislation in 1996 to deal with the implications raised by the
Dietrich decision. SCAG is awaiting receipt of the amended Bill
for further consideration. (South Australia has been having difficulty
in finalising the Bill and is reviewing its approach in line with the
Kable v DPP decision).
Recommendation 6
The Committee recommends that the Commonwealth Government ensures that
adequate funding is available to legal aid commissions for the provision
of separate representation of children in family law matters having regard
to the guidelines set down in the Re K decision.
Response
Under the recently negotiated Commonwealth/State funding arrangements,
family law matters have been identified as a priority for expenditure
of funds for grants of legal assistance. One of the Commonwealth's highest
priorities is children caught up in Family Court disputes. Funding for
child representatives is ensured within this priority, as part of the
general allocation of funds to cover Commonwealth matters.
Recommendation 7
The Committee recommends that the Attorney-General's Department, in cooperation
with legal aid service providers and the Family Court, initiate the development
of a sophisticated model to determine more precisely the level of resources
required to provide separate representation for children in appropriate
situations. Such a model will enhance the ability of the Government to
appropriate sufficient funds for the separate representation of children
on a reviewable recurrent basis.
The Committee notes concerns about the lack of a national, uniform approach
to the legal aid implications of Re K.
Response
Existing mechanisms identify Commonwealth priorities and will ensure
allocation of appropriate levels of funding. The Commonwealth will be
moving towards needs based funding for legal aid commissions in future
years. Quarantining funding would reduce the flexibility of the legal
aid commissions to determine their budgets and would remove any incentive
for service providers to pursue greater cost effectiveness in prioritising
services.
Recommendation 8
The Committee recommends that the Commonwealth Government develop national
uniform guidelines to be applied by the legal aid commissions when funding
child representation matters.
Response
Legal assistance for matters of Commonwealth priority is administered
by the respective legal aid commissions under guidelines outlined in the
1997/98 legal aid agreements.
These guidelines ensure consistency across the range of commissions for
the provision of assistance in all Commonwealth matters, including child
representation matters. The Commonwealth has reviewed these guidelines
in consultation with State/Territory governments, legal aid commissions
and other relevant bodies, with a view to implementing nationally consistent
guidelines by 1 July 1998.
The Government notes the minority report prepared by Government Senators
on the Committee and agrees with the commentary provided.