Appendix 3


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Legal Aid Report 3

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.