PREFACE
Referral and conduct of the inquiry
On 17 September 1996, the Senate referred to the Legal and Constitutional
References Committee an inquiry into the legal aid system in Australia.
The terms of reference for the inquiry are as follows:
(1) The capacity of the Australian legal aid system to meet community
demand for:
(a) legal advice and information; and
(b) representation and other advocacy services.
(2) The respective responsibilities of the Commonwealth, State and
Territory Governments and the profession in the provision of legal aid
through Legal Aid Commissions and other agencies and mechanisms.
(3) The implications for Commonwealth responsibility for legal assistance
arising from:
(a) its international obligations; and
(b) its interests in achieving national equity and uniform access
to justice across Australia.
(4) The nature and level of legislative, organisational and administrative
impediments (including court filing fees) to effective delivery of legal
assistance.
(5) The levels of disparity between the Commonwealth Government's payment
of legal services it uses (both in-house and from private practice)
and rates of payment to legal aid lawyers (both in-house and from private
practice).
(6) The relationship between the legal profession and Government in
delivering legal assistance services and the role of the courts in minimising
the costs of those services.
(7) The equity implications arising from the current tax deductibility
regime for legal expenses, including by the corporate sector.
(8) The implications, if any, for the legal aid system that arise from
the High Court Dietrich decision.
(9) The capacity of the legal aid system, in the proposed funding arrangements,
to provide for separate representation of children where such assistance
is essential in the pursuit of justice.
In keeping with its usual practice, the Committee advertised the reference,
requesting organisations and individuals to lodge submissions to the inquiry.
The Committee has received 171 submissions and several supplementary
submissions, the details of which appear at Appendix
1.
Between September 1996 and March 1997, the Committee held the following
public hearings on the inquiry:
Darwin 23 January 1997
Canberra 29 January 1997
Brisbane 30 January 1997
Melbourne 19 February 1997
Hobart 20 February 1997
Adelaide 7 March 1997
Canberra 11 and 12 March 1997
First report
During the inquiry, the Committee found that submissions and the evidence
of witnesses concentrated to a large extent on Government proposals to
change the funding arrangements for the legal aid system. Considerable
evidence was critical of the proposals, claiming that the Government had
acted in haste and that small initial savings could lead to far greater
economic and social costs.
The evidence on these matters was such that the Committee agreed to present
a report concentrating on these concerns in advance of the 1997-98 Budget.
Accordingly, on 26 March 1997, the Committee tabled a report entitled
Inquiry into the Australian Legal Aid System: First Report.
Combining terms of reference
It should be noted that, on 26 May 1996, the Senate referred to the Committee
a standing reference to enable it to inquire into and report on:
The continued ability of all to have access to legal services and litigation
in Australia.
In its first report on legal aid, tabled in March 1997, the Committee
recommended that the specific terms of reference for the inquiry be combined
with this standing reference to the Committee.
The Committee considered that this would allow it more effectively to
monitor and report to Parliament on the impact of new arrangements in
the legal aid system in Australia generally as well as addressing specific
terms of reference.
Continuation of the inquiry
Following the tabling of its first report, the Committee has held the
following public hearings:
Sydney 2 April 1997
Perth 15 and 16 April 1997
A list of those witnesses who appeared and gave evidence at these hearings
appears at Appendix 2.
Second report
The Committee's second report examines the evidence provided to the Committee
on funding arrangements for legal aid and specific terms of reference.
The report is set out in two parts.
Part One (Chapter 1) reviews evidence received at the further hearings
in Sydney and Perth. It also provides information on appropriations for
legal aid contained in the 1997-98 Budget and the status of negotiations
for legal aid agreements between the Commonwealth and the States and Territories,
due to take effect on 1 July 1997.
Part Two of the report addresses specific terms of reference. Consideration
of these matters is timely, given the Commonwealth's decision to reduce
expenditure and to change arrangements relating to the provision of legal
aid services. These are as follows:
Chapter 2 Responsibilities of the Commonwealth, State and Territory Governments
and the profession in the provision of legal aid (term of reference 2)
The relationship between the legal profession and Government in delivering
legal assistance services ... (first part of term of reference 6)
Chapter 3 International obligations (term of reference 3(a))
Chapter 4 The implications, if any, for the legal aid system that arise
from the High Court Dietrich decision (term of reference 8)
Chapter 5 Separate representation of children where such assistance is
essential in the pursuit of justice (term of reference 9)
Chapter 6 Conclusions
A separate report from the government members of the Committee is also
attached.
Senator Jim McKiernan
Chair
References Committee
June 1997