CONCLUSIONS AND RECOMMENDATIONS
The negotiation of new arrangements
The Committee is concerned that the establishment of separate State-based
legal aid agencies has the potential to fragment legal aid services,
thereby potentially compromising the goal of national equity and uniform
access to justice in Australia.
The Committee awaits the details of negotiations and final arrangements
with those States that, to date, have not reached agreement with the
Commonwealth.
The Committee will wish to assure itself that the negotiation process
and arrangements with the States and Territories result in a fair and
equitable system for the provision of legal aid services.
Role and contribution of the profession
The Committee notes that initiatives of governments throughout the
past two decades, in partnership with the profession, the community
and universities, have built up the Australian legal aid system as it
is now known (ie up to 30 June 1997).
The Committee recognises that the goodwill, initiative and commitment
of the profession has significantly contributed to the foundations of
the Australian legal aid system. Further, the Committee considers that
if this fact is overlooked, the stability and effectiveness of the system
may be put at great risk.
The Committee is of the view that the Commonwealth Government has the
primary role in ensuring equity of access and in promoting coordination,
best practice and innovation in legal aid policy and programs. To perform
this role successfully the Commonwealth Government is dependent upon
the combined goodwill and expertise of the profession, legal service
providers, State governments and academics. Accordingly, the Commonwealth
Government should show leadership by engaging these parties to work
alongside it, respecting the extent of expertise which is available
to it.
The Committee notes that, due to the extent of the commitment of stakeholders,
the legal aid dollar buys far more than the budget papers show.
If the Government, in its pursuit of control and cost cutting, alienates
the profession, the functioning (albeit under-resourced) legal aid system
could disintegrate, the profession may withdraw its contribution fully
or in part, the cost of the system will blow out and access to legal
aid will be further reduced.
To maximise the effectiveness of legal aid provision the Government
must recognise and be committed to a partnership approach with the profession,
the community, State and Territory governments and academia.
Recommendation No. 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.
Recommendation No. 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.
Recommendation No. 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 trialing of innovative methods of providing legal
information, advice and education provision by legal aid service 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.
Implications of Dietrich
The Committee notes the evidence suggesting that the impact of the
Dietrich principle will be severe for the budgets of the providers
of legal aid. It also notes that this impact has not yet eventuated,
and may not do so. It appeared to the Committee that precise information
on the impact is not available.
Recommendation No. 4: The Committee recommends that the Commonwealth
should ensure that the impact of the Dietrich principle on the
legal aid system is monitored.
Recommendation No. 5: The Committee further recommends that
the Attorney-General take up in the Standing Committee of Attorneys-General
the need for it to complete its consideration of the impact of the Dietrich
principle as a matter of priority.
Implications of the Re K decision
The Committee is of the view that the provision of separate representation
of children, where the Court determines that this would be in the best
interests of the child, should be a funding priority for the Commonwealth
Government.
The Committee is concerned to ensure that measures, such as reviewing
the decision of the Court or capping grants of aid, which may be introduced
through new funding arrangements, do not result in a denial of adequate
representation for any child whose best interest requires it.
The Committee understands that, while there is a need to manage legal
aid funding efficiently, the bests interests of the child must be the
primary consideration. As final funding arrangements for legal aid have
not been finalised between the Commonwealth and all States and Territories,
the Committee is unable to comment specifically on whether new funding
arrangements for legal aid will have the capacity to provide effectively
for separate representation of children where such assistance is essential
in the pursuit of justice.
The Committee, however, is concerned that if overall funding is reduced,
but funding for separate representation is maintained, other legal aid
services may have to be forgone.
Recommendation No. 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.
The Committee notes evidence from the Attorney-General's Department
that it monitors the nature and extent of separate representing orders
and funding requirements but that the models used to do this are not
“sophisticated”.
Recommendation No. 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.
Recommendation No. 8: The Committee recommends that the Commonwealth
Government develop national uniform guidelines to be applied by the
legal aid commissions when funding separate representation matters.