Chapter 1
Legal aid – an update
First report
1.1 In March 1997, the Committee tabled its first report on the legal
aid system in Australia noting that there is widespread concern with the
Commonwealth's proposal to reduce expenditure for legal aid, as announced
in the 1996-97 budget. The report also noted that there are significant
areas of uncertainty in relation to how the Commonwealth's policy will
be implemented, and the impact that the policy will have. The report also
recorded the intention of the Committee to extend its inquiry to encourage
further debate on the formulation of sound public policy for Australia's
justice system.
1.2 Following the tabling of the report, the Committee held further hearings
in Sydney on 2 April and in Perth on 15-16 April 1997.
1.3 In this chapter, the Committee reviews evidence given at these hearings
and also provides an update on the negotiation of legal aid agreements
between the Commonwealth and the States and Territories, due to take effect
on 1 July 1997.
Further hearings - Sydney and Perth
1.4 Evidence given at the hearings in Sydney and Perth confirmed in the
strongest possible terms the Committee's conclusion in its first report
that there is widespread concern with the Commonwealth's proposal to reduce
expenditure for legal aid.
1.5 Several witnesses in Sydney and Perth registered their concerns about
legal aid funding cuts and the implications for the justice system in
Australia. The following comments are illustrative of some of the evidence
given at these further hearings.
Comments by judges
1.6 The Honourable David Malcolm, AC, Chief Justice of the Supreme Court
of Western Australia, appeared before the Committee at its Perth hearings.
His Honour stated:
What I would like to do is draw on information which I have obtained
from the various heads of jurisdiction in Western Australia ... to give
you an insight into the reaction which they have to a situation in which
there are significant cuts in legal aid in their respective areas. So
far as the Family Court of Western Australia is concerned, which administers
not only the family law of the Commonwealth but that area of jurisdiction
which remains with the states in relation to ex-nuptial property and
children, for example, the Chief Judge of the Family Court informs me
that, if there is to be significantly less funding for matters which
are dealt with in the Family Court of Western Australia:
… there are a few obvious consequences which are:
(a) The trend towards the appearances by unrepresented litigants
will continue, if not increase. That of itself has two consequences,
(i) extra demands on court time as one or both of the parties
are unfamiliar with the conduct of a trial;
(ii) importantly, the risk is ever present that the interests
of any children involved in such proceedings will not be adequately
protected, despite the best efforts of the Judge.
(b) There may be a decrease in funds available for the appointment
of separate representatives of children. Failure to provide for separate
representatives, in my view, would offend against not only particular
Articles of the United Nations Convention of the Rights of the Child,
but also against the spirit of the Convention.
That is the view of Justice Michael Holden, Chief Judge of the
Family Court of Western Australia. [1]
1.7 The Chief Justice of the Western Australia Supreme Court also relayed
the views of Chief Judge Kevin Hammond, Chief Judge of the District Court
of Western Australia. The Chief Judge has expressed the view that, if
there are to be significant cuts in legal aid availability to persons
appearing in the criminal jurisdiction of the District Court, the following
difficulties may arise:
1. This will no doubt result in an increase in criminal trials
being defended by accused in person. This invariably leads to a messy
and unpredictable trial. It is unpredictable, not only in duration,
but also in the turns of events that occur with unrepresented accused
including sometimes strongly supported applications for adjournment.
In my view a lack of representation can cause a trial length to extend
by at least 50 per cent and such trials invariably contain hazards for
the trial Judge in the rulings and directions because there is inadequate
argument. This situation can then result in increased work for the Court
of Criminal Appeal.
2. It appears certain that with further cuts to legal aid and
an extension of the "long trials" policy of the Commission
that there will be an increase in Dietrich
type applications. Dietrich applications
are, by their very nature, extremely demanding upon court time. This
is because most Dietrich applicants
are unrepresented and a determination sometimes requires several appearances
before the Judge. These appearances cannot await the normal listing
procedures because, if they did, the applications would take years to
be dealt with. These applications must be given priority before the
same Judge and on repeated occasions. The general Dietrich
procedures after the initial declaration by the court are out of the
court's control and are extremely disruptive of proper court administration.
At the present moment this Court is battling to contain its criminal
lists for the reasons spelt out in a Position Paper as to the state
of the criminal lists, I prepared at the end of December 1996 . . .
I would add that since completing that Position Paper the number of
outstanding trials, as at the end of January 1997, amounted to 570 and
as at the end of February 1997, amount to 587 ... Quite frankly . . .
the no long trials policy, of the Legal
Aid Commission has caused the administration of this Court great difficulties
up to this point mainly because of the time and judicial resources necessary
to process Dietrich applications and
the delays and uncertainties involved in those cases. If there is not
only an extension of the long trials policy but also a significant tightening
of legal aid availability to persons appearing before this Court, the
effect overall upon the orderly administration of this Court will be
both dramatic and harmful. At the least, we would expect many more time
consuming Dietrich applications with
respect to even shorter trials and the possible result that some accused
may never stand trial. We are battling to hold the line at this time
and a decrease in legal aid available to persons appearing in this Court
will only make matters worse. [2]
1.8 The Chief Justice also advised the Committee of the concerns of the
Chief Stipendiary Magistrate of Western Australia who has indicated:
1. Refusal of aid for persons who elect to have a preliminary
hearing for indictable matters will mean that such hearings will achieve
little purpose ie most defendants will be unable to properly cross-examine
witnesses, raise objections or make submissions. The value of retaining
preliminary hearings must now be questioned.
2. For persons charged with simple offences, or indictable offences
dealt with summarily, who plead `not guilty' it is not clear exactly
which defendants will (in future) be granted legal aid to be represented
at the hearing before a Magistrate. However it is true to say that the
trial of unrepresented defendants always creates difficulties for the
Court. The quality of justice and the fairness of a trial depends on
the ability of individual judicial officers to assist the defendant
as to procedural matters without becoming partisan or giving advice
to the defendant.
3. For simple straightforward matters I do not think these issues
will present much of a problem for magistrates. Without representation,
I anticipate that many defendants who might have pleaded not guilty
with counsel will plead guilty and thus save a great deal of court time.
This will not necessarily result in a denial of justice as the magistrate
will decline to accept a guilty plea where it is equivocal.
4. Delays in hearings are inevitable because unrepresented defendants
frequently appear in court on a trial date without having arranged for
witnesses to attend. Despite all prosecution witnesses being present
it becomes necessary, at times, to grant an adjournment to the defendant.
This is inconvenient to the prosecution witnesses and causes a loss
of valuable court sitting hours.
5. In conclusion, I would say that without legal representation
in Courts of Petty Sessions pressure will be placed on magistrates to
assist defendants on points of procedure and the law, but that the court
hearing times for defended matters will be reduced considerably. Whether
this of itself will result in injustice to defendants is debatable,
but in my opinion it will not have that effect. [3]
1.9 Finally, the Chief Justice commented on the implications of cuts
to legal aid on the Supreme Court of Western Australia. He stated that
“there is great concern that the savings which may be made through
reductions in the availability of legal aid will be very substantially
offset, if not eroded, by the costs involved in the delay and inefficiency
which will occur in the courts”. [4]
According to the Chief Justice “these delays and inefficiencies will
affect not only the costs of the operation of the courts but also the
costs of prosecuting authorities and the police as a result of the necessity
for repeated appearances by accused persons before the courts being brought
up for Dietrich applications or being brought up for other purposes in
connection with the representation of themselves”. [5]
National context
1.10 The Hon Peter Foss, Attorney-General and Minister for Justice, Western
Australia, commented that the legal aid cuts were not good for Australia.
He explained:
We believe that what has happened here as in many of the moves
that have happened with the Commonwealth in other areas is that the
type of cut that they are making is mistaken. It is very seriously mistaken
because the effect of it is not to look at it in a national context
– and I think this state has always tried to see things in a national
context. I am particularly trying to see things in a national context.
We should look to see what is good for Australia – not what is
good for the Commonwealth or what is good for the state – what
is a sensible thing to do for Australia. Any budget cut that is merely
a cost shifting is not a sensible thing for Australia. This particular
budget cut is obviously something that will cause the shortfall of expenditure
to fall on the state, so nothing has been saved from the national budget
at all. [6]
Legal assistance for Aboriginal people
1.11 At the hearings in both Sydney and Perth, the effect of cuts to
legal aid funding on the access to legal assistance of indigenous Australians
was highlighted. For example, Ms Colleen Hayward, representing the Aboriginal
Legal Service of Western Australia, told the Committee:
Aboriginal legal services were never intended to be the sole
legal service provider for Aboriginal people. Aboriginal people must
be able to access legal assistance from providers other than Aboriginal
legal services. Unfortunately, the proposed Commonwealth legal aid cuts
will throw more responsibility onto Aboriginal legal services for the
provision of legal services to Aboriginal people. [7]
Increase in Dietrich applications
1.12 The Hon Chief Justice David Malcolm, AC, Chief Justice of the Supreme
Court of Western Australia told the Committee that he anticipated that
the reduction of legal aid funding to Western Australia would have a growing
impact on the justice system, in that there is likely to be an increase
in Dietrich applications.
It would seem to me that resort to the Dietrich
principle is likely to become much more frequent as a result of the
cutbacks in legal aid, unless there is some compensating source of funding
which is made available to meet the Commonwealth cutbacks. Let me explain
it in this way: the Legal Aid Commission in Western Australia had put
a $20,000 cap on funding of criminal trials. I understand that is being
reduced to $10,000. That is going to mean that any trial which will
last more than a few days is going to become the subject of a Dietrich
application. There are many of those trials, so inevitably there will
be an increase in Dietrich applications.
[8]
Transferring administrative costs
1.13 Ms Carol Bahemia, Director of the Western Australian Legal Aid Commission,
told the Committee that the Commission was introducing cost transfer and
cost recovery measures in order to cope with reduced funding but ongoing
demand. She advised:
The commission has adopted a number of strategies to date to
manage the situation it anticipates being in the next financial year.
We have introduced a $50 fee for successful applications. We will be
introducing interest on amounts owing under contributions from next
financial year. We are going through the process of converting as many
grants of aid in the civil jurisdiction to disbursements-only grants.
So that will mean that we will pick up the disbursements but hope that
the practitioner will keep acting and defer their costs till the end
of the proceedings. [9]
Responsibility for the "Commonwealth person"
1.14 Since the early 1970s, the Commonwealth has provided legal aid to
particular people in the community categorised as Commonwealth persons.
The Committee understands that under new arrangements being introduced,
the Commonwealth will not fund “Commonwealth persons” unless
the matter in question is a Commonwealth one.
1.15 Representatives of the Victorian Branch of the Returned and Services
League, raised an issue with the Committee relating to Commonwealth responsibility
for veterans. Mr Bruce Ruxton provided evidence to the Committee suggesting
that Victoria Legal Aid is already limiting funding available for veterans,
even though the Commonwealth provides funding specifically earmarked for
veteran's matters, as these are Commonwealth law involving Commonwealth
persons. In commenting on this situation Mr Charles Reichman, appearing
with Mr Ruxton said:
We have got a system in Victoria where the Commonwealth has washed
its hands of an area of fundamental Commonwealth responsibility. That
is the issue that is causing a lot of distress to veterans. [10]
Distinction between Commonwealth and State matters
1.16 The Committee received considerable evidence on the Commonwealth
Government's proposal to provide legal aid funding for Commonwealth matters
only.
1.17 Ms Robin Banks of the Disability Discrimination Legal Service in
New South Wales, a community legal centre set up as a result of the Commonwealth
Disability Discrimination Act, which receives 85% of its funding from
the Commonwealth, outlined her views on the practicalities of separating
out Commonwealth and State work, as follows:
[I]f we were forced into a situation where we only dealt with
Commonwealth matters using our funding, something like 40 per cent of
our case work would drop off. I do not know how, professionally, a solicitor
can give advice to a client about their rights under law when there
are two laws that provide those rights – one state and one Commonwealth.
I think it is probably unethical to say that you could only assist under
one of those two laws. [11]
1.18 Mr Martin Sides QC, Public Defenders (NSW) advised the Committee
that the approach of the Commonwealth Government to base legal aid funding
on a distinction between Commonwealth and State laws does not “encourage
efficiency and will only encourage administrative costs”. He elaborated:
The difficulty with the split-up of funds between federal and
state matters, that is matters brought under federal and state legislation,
does have some practical difficulties. There will be cases in which
there have been a federal prosecution involving state officers who have
conducted the investigation. There will be state prosecutions under
state law where the investigations were substantially or primarily undertaken
by federal agencies. An example of that is the case of Udovicic, which
was the first one where their application for stay was put off because
the government provided money for the representation. Frequently investigations
are the subject of joint federal and state efforts and the prosecutions
might be under either federal or state or both laws. There is no way,
in my view, that these sorts of matters can be fitted in an effective
and efficient administration of the funds. If the federal government
is to determine priorities in the funding of legal aid and that that
money is to be administered by the state legal aid commissions, then
the state legal aid commissions would be operating upon two different
procedures: procedures relating to state matters and procedures relating
to Commonwealth matters. [12]
1.19 The Committee notes the concern of several witnesses that the Commonwealth
has not confirmed that domestic violence matters will be considered a
primary Commonwealth responsibility and funded accordingly. In Perth,
Ms Carol Bahemia of the Legal Aid Commission of Western Australia commented
on the distinction between Commonwealth and State matters and its implications
for domestic violence. She said:
The Attorney-General, Mr Foss, gave a number of examples yesterday
of the absurdity of the Commonwealth matter/state matter distinction
and I think the committee has probably heard from almost every submission
that would support that. If I could just simply take the comments that
Mr Foss was making one step further. He was talking about the absurdities
that are thrown up when a person facing domestic violence is in the
Family Court and is being faced with the response, “I am sorry,
that is a state matter; therefore, you won't get funding for it”.
If I could add to that [the] family breakdown situation –
and I am not painting a hypothetical situation; these are our clients
– very often in those situations children will be apprehended as
being at risk also. We have a situation where there is a marital breakdown,
where there is domestic violence, and the Department of Family and Children's
Services step in and apprehend a child as being at risk: that process
of the court determining that particular issue – “Is the child
at risk and should they be placed in care?” – is a state matter.
I hope I pulled that matrix together for you. [13]
1.20 The Hon Peter Foss told the Committee that he considered that the
differentiation between Commonwealth and State matter was impractical
in reality. He pointed out the example of the contrary situation faced
by a woman in a marriage breakdown. She may be able to get assistance
for the divorce but not be able to get assistance to enable her to escape
violence. Mr Foss pointed out that the State has a law to protect the
woman, in line with Commonwealth priorities to protect women from domestic
violence, but she could be denied legal aid to access it. Mr Foss also
stated that he does not accept the logic of the Commonwealth claiming
that a matter was a state matter, when it was a prosecution under state
legislation established on a cooperative basis as a result of a Commonwealth
“uniform legislation” initiative. The Committee notes that a
recent Dietrich stay in Western Australia has occurred in part because
of the Western Australian Government's stand that the matter (a fraud
case under the Corporations Law) is not a state responsibility. Mr Foss
is adamant that he will not provide funding for this case. [14]
1.21 Ms Kate O'Brien of the Western Australian Law Society told the Committee
that she was deeply concerned about the Commonwealth's approach to funding
only Commonwealth matters. She told the Committee that she considers that
it "is the thin edge of the wedge. Who knows, they might cut it out
for crime, or they might cut it out for family law or various categories".
[15]
The effect of reduced funding for legal aid
1.22 Evidence in both Sydney and Perth addressed the effect of the proposed
reduction in funding on access to legal aid services that are already
operating under tight budgetary constraints. For example, Mr Ric Cullen
of the Western Australian Law Society observed that many needy people
are not getting access to justice. He elaborated:
The real worry is that I understand perhaps 50 per cent of the
people who could apply for legal aid do not even bother. There is a
huge amount of unmet demand out there. When you think that countries
in northern Europe cover 70 per cent of the population with legal aid
and we only cover 15 per cent, which is probably going to decline to
12 or 13 per cent. [16]
[Return to Table of Contents]
Footnotes
[1] Evidence, Chief Justice Malcolm,
p. 1204.
[2] Evidence, Chief Justice Malcolm,
p. 1205.
[3] Evidence, Chief Justice Malcolm,
p. 1205.
[4] Evidence, Chief Justice Malcolm,
p. 1206.
[5] Evidence, Chief Justice Malcolm,
p. 1206.
[6] Evidence, Hon Peter Foss, p. 1068.
[7] Evidence, Ms S Hayward, p. 1221.
[8] Evidence, Chief Justice Malcolm,
pp. 1208-9.
[9] Evidence, Legal Aid Commission of
Western Australia p. 1238.
[10] Evidence, Victorian Branch of the
RSL, p. 932.
[11] Evidence, Combined Community Legal
Centres Group, pp. 964-65.
[12] Evidence, Mr Martin Sides QC, p.
980.
[13] Evidence, Legal Aid Commission
of Western Australia, p. 1237.
[14] "Fraud trials off as legal aid cuts
hit", The West Australian, 20 May 1997, p. 1.
[15] Evidence, Law Society of Western
Australia, p. 1108.
[16] Evidence, Law Society of Western
Australia, p. 1105.