Inquiry into the Australian Legal Aid System

Chapter 2

Part two - SPECIFIC TERMS OF REFERENCE

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)

Introduction

2.1 The Committee has received evidence that the roles, responsibilities and contributions of the various legal aid stakeholders have been, and remain, very significant in the evolution of the legal aid system in Australia. In particular the Committee notes that the very significant contribution of the legal profession deserves special recognition.

2.2 Evidence provided to the Committee in relation to terms of Reference 2 and 6 (first part) is examined in this chapter. These terms of reference are:

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.

6. The relationship between the legal profession and Government in delivering legal assistance services.

Historical background

2.3 It is useful, first, to look at the historical background to legal aid in Australia. A number of witnesses have drawn the attention of the Committee to the history of legal aid, as documented in previous reports. [1] A comprehensive outline is provided in the National Legal Aid Advisory Committee Report Legal Aid for the Australian Community, 1990. The Access to Justice Advisory Committee Report Access to Justice: an Action Plan, 1994 and the Commonwealth Government response to it, the Justice Statement, May 1995, set out the most recent developments prior to the 1996 election. This Committee itself has examined legal aid previously as part of its Cost of Justice Inquiry.

2.4 The most significant aspects of the history of legal aid in Australia are that the Commonwealth Government has only taken a major role for the last two and a half decades, and that the profession has had a long-standing commitment to providing voluntary assistance for those in need of legal services. Most legal aid schemes in Australia have their origins in schemes set up by the profession through law societies and bar associations, and generally in cooperation with State governments. Universities, particularly students and lecturers in law faculties, have also played a very significant role in providing free legal services for disadvantaged members of the community. The community legal centre movement (which now has in excess of 150 participating community legal services) grew out of the initiative and enthusiasm of law students and academics.

2.5 Table 2.1 is a timeline which provides an indication of early legal aid developments since the Commonwealth's first statutory involvement in 1903.

Table 2.1: Legal Aid Timeline

Source: compiled by the Committee secretariat from a variety of sources

2.6 Until 1973, Australia had a fragmented legal aid scheme built up in each State, to a greater or lesser degree, alongside the individual State court systems. There was no national legal aid or legal assistance framework, and therefore no consistency in policy or in delivery practice. Similarly the legal professions evolved separately. Although the Australian Constitution does not provide a right to legal representation, the Commonwealth has accepted some responsibility to provide representation in certain discretionary circumstances since the Judiciary Act 1903 and Defence Force Act 1903. [2]

2.7 The Commonwealth Government set up the Australian Legal Aid Office (ALAO) in 1973. The Hon Senator Lionel Murphy, Attorney-General, made the following statement at the time:

The Government has taken action because it believes that one of the basic causes of the inequality of citizens before the laws is the absence of adequate and comprehensive legal aid arrangements throughout Australia ... The ultimate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts. [3]

2.8 As the Commonwealth did not have a specific constitutional power over legal aid, the ALAO only provided assistance to individuals on matters of federal law or to individuals involved in matters of both federal and State law to whom the Australian Government was deemed to have a special responsibility, for example migrants, indigenous people, veterans and recipients of Commonwealth benefits. At that time State-based legal assistance schemes continued to assist other individuals on low incomes who were not eligible for assistance from the ALAO. [4] The ALAO grew rapidly so that by the end of 1974, it employed 95 salaried lawyers in six States. By mid-June 1995 the ALAOs were assisting 10,000 clients per month and referrals to the private profession were costing an estimated $1 million per month.

2.9 Following the election in 1975, the incoming Government undertook a review of legal aid in Australia, particularly with a view to examining the efficiency and costs of the management and administration of legal aid. As the ALAO existed in tandem with separate State-based legal assistance schemes, the problem of duplication of effort became apparent, with the result that, in 1976, the Commonwealth Government recommended the establishment of independent legal aid commissions in each State and Territory to provide coordinated legal assistance to the community. [5] The proposal was for these bodies to be jointly funded by the State, Territory and Commonwealth Governments. By 1987, the ALAO offices, with the exception of Tasmania and the Northern Territory, had been merged with the new legal aid commissions which then took over the responsibilities of the regional ALAO offices and the State government or law society legal aid schemes.

2.10 Between 1987 and 1989, the Commonwealth Government entered into separate legal aid funding agreements with each of the States and Territories. Each agreement set the proportion of the funding to be provided by the Commonwealth and by the particular State or Territory. In the agreements with Queensland, New South Wales, Victoria and the Australian Capital Territory, the Commonwealth's share was set at 55 per cent. The agreements with the other States and the Northern Territory provided for a considerably larger Commonwealth share in the first year that would fall over time to a final level of 60 per cent. The size of the Commonwealth's initial share differed in each of these agreements, as did the number of years allowed to reach the 60 per cent level. [6]

2.11 All the agreements provided for termination on twelve month's notice by either party. They also provided for funding levels to be maintained in real terms at the 1987-88 levels, using an indexing formula based on price and wage levels. The agreements did not, however, provide for the funding levels to alter in response to factors that might alter the demand for legal aid, such as an increase in the number of persons receiving social security benefits. [7]

The role and responsibilities of government

2.12 One point of view put to the Committee suggested that the Commonwealth Government, having the power to levy income taxes, has the primary responsibility for funding legal aid. The Australian Council of Social Service argued that the Commonwealth has this responsibility not only because it has the power to raise taxes, but also because it has "special responsibility for Commonwealth Persons" and for ensuring that there is consistent national access to essential social and public services and responsibility for ensuring compliance with key international treaties governing human rights. [8]

2.13 The Committee was told that although there is no national legislation enshrining the right to legal representation and no national legislation that ensures a right to legal aid for indigent Australians, responsibility has been assumed by the Commonwealth and State and Territory governments. The Dietrich decision of the High Court [9] has determined that some defendants are entitled to representation provided by the state. The directors of legal aid commissions stated in their submission that:

In light of the substantive interpretation that the Court has given to "equality", the achievement of equality before the law undoubtedly necessitates positive measures to ensure that no Australian is denied legal representation by reason only of lack of means, or indeed by State of domicile. [10]

2.14 The National Association of Community Legal Centres considers that "democratic governments are responsible for the provision of a fair and effective application of the law and the efficient administration of the legal system". [11] The Association, along with many other witnesses, believes that for access to justice to be facilitated lack of funds or lack of information must not be barriers.

2.15 The Law Council of Australia's submission explained its view that the obligation is on governments as revenue raisers to ensure that sufficient funding is provided to the justice system, both through access to courts and legal aid, so that the system can operate effectively. Its considers that all members of the community should have access to the resolution of disputes, either between the state and the individual or between members of the community. The Law Council's evidence also stated that if governments maintain the position that the user must pay, then this payment "must be affected significantly by the capacity of the user to meet those costs and the nature of the matter before the court". [12]

2.16 Evidence to the Committee suggests that the Commonwealth has a major role, indeed as the Australian Council of Social Service has stated "primary responsibility", [13] in providing funding for legal aid.

2.17 In a background paper prepared for the Committee by the Attorney-General's Department, the Commonwealth's role in providing funding for legal aid was explained as follows:

The provision of funding for legal aid services represents a Commonwealth commitment to the principle that Australians are entitled to justice, and to assert their legal rights regardless of their financial circumstances. [14]

2.18 The Commonwealth provides this funding via two mechanisms. The Commonwealth provides special purpose payments to the States and Territories specifically for legal aid. This is the funding which will be reduced from 1997-98 (see Chapter 1) and is the funding about which agreements are currently being negotiated.

2.19 The Commonwealth also provides untied general revenue grants to the States and Territories for the administration of justice. The Commonwealth has no right to dictate to the States how they should distribute these funds. However, the States do have the capacity themselves to determine priorities, and it is this right which has seen them tend to neglect legal aid provision in favour of law and order activities such as policing.

2.20 The State and Territory governments have, then, a responsibility to ensure that they allocate resources so as to ensure that they have in place a balanced law and order system. The National Association of Community Legal Centres states in its submission to the inquiry that:

The state and territory governments have substantial responsibilities to maintain the rule of law basic to our democratic society. This level of government has substantial legislative and economic power and a responsibility to maintain the position of their citizens in the broader federation. The almost unfettered legislative power of these parliaments carries a great responsibility to ensure that all their citizens have access to the legal system. [15]

2.21 The Committee was told that while governments have a responsibility to the community to ensure that they have access to legal services, there are different ways that this responsibility can be met. The National Association of Community Legal Centres' submission explains that:

[I]n England and Canada government has chosen to establish a 'Judicare' model of legal aid. That is one where the State funds private lawyers to undertake any matter that falls within the legal aid guidelines. The United States Government meets it legal aid responsibilities almost exclusively through salaried lawyers employed by Public Defenders and Civil Legal Services. In Australia we have established a “mixed” model for the provision of legal aid involving salaried lawyers and paralegals employed by legal aid commissions and community legal centres in conjunction with the private profession. [16]

2.22 While the Commonwealth Government clearly has accepted and taken the lead role nationally in providing funding from the public purse for legal aid, there are three key providers in the legal aid system in Australia: the private profession, the legal aid commissions and the community legal centres. Evidence has shown that there is a great deal of interdependency and cooperation between these, and that there is not a lot of duplication of effort.

2.23 The Commonwealth and the State Governments each provide funding for legal aid commissions and community legal centres. In June 1996, the Commonwealth Attorney-General announced that the basis of Commonwealth funding for legal aid commissions would be changed as of 1 July 1997. The changing arrangements are not publicly known at this stage, but the Committee notes that structures and practices could change in the near future.

2.24 The legal aid approach taken in Australia is frequently referred to as a partnership, and the services provided occur along a continuum which seeks, ideally, to ensure that a full range of legal services is available to meet the varying needs of the community. The Committee was told by several witnesses that this model, as it is until 30 June 1997, has been recognised as very good model internationally and that its main failing is widely acknowledged to be simply a lack of resources. [17]

2.25 Mr Francis Regan of Flinders University told the Committee that there are two different types of legal aid systems. The first is a system in which the state primarily provides for lawyers to represent people in court cases which promotes a citizen dependency on lawyers and the legal system. The second is a system, as has evolved in Australia, which promotes "responsible" citizenship through the provision of a wide range of services, which includes a mix of appropriate dependence on lawyers and a level of citizen independence and self reliance. This latter system includes the range of activities undertaken by community legal centres, legal aid commissions, and other community agencies such as citizens advice bureaus, community justice centres and counselling and mediation agencies.

2.26 Mr Don Fleming, a Canberra-based academic specialising in the study of comparative legal aid, told the Committee:

[W]e have a good legal aid system which other countries look to. Unfortunately, the reasons why they look to it are not very good reasons. The reasons that they look to it are that we have a mean legal aid system and a well-managed legal aid system. So countries like England, which have a system of legal aid over which they have lost control, are looking at the way in which we control and target expenditure to find mechanisms to bring their own spending under control. So I would say yes, it is a good system. People look to it. [18]

2.27 The following tables were provided to the Committee by Mr Francis Regan. They provide comparisons of expenditure on legal aid, proportion of population eligible for legal aid, and number of services provided per head. Mr Regan provided evidence that while the system of legal aid established in Australia promotes "responsible citizenship" for individuals in the community, its effectiveness is limited by the extent of Government expenditure allocated to it. [19] In a supplementary paper prepared for the Committee, he explained that "it is not just a matter of lower legal aid expenditure...we have to be poorer than in most other societies and our case needs to be in a narrower range, to be granted aid". [20]

Table 2.2A: Selected countries' expenditure on legal aid

Table 2.2B: Proportion of population eligible for legal representation in selected countries

Table 2.2C: Number of legal aid services provided in Australia and England and Wales, 1993-94

Source: English data - the 1995-96 Annual report of the Legal Aid Board; ; Australian data - the Legal Aid in Australia 1993-94 Statistical Yearbook, published by Legal Aid and Family Services, Canberra.

Note: Australia's total is made up of: legal advice 185,000; duty solicitor 219,000; legal representation 131,000. England's total is made up of: legal advice 1,678,000; duty solicitor 897,000; legal representation 791,000 (figures rounded).

2.28 Mr Regan also explained to the Committee that the data comparing legal representation and advice services ought to be viewed in the braoder context.

[W]e have a very extensive range of providers and they are unusual by comparison with other countries, and that does not come up in this data. We also provide an extensive range of services which again are not picked up in this data because here we are talking primarily about legal representation and legal advice. [21]

2.29 The Committee heard from Mr Stephen Bourke of the Attorney-General's Department that, because Australia has a problem solving approach to addressing legal problems, looking at the funding specifically for legal aid shows only part of the funding picture, and part of the effect. The Department considers that unless the same things are being compared international comparisons may not be meaningful.

For example, if we took the expenditure pattern in Australia and included in it the money provided under the existing legal aid agreements,funds provided to the community legal centre program, that is, funding by both the Commonwealth and the state government, funding provided by ATSIC to Aboriginal legal services, funding provided for the range of dispute resolution mechanisms outside the courts, such as mediation in the community,we would then get a different figure to the figure that is, I understand, published in those reports of some years ago, which I think was $13 a head. We just simply do not have information on those other countries as to whether those figures include mediation or payments to indigenous legal services. [22]

 

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Footnotes

[1] Submission No. 126, Law Council of Australia, p. 1735.

[2] Legal Aid for the Australian Community, A report by the National Legal Aid Advisory Committee, July 1990, p. 24.

[3] Senate, Hansard, 13 December 1973, p. 2800.

[4] Ministerial Statement, Attorney-General, Senate, Hansard, 13 September 1973, p. 2800.

[5] This culminated in the enactment of the Commonwealth Legal Aid Commission Act 1977.

[6] For example, the agreement with Tasmania provided for the Commonwealth to provide 86 per cent of the joint funding in 1989-90, reducing to 60 per cent in 1994-95: see Access to Justice Advisory Committee, Access to Justice: an Action Plan, Canberra, 1994, p. 230.

[7] Access to Justice Advisory Committee, Access to Justice: an Action Plan, Canberra, 1994, p. 230.

[8] Submission No. 21B, Australian Council of Social Service, p. 2666.

[9] Dietrich v The Queen (1992) 177 CLR 292. For discussion of this case and its impact, see Chapter 4 below.

[10] Submission No. 88, National Legal Aid, p. 1067.

[11] Submission No. 90, National Association of Community Legal Centres, p. 1167.

[12] Submission No. 126, Law Council of Australia p. 1769.

[13] Submission No. 21B, Australian Council of Social Service, p. 2666.

[14] Submission No. 127, Attorney General's Department, p. 1828.

[15] Submission No. 90, National Association of Community Legal Centres, p. 1168.

[16] Submission No. 90, National Association of Community Legal Centres, pp. 1167-68.

[17] See for example, Evidence, National Legal Aid, p. 220; Evidence, Mr D Fleming, p. 230.

[18] Evidence, Mr D Fleming, p. 235.

[19] Evidence, Mr F Regan, p. 706.

[20] Mr F Regan, Australia's 'Mean' Legal Aid: A Comparison of Schemes in Rich Countries, 7 March 1997, p. 5.

[21] Evidence, Mr F Regan, p. 705.

[22] Evidence, Attorney-General's Department, p. 795.