Legal aid commissions
2.30 Legal aid commissions are established as independent statutory authorities
in each State and Territory. During the course of this inquiry, the Committee
has heard evidence from each of these organisations. They are the major
providers of legal aid in Australia, and it is their future structures
and responsibilities which are being most directly affected by the renegotiation
of legal aid provision arrangements.
2.31 Legal aid commissions provide a range of legal services through
salaried lawyers within the commissions and through referral out to private
practitioners. Most legal aid commissions also use para-legals to provide
legal information and education.
2.32 Commonwealth funding for the State and Territory legal aid commissions
until 30 June 1997 was set out in the agreements with each State
and Territory made in the late 1980s which were described above. The majority
of applicants for legal aid are in receipt of Commonwealth benefits. In
1994-95, 66.9 per cent of applicants nationally were Commonwealth beneficiaries,
and of these 98 per cent were on a social security benefit other than
the aged pension. People who are on low incomes, but who have assets,
are less likely to be approved for legal aid, as assets are considered
in the application of a means test. [23]
2.33 Mr Michael Raper of the Sydney Welfare Rights Centre gave evidence
about the numbers of people who live in poverty in Australia. Mr Raper's
evidence provides a useful context for the statistics provided in the
previous paragraph.
There are 1.8 million Australians in poverty today, at least,
and that includes some 630,000 children. ... Approximately five million
people in all are relying on social security in Australia. [24]
2.34 Mr Don Fleming and Mr Francis Regan provided the Committee with
a national study that they have been preparing for presentation at a conference
later this year. Mr Fleming said that the study showed that legal aid
in Australia is only available "to the lower 18 per cent of the population,
and that trend, I suspect, is continuing". [25]
2.35 Legal aid commissions also provide non-means tested legal assistance
including:
- advice (both face-to-face and telephone advice services);
- advocacy and other litigation services;
- duty lawyer services (immediate advocacy services in local courts);
- mediation services; and,
- community legal education. [26]
Table 2.3: Number of Commission services provided in 1994-95 (per
thousand head of population)
Legal Aid Commission |
Population
(as at 31-12-94)
|
Applications Received |
Applications Approved |
Advice |
Duty Lawyer |
NSW |
6,051,400 |
8.4 |
7.0 |
7.6 |
15.6 |
Vic |
4,476,100 |
10.8 |
8.4 |
8.4 |
7.2 |
Qld |
3,196,900 |
9.1 |
6.4 |
11.4 |
14.2 |
SA |
1,469,800 |
13.2 |
10.4 |
58.1 |
6.1 |
WA |
1,701,900 |
8.0 |
4.7 |
11.4 |
15.7 |
Tas |
472,400 |
17.7 |
14.4 |
19.6 |
5.8 |
ACT |
300,900 |
12.2 |
8.5 |
25.3 |
10.5 |
NT |
171,100 |
9.1 |
7.4 |
25.7 |
13.1 |
Total |
17,840,500 |
9.8 |
7.6 |
13.8 |
12.4 |
Source: Attorney-General's Department, Draft of "Legal Aid in
Australia 1994-95 Statistical Yearbook"
2.36 Legal Aid in Australia 1994-95 Statistical Yearbook, produced by
the Attorney-General's Department, was provided for the Committee's information,
in draft form. It shows that 637,985 people (ie. only 3.6 per cent of
the Australian population) received services through legal aid commissions
in 1994-95. These included 175,028 applications for legal aid and 135,903
approvals for applications: 37,158 applications for legal aid were refused.
While the national approval rate for applications of legal aid was 78
per cent, this varied significantly from 58 per cent in Western Australia
to 83.5 per cent in Victoria. The national approval rate for legal aid
in criminal matters was 88 per cent, for family law was 64.8 per cent
and for civil law was 62.7 per cent.
2.37 The average costs (exclusive of any client contributions or costs
recovered) of cases referred to private practitioners which were finalised
during 1994-95 were $1,353.10 for criminal law cases, $1,775.80 for family
law cases and $3,311.78 for civil law cases. These compare to $1,015.57,
$1,691.71 and $3,488.17 respectively in 1993-94.
2.38 The median costs (exclusive of any client contributions or costs
recovered) of cases referred to private practitioners which were finalised
during 1994-95 were $480.00 for criminal law cases, $814.55 for family
law cases and $700.70 for civil law cases. This compares to $453.67, $780.16
and $1,152.50 respectively in 1993-94.
2.39 The majority of referred cases finalised in 1993-94 cost less than
$1,000 (56,166 cases or 73.4 per cent) with only 1.6 per cent costing
$10,000 or more (all costs exclusive of any client contributions or costs
recovered).
Table 2.4: The Commissions in Profile: 1994-95
. |
. |
Applications |
. |
. |
. |
Advice |
. |
. |
Duty Lawyer |
. |
. |
Received |
Approved |
Approved |
Approved |
. |
. |
. |
. |
. |
. |
. |
. |
In-house |
Referred |
Total |
In-house |
Referred |
Total |
In-house |
Referred |
Total |
NSW |
51,296 |
30,077 |
12,557 |
42,634 |
46,375 |
1 |
46,376 |
42,728 |
51,974 |
94,702 |
Vic |
48,193 |
10,688 |
28,211 |
38,899 |
37,709 |
- |
37,709 |
27,065 |
5,164 |
32,229 |
Qld |
29,023 |
5,828 |
14,719 |
20,547 |
35,817 |
713 |
36,530 |
14,906 |
30,585 |
45,491 |
SA |
19,358 |
5,703 |
9,559 |
15,262 |
85,307 |
54 |
85,361 |
8,723 |
219 |
8,942 |
WA |
13,546 |
2,689 |
5,243 |
7,932 |
13,644 |
5,728 |
19,372 |
16,656 |
10,126 |
26,782 |
Tas |
8,382 |
1,874 |
4,938 |
6,812 |
9,290 |
- |
9,290 |
2,745 |
- |
2,745 |
ACT |
3,671 |
1,302 |
1,255 |
2,557 |
7,140 |
474 |
7,614 |
3,079 |
85 |
3,164 |
NT |
1,559 |
936 |
324 |
1,260 |
3,994 |
408 |
4,402 |
2,118 |
130 |
2,248 |
Total |
175,028 |
59,097 |
76,806 |
135,903 |
239,276 |
7,378 |
246,654 |
118,020 |
98,283 |
216,303 |
Source: Attorney-General's Department, Draft of "Legal Aid in
Australia 1994-95 Statistical Yearbook"
Funding
2.40 Commonwealth funding for the State and Territory legal aid commissions
until 30 June 1997 was set out in the agreements with each State and Territory
made in the late 1980s which were described above.
2.41 Most legal aid commissions undertake some cost-recovery by requiring
an initial contribution from the client when a legal aid grant is made
in the majority of circumstances. Legal aid commissions also recover the
costs of providing assistance in successful cases, wherever possible.
In 1994-95, the income collected by legal aid commissions from contributions
made by clients and recovered costs was $32,134,000 compared with $38,788,545
collected in 1993-94.
Table 2.5: Income and expenditure of legal aid commissions for the
period 1994-95
LAC |
Cth Grant
$
|
State Grant
$
|
Own Income
$
|
Total Income
$
|
Expenditure
Total $
|
NSW |
40,218,726 |
32,547,316 |
11,725,022 |
84,491,064 |
86,397,064 |
Vic |
32,232,165 |
25,500,000 |
14,700,000 |
72,432,165 |
73,800,000 |
Qld |
18,746,332 |
16,698,678 |
6,048,419 |
41,493,429 |
41,030,914 |
SA |
9,868,050 |
6,690,830 |
1,666,391 |
18,225,271 |
17,217,822 |
WA |
11,581,822 |
7,926,306 |
2,799,163 |
22,307,291 |
23,974,649 |
Tas |
4,009,876 |
2,606,502 |
920,827 |
7,537,205 |
6,918,860 |
ACT |
2,464,513 |
1,881,583 |
2,200,882 |
6,566,978 |
6,197,096 |
NT |
2,033,195 |
818,000 |
598,985 |
3,450,180 |
3,539,558 |
Total |
121,154,679 |
94,669,215 |
40,679,689 |
256,503,583 |
259,075,963 |
Source: Submission No. 127A, Attorney-General's Department, p. 2608
2.42 In order to maximise the effect of limited funding legal aid commissions
apply various tests to assess the relative suitability of applicants for
grants of aid. The Attorney-General's Department told the Committee that
legal aid commissions have regard to the following factors in assessing
applications for aid:
- means - an assessment of an applicant's ability to pay for legal services;
- prospects of success - whether the applicant's case has reasonable
prospects of success; and
- legal aid commission guidelines which indicate the sorts of cases
that have been accorded priority for funding. [27]
2.43 Each legal aid commission has its own version of these tests, stemming
from the fact that under an Australian federal system the commissions
are established under their own State or Territory legislation.
2.44 The Commonwealth has stated its intention to continue to pursue
national equity through promotion of a national approach to legal aid
access guidelines. It is encouraging legal aid commissions to apply more
uniform methods for determining eligibility for grants of aid. The Committee
notes that, as new arrangements for legal aid provision are currently
being negotiated, this provides an opportunity to further these important
goals. [28]
Alternative approaches to reduce legal aid costs
2.45 The Committee has received evidence that, as the cost of delivering
legal services increases and available resources decrease, legal aid commissions
have been exploring alternative approaches to service delivery such as
tendering to private legal firms and setting up civil law contingency
schemes. The Committee heard differing views about the likely success,
and appropriateness of these approaches.
2.46 In Queensland, Mr Michael Baumann, Chairperson of the Queensland
Legal Aid Commission, explained that his organisation was the first legal
aid commission to introduce tendering of legal aid services. The organisation
has completed and evaluated a trial tendering project. The evaluation
report is a resource available to all legal aid commissions.
We have had that reviewed recently and I can say that, whilst
there were some difficulties in some geographical areas, we believe
that a number of practitioners have found it to be a useful exercise.
As a trial it was piloted in three areas for 12 months. We are still
assessing all the ramifications of it, but we certainly believe it is
one of the areas that we can continue to develop in certain areas; it
did not work in some, but it worked in others. [29]
2.47 The New South Wales Legal Aid Commission is also exploring the introduction
of tendering, but considers that it will be some months before it is able
to do so. [30] Mr Rob Cornall of Victoria
Legal Aid discussed the approach that his organisation was intending to
introduce this year.
Our view is that, if you have a fixed fee limit per case, there
obviously will be cases where that fee limit could be unfair to the
practitioner. One way to overcome that potential unfairness is to contract
with a practitioner that you will, for example, allocate to him or her
30 matters of a particular type in a year. We would expect that practitioner
to look at their return on that work, not on a case-by-case basis, but
as a delivery of a service in 30 matters for a set or predetermined
fee structure. We think that will start to even out some of the highs
and lows of individual cases. Our general attitude ... is that we are
quite keen about tendering groups of cases. [31]
2.48 Mr Anthony McMahon of the Tasmanian Law Society told the Committee
that he had reservations about tendering and was concerned that legal
service standards should not be dropped and equity and justice compromised
by such processes.
Tendering sounds a good answer from the point of view of limiting
the amount of money. I think the real difficulty facing legal aid is
the quality of service that legal aid recipients receive. What we do
not want to happen in Tasmania, let alone in the country, is to have
two different qualities of legal service: one for those who can afford
their own legal representation and a lesser quality of service for those
who cannot afford legal representation and a grant at legal aid. The
danger with lump sum tendering, where a firm says, We will represent
every person referred to us by the Commonwealth for X thousand dollars
for this next year, is the quality of service that they might
get. It is like an accountant who says, I will liquidate this
company and I'll bring in the liquidation under X thousand dollars.
They make sure that they do not spend any more time on it than necessary.
That is contrary to the whole ethos of the legal profession. I think
tendering should be treated with a lot of care, otherwise we will find
a lot of dangers there. [32]
2.49 The Committee was also given evidence about the value of providing
seeding funds for self-funding initiatives to expand access to civil law
assistance. For example, in Queensland the funds available from the Public
Trustee are used to establish a civil law aid scheme. [33]
In Melbourne, the Hon Jan Wade MP, the Victorian Attorney-General, alerted
the Committee to her intention to establish a Victorian law aid scheme,
which has since been launched.
We are about to set up a law aid scheme. That has been foreshadowed.
We have had a few difficulties getting it up and running. The Victorian
government, in addition to our legal aid funding responsibilities, has
put aside $1.8 million to fund a legal law aid scheme which is similar
to these funds for civil cases that are operating in some of the other
states. [34]
2.50 Mr Peter Semmler of the Australian Plaintiff Lawyers Association
told the Committee his views on alternative means to funding civil law
assistance, particularly in relation to personal injury cases.
Our principal submission is that the community demand is a lot
greater than what is there at the moment by way of assistance, which
is nothing in terms of civil personal injury cases. If I were asked
whether I could run a civil legal aid scheme for personal injury cases
and make it work, my answer would be yes. The way you would do it would
be to have a big take-out of successful plaintiffs' verdicts
a percentage of money to fund the other cases. It is as simple as that.
There are many, many people who have no way of accessing the justice
system. They have catastrophic injuries. They have a meritorious
perhaps difficult, but arguable case, where if they win it, they
get a lot of money. But if they cannot fund it against some multinational
corporation, they have got no chance. They will never have access to
the system; they will never have the chance of getting that money.
... It is like, in a sense, the American system of contingency
fees. Perhaps you could have a 30 per cent take-out or whatever, but
the difference is and contingency fees are not highly regarded
by a lot of people in Australia it is in the public interest
that there be this large deduction from the verdict. By that means,
you could successfully fund civil litigation. You could have a successful
system of legal aid in civil cases which would not cost the taxpayer
a cent. [35]
2.51 Ms Catherine Henry, also of the Australian Plaintiff Lawyers Association,
explained that:
it is really an augmentation of what has, in fact, been occurring
anyway in relation to civil legal aid matters, that is that there is
this 20 per cent rule 20 per cent of the costs go back to the
fund. By developing that notion of a component from the solicitor's
cost being put back into the fund for administration purposes, it becomes
a self-funding body. [36]
Management
2.52 The overall management of each legal aid commission is supervised
by a board of commissioners and the day to day management is undertaken
by a director or chief executive officer. The board comprises: a chairperson;
the director or chief executive officer; nominees of the State/Territory
Attorney General and the Commonwealth Attorney-General. Most Boards also
draw members from the State/Territory bar association and law society
and at least one community representative. The Committee received evidence
that Victorian Legal Aid is set up without legal profession or community
representation on the board. [37] The
Committee also notes that the new entity to be known as Legal Aid Queensland
has a smaller board without community or profession representation. The
Committee has heard that there are differing views about introduction
of smaller boards to manage legal aid entities. The Commonwealth Attorney-General's
Department told the Committee that a number of Commonwealth and State
reviews have highlighted the need to improve the management performance
of legal aid commissions. The Department said it regards the amendments
to the Victorian legal aid legislation as providing a suitable model for
other State and Territory legal aid commissions:
- legal aid commission boards would be much smaller Victorian
Legal Aid now has five board members with an emphasis on the
financial and management skills of board members; and
- a consultative committee would be established - bringing together
a number of organisations which were formerly part of the Commission
- to advise the Board of management on legal aid issues and have some
input into Commission decisions. [38]
2.53 At the Committee's hearings in Melbourne various witnesses commented
on the new management arrangements for Victoria Legal Aid, particularly
expressing their concern that as stakeholders (community legal centres,
the private profession, and groups representing the interests of legal
aid clients), they were no longer in a position to influence directions
or decisions of the organisation.
2.54 Mr John McLoughlin, of the Community and Public Sector Union told
the Committee that "it is a board totally devoid of experience in
the field of legal practice, which comprises 86 per cent of the work of
Victoria Legal Aid - criminal law 63 per cent and family law 23 per
cent". [39] Ms Marianne Noone told
the Committee she was concerned about the broader implications of the
move to a small unrepresentative board in Victoria.
That partnership has been threatened, in particular, by the changes
to the management structures but also in the reduction of funding. That
is a real threat to Australia's unique legal aid system. Australia has
been a leader internationally, I think, in the delivery of legal aid.
That is from my experience, basically, observing systems overseas and
also from the research that I have done. The partnership that existed
was a unique one and it was generally a productive one. It facilitated
innovations, it provided a variety of modes of service delivery and
it also gave the opportunity for the consequences of changes in policy
to be considered as they affected the individuals that are the recipients
of legal aid. Those consequences are no longer considered from that
point of view by these changed management structures. [40]
2.55 The Hon Jan Wade told the Committee why she believed that a smaller
board was necessary:
I asked the Auditor-General to do a performance audit of the
legal aid commission and that showed that there were some quite serious
deficiencies. In order that we could then put into place the most efficient
system, we asked a former senior partner of one of our leading law firms
to do a report on the management and operations of the commission. That
led us to restructuring the commission, which is now called Victoria
Legal Aid, with a much smaller board. There was a restructuring of the
organisation in order that the money can be directed at actually providing
the services as opposed to be being used in administration. [41]
Footnotes
[23] Attorney-General's Department, Draft of
Legal Aid in Australia 1994-95 Statistical Yearbook, p. 61.
[24] Evidence, Mr M Raper, p. 988.
[25] Evidence, Mr D Fleming, p. 230.
[26] Submission No. 127, Attorney-General's
Department, p. 1828.
[27] Submission No. 127, Attorney-General's
Department, p. 1830.
[28] Submission No. 127, Attorney-General's
Department, p. 1811.
[29] Evidence, Mr M Baumann, p. 240.
[30] Evidence, Mr T Murphy, p. 527.
[31] Evidence, Mr R Cornall, p. 433.
[32] Evidence, Mr A McMahon, p. 618.
[33] Evidence, Mr M Baumann, p. 239.
[34] Evidence, The Hon Jan Wade MP,
p. 383.
[35] Evidence, Mr P Semmler, pp. 1060-61.
[36] Evidence, Ms C Henry, p. 1061.
[37] Evidence, Mr D Bunn, p. 478.
[38] Submission No. 127, Attorney-General's
Department, p. 1830.
[39] Evidence, Mr J McLoughlin, p. 475.
[40] Evidence, Ms M Noone, p. 483.
[41] Evidence, The Hon Jan Wade MP,
p. 381.