GOVERNMENT SENATORS' REPORT
Legal Aid Inquiry - Report Number 2
Foreword
The Government Senators welcome the opportunity provided by this inquiry
to critically examine and evaluate the legal aid service delivery system
in Australia.
Whilst Government Senators were prepared, albeit reluctantly to provide
unanimity for this inquiry's first report, such support cannot be forthcoming
on this occasion due to the partisan nature and commentary of the Majority
Report, for example paragraph 3.24. [1]
Legal Aid and access to justice issues are, to most within the community,
issues worthy of tempered and considered discussion.
Although the Second Report on the Inquiry into the Legal Aid system is
an interim report, the Government Senators do not agree with all the Majority
Report recommendations, conclusions and commentary, and at this stage,
wish to comment on the direction and scope of the inquiry.
Despite several reports prepared during the administration of the Labor
Government including the National Legal Aid Advisory Committee (NLAAC)
Report Legal Aid for the Australian Community, 1990, The Access
to Justice Advisory Committee Report Access to Justice an Action Plan,
1994, the Commonwealth Government response to it, the Justice Statement,
May 1995, and the Senate Legal and Constitutional Affairs Committee inquiry into
the Cost of Justice, it is obvious that systemic problems arising from
the growing and almost unlimited demand for legal services have not been
addressed.
Historically legal aid funds have been scarce, with the legal aid system
just one of the many areas which has to compete for Government funds.
When the Government took office in March 1996 it inherited a $10.3 billion
deficit necessitating a review of all government expenditure to address
the fiscal crisis. The Attorney General's portfolio could not be immune
from the need to address this fiscal imbalance. Cutting Legal Aid was
never an alternative to finding other savings within the Attorney-General's
portfolio, which were in the event, significant.
The action taken by the Government was consistent with a range of Government
policies, all related to the proper allocation of responsibilities between
the Commonwealth and the States and Territories.
Legal aid is a shared responsibility between the Commonwealth and the
States where the Commonwealth will have until expiry of the legal aid
agreements with the States and Territories on 30 June provided approximately
55% of the total funding. Despite this there had never been an effective
mechanism to ensure that the policies and priorities of the Commonwealth
were adhered to in the provision of legal aid.
New legal aid agreements to give effect to these changes are currently
being negotiated or have recently been concluded between the Commonwealth
and the States, and will ensure a consistent and equitable approach to
legal aid services throughout Australia.
It is therefore an opportune time to examine new proposals for the efficient
and cost effective delivery of legal aid to those who most need it.
What has emerged from the current inquiry so far is that shortages in
funding of the legal aid system cannot be viewed in isolation.
Evidence received by the Committee has established that legal services
receive funding from a variety of sources and are provided through a range
of programmes and initiatives, in addition to funding provided from the
Attorney-General's Department.
The Majority Report has failed to comprehensively identify the entirety
of legal aid services available throughout the community and the sources
of funding for these services.
The range of legal services provided through alternative dispute resolution
mechanisms, counselling, mediation and negotiated settlements are taxpayer
funded with a view to obviating the necessity of accessing legal aid and
the legal system.
These services are vital components of the legal aid system and provide
effective access to justice at more affordable cost to the taxpayer.
The Majority Report fails to acknowledge the place of these programmes
in the legal aid system. Conclusions reached in the Majority Report as
to the total amount of legal aid funding available in the Australian context
is therefore distorted.
Funding for legal aid by way of special purpose payments to the States
and Territories and by way of untied general revenue grants to the States
and Territories for the administration of justice demonstrates the Government's
ongoing commitment to ensuring that Australians who need legal assistance
to access the justice system can receive it.
The Committee has received evidence that some legal aid providers are
examining new and innovative ways to deliver legal services in a more
cost effective way, for example pilot projects where private legal firms
tender for bulk legal aid matters.
The legal aid system is provided at taxpayers expense and it is appropriate
to question the value and effectiveness of legal aid services to provide
access to justice for all of us.
The Government Senators welcome the opportunity for community discussion
on the future direction for legal aid in Australia.
The Government Senators wish to take this opportunity to record our appreciation
to the legal profession for the contribution many make to undertaking
pro bono work, accepting legal aid work at below commercial rates and
providing countless hours of free legal advice in various capacities throughout
the community.
In times when the legal profession is often criticised for self-interest,
many members of the profession have given their time and expertise to
assist the Committee in deliberating the complex issues attendant upon
maintaining an effective and responsive legal aid system.
Comparisons of Expenditure on Legal Aid
The Government Senators do not accept the assertion by Mr Martin Sides
QC that compared to services in other countries Australia comparably spends
a small amount on legal aid .
Mr Sides QC, the Chief Justice of the Family Court and others have estimated
an amount per capita of $13 as the sum available for legal aid in Australia
[2].
However this estimate does not take into account other resources, initiatives
and programmes which augment the provision of legal services.
Were the figures from the Aboriginal Legal Service to be incorporated,
Australia's per capita spending would already increase to $17 [3].
Even so, this figure of $17 does not include the additional resources
made available by State and Territory Governments to Community Legal Centres
and other organisations or the value of pro bono work undertaken by the
legal profession. In addition there are payments made by both the Commonwealth
and State and Territory Governments to community organisations for mediation
and other alternative dispute resolution services. Governments also waive
a host of payable fees for access to the Courts for those unable to afford
them.
It should also be noted that literally thousands of Australians receive
free advice at Family Court registries on how to undertake their own dissolution
of marriage applications. Such legal or para-legal assistance is funded
by the taxpayer, as are public information sessions. Yet the associated
costs do not appear in the "legal aid" budget.
In 1996-97 the Commonwealth Department of Health and Family services
provided the following funding to disability advocacy services which undertake
some legal service functions.
Villamanta Legal Service (Geelong, VIC) $377,826
Intellectual Disability Rights Service (Redfern, NSW) $162,887
Queensland Advocacy Incorporated (Brisbane, QLD) $306,256
Some Community Legal Centres receive funding from the Department of Immigration
and the Department of Industry, Science and Technology. These services
are provided via specialist community legal centres that are members of
the National Association of Community Legal Centres.
Insufficient weight is given to the role of alternative dispute resolution
services as a mechanism to limit the need for more visible or formal resolution
of disputes in the justice system. For example, the Family Services Program
Grants (made through the Attorney-General's Department) which provides
family and relationship counselling, family and child mediation, adolescent
mediation and family therapy services received an estimated 1997-98 budget
allocation of $33.808M, an increase of 10% from the previous year. [4]
Similarly the information provided in table 2.2 of the Majority Report
by Mr Francis Regan cannot be taken at face value for the reasons already
outlined. It is presumptive to compare the number of legal aid services
between two countries (table 2.2C) without being provided with relevant
supplementary material as to the basis upon which the comparison was made,
whether it included legal services from within the legal aid budget or
from some other source and whether due consideration was given to differing
structures and internal systems.
The following exchange highlights these limitations when Mr Regan was
asked.
Question - "Yes, but what
percentage of the UK Budget is spent on supporting mediation groups,
alternative dispute resolution et cetera, compared to Australia's? Do
you not have to take the whole gamut of facilities into account?
Answer: - Ideally, yes. I was not
doing that though. I was simply looking at legal aid expenditure".
[5]
International comparisons like all statistics are informative but do
not necessarily reveal the whole picture.
What constitutes "legal aid" should not be defined narrowly
but by reference to the whole range of services providing legal advice
and assistance throughout the community.
Comments by Judges
The Government Senators acknowledge the contribution made to the Inquiry
by a number of Judges who gave evidence relevant to the practical workings
of the Courts and the anticipated impact of cuts in the availability of
legal aid to litigants appearing before them.
Such comments appear to be predicated on the assumption that notwithstanding
the rearrangement of responsibilities for the provision of legal aid "significantly
less" funding will be available. However, as the relevant legal aid
agreements between the Commonwealth and the States are either still in
the course of being negotiated, or have only recently been concluded,
it would seem somewhat premature to predict dire consequences for the
Courts when the level of funding has not been established and any adverse
impact is a matter of conjecture.
The appearance of members of the judiciary before Parliamentary Committees
is becoming more common.
Whilst the Government Senators accept that there may be Inquiries where
Judges can provide valuable insight into the impact of policy on the workings
of the Courts, in presenting themselves before Committees the members
of the judiciary run the risk of being drawn into political controversy
which may undermine their perceived independence.
For the Chief Judge of the Family Court, Mr Justice Nicholson, to have
labelled an argument as economic rationalist [6]
is gratuitous and unhelpful to the deliberations before the Committee.
Government Senators are eager to see that the fundamental doctrine of
separation of powers be upheld where Judges are able to exercise their
functions in the Courts free from political interference but refrain from
venturing into the political area, commenting publicly on matters where
there are legitimate differences of opinion. Appearance before Parliamentary
Committees providing critiques on Government or Opposition policies may
not be conducive to the well being of this fundamental doctrine.
International Obligations
The Government Senators do not accept that international obligations
arising from treaties to which Australia is a party impose domestic responsibilities
of the kind and scope contended for in the Majority Report.
It is argued that by implication the Commonwealth's domestic responsibilities
for international obligations prevents the Commonwealth from quarantining
funding for Commonwealth legal aid matters only.
There are two approaches to the "international obligation"
arguments.
Firstly, it is asserted by virtue of Australia's ratification, there
is a self-imposed obligation albeit a moral and unenforceable one to abide
by the requirements of a treaty - on this occasion the International Covenant
on Civil and Political Rights (ICCPR).
Secondly, it is asserted a treaty has no domestic consequences until
domestic legislation implements its provision. Whilst the Teoh [7]
decision runs counter to this proposition the Executive Statements by
both the former Labor Government (10/5/95) and the current Government
(25/2/97) have effectively negatived the Teoh proposition.
Moreover the provisions of the Administrative Decisions (Effect of International
Instruments) Bill 1997, if enacted, will give legislative force to the
proposition that the terms of treaties to which Australia is a party will
not create rights or obligations in Australian law in the absence of legislation
intending to give express effect to those obligations.
It should be noted that the ICCPR was signed by Australia on the 18th
day of December 1972. At that time Australia believed it was fulfilling
its obligations under the Covenant. Legal aid grew due to domestic pressure
without reference to the now alleged and newly found "obligation"
under the Convention.
A detailed analysis of the relevant Article is apposite.
Article 14 reads in part:
1 All persons shall be equal before the courts and tribunals.
In the determination of any criminal change against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law.
3(d) ... and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment
by him in any such case if he does not have sufficient means to pay
for it ...
Article 14(1) does not require legal aid funding. This sub-article refers
to the conduct of tribunals, courts and similar bodies - requiring them
to be “fair and public,...competent, independent and impartial...(and)
established by law.”
Article 14(3)(d) however does require legal assistance to be provided
by the taxpayer but only "in the determination of any criminal charge...where
the interests of justice so require...".
Australia has a good record in providing legal assistance in those circumstances.
As a Federation it seems reasonable that the Commonwealth assist those
charged with Commonwealth offences and the States assist those charged
with State offences.
It is noteworthy that Australia deposited a declaration in relation to
the ICCPR specifically related to Australia's federal system.
The declaration dated 6 December 1984 reads as follows:
"Australia has a federal constitutional system in which
legislative, executive and judicial powers are shared or distributed
between the Commonwealth and the constituent States. The implementation
of the treaty throughout Australia will be effected by the Commonwealth,
State and Territory authorities having regard to their respective constitutional
powers and arrangements concerning their exercise".
In these circumstances the Government Senators conclude that only by
the most tortured and unsustainable reasoning could it be claimed that
Australia is precluded from quarantining funding for Commonwealth matters
by reason of domestic responsibility for international obligations.
Implications of the Dietrich Decision
The Majority Report identifies implications for the legal aid system
of the Dietrich [8] decision and flow
on effects.
Although Australian law does not expressly recognise the right of an
indigent accused in serious criminal trials to legal representation at
public expense, for practical purposes it can be assumed that the provision
of legal representation in such circumstances may be a necessary ingredient
of a fair trial.
The Government Senators acknowledge that there may be significant pressures
on legal aid budgets arising out of the Dietrich decision.
There are a number of areas of concern not the least of which is the
potential for the accused in criminal trials obtaining legal assistance
at the expense of meritorious applicants in civil and family law matters.
The situation will need to be carefully monitored so that appropriate
criteria can be developed to deal with competing priorities for legal
aid and to develop other responses to meet the requirements of the Dietrich
decision.
The Dietrich decision may lead to an accused with no defence or an unmeritorious
defence deliberately pleading not guilty in the hope legal aid will be
refused to enable the procurement of a stay of proceedings because of
his inability to obtain legal aid. Taxpayers have a right to be protected
against having to fund unmeritorious defences and to have those guilty
of committing offences dealt with for public security. The full consequences
of Dietrich have not necessarily been thought out, especially its inappropriate
burden to taxpayers. Accordingly its full implications ought to be determined.
In Re K
Much forensic effort has been devoted in the Majority Report to the need
to provide legal aid for the separate representation of children said
to arise following the High Court decision in Re K. The trend in
legal aid approvals for the separate representation of children in Family
law cases has grown exponentially in recent years as shown by the table
in 5.1. The total expenditure of legal aid on separate representation
orders increased from $1,742,484.10 in 1993-94 to $6,806,956.82 in 1995-96
(Table 5.2). There is however evidence to suggest that separate legal
representation orders are levelling off and possibly decreasing as a result
of certain initiatives between the Family Court and Legal Aid Commissions.
The Government Senators recognise that if followed to the letter, the
decision in Re K could mandate an order for separate representation
in virtually all cases involving disputes concerning children in family
law matters. Whilst there are undoubtedly cases such as those involving
allegations of sexual abuse, where the interests of a child are best served
by the appointment of separate representation, the collective experience
of the Government Senators suggests that in most cases parents in disputed
cases are able to adequately agitate relevant issues in relation to their
children without the intervention of another legal representative.
In order to rationalise the availability of legal aid in appropriate
matters requiring appointment of a separate representative, there is merit
in standardising the approach of the Legal Aid Commissions to evaluating
criteria set out in Re K.
Commentary on Recommendations
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.
The Government Senators are of the view that any research as to the
legal professions "motivation" in cooperating with and assisting
in the provision of legal aid would be a waste of resources as it is unambiguously
clear that the motivation is built on the professions commitment to equity
and justice both in the legal sense and in the sense of helping those
who find themselves in unfavourable circumstances. Their motivation is
clearly honourable. Research to determine the "extent and nature"
of the legal profession's subsidy will be difficult. Nevertheless individual
Law Societies ought to be able to survey their members at a low cost and
report their findings. Government cooperation without any extra burden
being placed on the taxpayer may well be appropriate.
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.
Government Senators believe that the genuinely motivated legal profession
does not require a taxpayer funded annual award programme. The recognition
due to the legal profession for its community mindedness would be more
effective if politicians and public commentators have regard to their
valuable contribution. The legal professions involvement in legal aid
is motivated by commitment not desire for recognition.
Individual Legal Aid Commissions or law Societies can of course embark
on such an award programme but we see little merit in a government sponsored
Logies for pro bono work.
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 to provide incentives for sponsor
involvement.
The Government Senators do not oppose the Government giving consideration
to the proposal. However its cost -benefit to the taxpayer would need
to be carefully monitored. Some Legal Aid Commissions have already been
innovative and the recommendation should not be interpreted as "an
implied criticism".
Accordingly the Committee recommends that the Commonwealth should
ensure that the impact of the Dietrich principle on the legal aid system
is monitored so that if necessary, appropriate variations to legal aid
funding can be made in the light of demonstrated impact.
Agreed
The Committee further recommends that the Attorney-General take up
in the Committee of Attorneys-General the need for it to complete its
consideration of the impact of the Dietrich principle as a matter of priority.
Agreed
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, in accordance
with the guidelines set down in the Re K decision.
Agreed, subject to previous comments concerning the need to standardise
the approach to the criteria for separate representation matters.
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.
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.
Agreed
The Committee recommends that the Commonwealth Government, in the
Standing Committee of Attorneys-General, develop national uniform guidelines
to be applied by the legal aid commissions when funding separate representation
matters.
Agreed, although the Government Senators would wish that the development
of guidelines be prepared in cooperation with legal aid service providers.
Footnotes
[1] Senate Legal and Constitutional references
Committee Inquiry into the Australian Legal Aid System Second
Report (The Majority Report). Chapter 3.
[2] The Majority Report Chap 2, Table
2.2A.
[3] The Majority Report Chap 2, Table
2.2A.
[4] Attorney-General's Department, Legal and
Family Services.
[5] Evidence, Mr F Regan, p. 708.
[6] Submission No. 97, Family Court of
Australia, p. 37.
[7] see Majority Report, esp. footnote
13 Chap 3.
[8] Dietrich v The Queen 1992