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Issue #1733      June 1, 2016

Legal Aid Matters

Legal aid was set up by the federal government in 1973, recognising 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.

This resulted in the establishment of the Australian Legal Aid Office in 1973, followed by the establishment of the State-based Legal Aid Commissions. These offices provide the majority of free or low-cost legal assistance to those in need. Eventually, other forms of legal services were established with modest government funding, including:

  • Aboriginal and Torres Strait Islander legal services, in recognition of the specific and essential need for culturally appropriate representation for the Community Legal Centres, which provide essential legal advice and referral services, relying heavily on voluntary and pro bono work from private lawyers
  • Family Violence Prevention Legal Services, which provide essential connected legal services to Indigenous victims of family violence.

Legal aid is integral to the proper functioning of the justice system. All people have a right to a fair trial and often this will not be possible if legal aid is unavailable for people charged with offences who could not otherwise afford a lawyer.

It is essential to assist people through a lot of situations, including debt recovery, family separation, cases of personal harassment or abuse, or unfair dismissal.

Legal aid was also designed to help people when they have disputes with companies, or the government itself, both of which tend to have access to expensive and powerful legal teams.

It can also be used for legal advice and counsel, which can resolve legal problems before they get to court and save a lot of hassle and cost.

So if you can’t afford a lawyer you can access legal aid?

In short, probably not.

Every year, one in four Australians will experience a legal problem substantial enough to require a lawyer. In 2014, 2.5 million Australians were living below the poverty line. At current funding levels, however, many people living below the poverty line cannot access legal aid. Fewer than 74,000 legal aid grants were offered in 2014.

So that’s 25 percent of the population with serious legal problems; 10 percent living below the poverty line; 0.3 percent granted legal aid.

It’s not just the restrictive means tests: because of the legal aid funding crisis perpetuated by the federal government’s funding model, legal aid just isn’t available for many types of legal problems.

How did legal aid end up in crisis?

Legal aid funding has steadily deteriorated since a decision made by the then federal Howard government in July 1997.

Back then, the federal government decided it would only directly fund legal aid services for Commonwealth law matters. It coupled this with restrictive Commonwealth guidelines on where Commonwealth funded assistance could be given.

The result: significant reduction in Commonwealth responsibility for national legal aid needs.

In 1997, the Federal Government spent $10.59 per capita on legal aid. Today, we are heading toward $7.50 per capita. The Federal Government has also passed more and more of the burden to the States. It was making 55 per cent of the contribution until 1997, and today it only contributes 35 per cent of funds.

Two decades of declining funding means the number and seniority of legal practitioners prepared to undertake legal aid has also been eroded.

Court cases are remaining unresolved and escalating into much larger and more complex problems.

Can Australia afford to pull legal aid out of crisis?

Actually, Australia can’t afford not to.

Unresolved legal problems are very costly, and people involved tend to report impacts to their physical and mental health, their relationships, and their productivity.

This doesn’t only affect individuals; it damages the economy.

In 2014, the Productivity Commission – the government’s chief economic policy adviser – found that legal aid substantially reduces reliance on other government services and payments, such as social security, public health and social services. So there are enormous savings to taxpayers from investing in legal aid.

Further, in 2009 PricewaterhouseCoopers found that for every $1 spent on legal aid, there was a return on investment of $1.60 to $2.25 in efficiency savings to the justice system.

Governments on three year election cycles ignore these benefits and savings, because they do not believe the public value legal aid at the ballot box.

The federal government spends about $330 million on legal aid annually (0.015% of the gross domestic product).

But consider this: in 2014-15 the federal government spent $730 million on legal services for its own departments and agencies – more than double the amount allocated to legal aid for all of Australia.

And when we hear the government say at every budget that we cannot afford to fund legal aid in a “tight fiscal environment”, consider that since 2009 the federal government increased expenditure on its own legal services by $156 million!

Consider also that Australia spends much less on legal aid than other countries with comparable legal systems. For example, Scotland’s per capita funding for legal aid is 2.9 times more than Australia. England and Wales spend 3.6 times more per capita.

The solution

It’s time to properly fund legal aid and end the crisis.

The next Federal Government needs to:

  • Increase the Commonwealth’s share of legal aid commission funding to 50 per cent with the States and Territories. This would amount to an additional $126m in the 2016 Commonwealth Budget.
  • Provide a further $120 million to cover civil legal assistance, with the States and Territories contributing $80 million, comprising a total of $200 million, as recommended by the Productivity Commission.
  • Immediately reverse further funding cuts to legal assistance services announced in 2014, due to take effect from July 2017.

These include:

  • $12.1 million in cuts to community legal centres (a 30 per cent cut);
  • $4 million in cuts to Aboriginal and Torres Straight Islander Legal Services;
  • All cuts directed at policy and advocacy work conducted by legal assistance bodies, as recommended by the Productivity Commission.

The Turnbull government has committed $30 million to support legal assistance services as part of its National Plan to Reduce Violence Against Women and Their Children; while the Opposition has promised to reverse the cuts to Community Legal Centres. Unfortunately, given the hundreds of millions of dollars in cuts made by successive governments, much more is needed to end the crisis.

Source: Legal Aid Matters campaign

Next article – CPA National School

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