If I were Attorney-General, I would set about transforming the disregard that government has for the role of legal aid in a just and equitable society. There’ll be no more funding until there is a fundamental re-assessment of whether and why legal aid matters. Funding to legal aid commissions is in a dire and embarrassing state. It is dire because every day, throughout Australia, the absence of legal information, assistance, advice and representation causes people to be confused, distressed, angry and disadvantaged. It is embarrassing on a number of counts, ranging from the tiny amount of funding to Australia’s failure to meet the expectations of the UN’s 2012 Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.
The Principles define legal aid to include ‘legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses’, as well as ‘legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes’. Even limited to the criminal justice system, as the UN Principles are, that idea of legal aid is a long way from where Australia is or aspires to be.
Because of the High Court decision in Dietrich a lot of legal aid goes into representation in serious criminal trials – so much so that we have the unedifying sight of ACT Legal Aid in court arguing (successfully) to limit the scope of an accused’s trial rights under the ACT Human Rights Act, and Victoria Legal Aid having to justify restrictive funding guidelines that have led to the stay of criminal trials. Apart from crime, the sheer size and pressing nature of the demand in family law means that a lot of money goes into family dispute resolution. That accounts for most legal aid funding, leaving ‘not so serious’ (for whom?) criminal matters largely unfunded, along with credit and debt matters, employment, injuries, tenancy, administrative review and so on.
While the accused in a serious criminal matter faces loss of liberty, unrepresented parties in civil proceedings can face consequences that are no less serious: the loss of their home, job, income, family, property and possessions. The consequent loss of dignity and self-respect, and the adverse effects on physical, emotional and mental health, are a high price to pay for want of legal representation.
Just how much money goes to legal aid commissions? In 2012-13, of a budgeted federal expenditure of $376.3 billion, just $206m was budgeted for the commissions: 0.00055% (55 one-hundred-thousandths of 1%) of the budget. That is less than $9 per person, or about $58 for every person aged between 20 and 64 grossing under $50,000 pa.
Under the current government, the Commonwealth’s proportion of funding to legal aid commissions has not risen above 34.5%. Another 45% comes from the States and Territories, and the rest is from ‘earned income’ and interest on clients’ funds held in statutory and trust accounts.
The inadequacy of legal aid is hidden to an extent by the work of a host of other legal services such as community and indigenous legal services and pro bono legal activity, and mechanisms such as litigation funding and conditional fee arrangements. Each of these has a unique role to play in guaranteeing public access to law, but together they are not part of any coherent, national, strategic response to legal need by the Commonwealth.
The Commonwealth’s ‘Strategic Framework for Access to Justice in the Federal Civil Justice System’ insists that court proceedings can and should be avoided, failing to recognise that, every day, people find themselves having to defend legal claims, or being unable to demand legal entitlements. With the same mind-set, the 2012–2015 Strategic Plan of the Commonwealth Attorney-General’s Department does not refer to court proceedings at all when setting out strategies to ‘Protect people’s rights’. And there is no strategy to promote access to justice itself, only one to ‘promote equity and efficiency’ as a means to improve access to justice. It is simply not possible for a system that faces the demands of legal aid to be ‘equitable and efficient’ on such a mean allocation of funds. At that level of resourcing, legal aid is necessarily and chronically inequitable and inefficient.
All governments have been intractable in resisting significant increases in legal aid funding; political parties see no electoral mileage in enhancing legal aid, and calls for increased funding are easily characterised as coming from the self-interested legal profession. There may be a ‘business case’ for legal aid, a net economic gain from avoiding the adverse social consequences of the loss of liberty, autonomy, homes, jobs, income, family, property and possessions. But sometimes principle, respect and a belief in human rights and dignity compel a policy response. Until and unless governments believe that equality before the law is a substantive right, they will not be ashamed of the negligible budget priority given to legal aid funding.
Simon Rice is a Professor of Law, and Director of Law Reform and Social Justice, at the Australian National University.