This piece was written for and first appeared in The Herald Sun.
Victoria Legal Aid’s decision to represent Adrian Bayley in his application to appeal his sentence for the horrific murder and rape of Jill Meagher was strongly criticised by victims of crime.
When someone like Bayley is convicted of a serious crime and wants to appeal their sentence, legal aid is not and should not be automatic. But it would be wrong to ban all people convicted of serious crime from getting aid for appeals.
Appeals are the way our criminal justice system fixes mistakes. Only a small percentage of criminal convictions and sentences are appealed. But the right to appeal is an important safeguard that helps ensure both that innocent people aren’t wrongly convicted, and that people who are convicted get punishment that fits their crime.
People generally agree that when someone is accused of a serious crime and faces imprisonment, they should get a lawyer paid for by taxpayers if they are too poor to pay for one themselves.
It’s in everyone’s interest, including victims of crime, that people accused of crimes receive a fair trial that avoids convicting the wrong person.
Where an accused person faces serious charges or has a particular disadvantage like an intellectual disability, a trial normally won’t be fair if the person doesn’t have proper legal representation.
We can’t have a justice system where someone ends up in jail simply because they couldn’t access the legal representation that a wealthier person accused of the same crime could.
Courts have the power, and have recently used it in Victoria, to stop some criminal trials where adequate legal representation isn’t provided. If we don’t provide proper legal aid in these cases, no one will be prosecuted.
Legal aid can also save significant court costs as it makes hearings more efficient than having an unrepresented person arguing their case. It’s also traumatic enough for victims of crime to give evidence in court without having to face the person accused of the crime cross-examining them directly instead of through a lawyer.
When someone is convicted of a serious crime, Victoria Legal Aid will only fund their representation for a sentence appeals where there is a reasonable chance the sentence will be reduced on appeal. Victoria Legal Aid refuses to provide representation in many cases. If an appeal is hopeless, it won’t provide representation.
Victoria Legal Aid decided Bayley’s application for permission to appeal had a reasonable chance of success and represented him. The court rejected his appeal.
Regardless of how unpalatable Bayley’s crimes are, and regardless of whether Victoria Legal Aid made the right or wrong decision on his case, this is how the system should work.
We want an independent statutory agency like Victoria Legal Aid making these decisions, particularly in the heinous, politically sensitive cases.
But Bayley’s case does raise broader issues about who gets legal aid funding.
There is a longstanding imbalance across Australia with the majority of legal aid funding being spent on serious criminal cases — and because most serious crime is committed by men, the majority of aid is spent on men.
It’s right that someone facing jail gets free legal representation if they can’t afford a lawyer. But it’s not right that many other people in serious legal situations can’t.
There are gaping holes in the safety net of legal help for family and civil cases. Community legal centres, Indigenous legal services and others try to fill these gaps but, like legal aid commissions, are overwhelmed with demand.
This means that tenants facing eviction and homelessness, victims of family violence, people struggling with debt, people being underpaid or unfairly sacked at work often can’t access the legal help they need.
This is where we should be asking questions and calling for greater funding from both state and federal governments.
Legal aid is a key part of ensuring people are equal before the law. We need to make sure it is available for all people who need it, not just those charged with serious crimes.
Hugh de Kretser is the executive director of the Human Rights Law Centre. @rightsagenda