National Women's Justice Coalition
Briefing on the legal aid cuts
Prepared: 20 November 1996 ( current: May '97)
The government broken promises
The context
Announcement of the cuts
The impact on the community and on women
The Commonwealth's argument & NWJC response
NWJC position
· The Coalition Government's Law and Justice Policy states that:
" Maintenance of the rule of law is basic to our democratic system. The fundamental tenets of the Liberal and National Parties' approach to law and justice are: * all people should be equal before the law;..*all people regardless of status or financial means should have the ability to access the law; "
"A Liberal and National Government will maintain current levels of legal aid funding as well as funding to community legal centres".
"A Liberal and National Government will match and extend Labor's commitment to access to justice measures".
" The Liberal and National Parties are committed to redressing imbalances which disadvantage women within the legal aid system".
The proposed cut in the Commonwealths legal aid contribution breaches every one of these election promises.
· In July 1996 National Legal Aid released Meeting Tomorrow's Needs With Yesterday's Budgets which stated that the legal aid system in Australia is at 'crisis point' and that the program has been progressively deteriorating. In order to even return the program to the yet inadequate funding levels of 1991/2 an additional $64.9mill. would be required. Per capita expenditure on legal aid in Australia is $13 compared with $65 in England and Wales, $22 in the Netherlands, $18 in Canada and $16 in New Zealand.
· LAC's provide assistance to about 409,000 people pa. There are about 200,000 telephone advice calls, about 219,000 duty lawyer attendances (including 37,000 children), about 185,000 advice interviews and LACs receive about 173,400 applications for legal aid .
· In 1994 the Australian Law Reform Commission released a series of reports on Equality Before the Law. The ALRC noted numerous factors which in combination are producing a failure of justice for women in Australia. Women's access to legal services was high on the list and the ALRC commented on inadequacies in women's access to legal aid.
· Only limited figures on the extent of the assistance provided by LACs to females have been published. In 1993/4 59,500 females applied for legal assistance, just over half of these applications were for family law assistance and just less than half (28,766) were for criminal and civil law assistance. Most criminal and civil law matters arise under State law. In 1993/4 there were about 130,500 grants of legal aid. Grants to females were as follows: 18,700 for family law matters (67% of family law grants), 6,574 for a civil law matters (50% of civil grants) and 15,816 for criminal law matters (17.6% of criminal grants). These figures indicate that a reduction which affects any particular area of law - such as criminal matters, will effect women.
· While historically there has been a significant gender imbalance in favour of males in the making of grants of legal aid, in relation to the total number of people assisted through the various services provided by LACs it is likely that women make up roughly half. Consequently women will be adversely affected by a reduction in the number of grants available and tens of thousands will be affected by a reduction in other services. · Eligibility for case work assistance currently depends on financial eligibility and criteria such as the seriousness of the matter, prospects of success and reasonableness of providing assistance. As a general rule it is irrelevant to LACs - and to the person seeking assistance - whether a matter arises under Commonwealth or State/Territory law. The issue for the person seeking assistance is simply that they have a legal problem.
· Matters arising under state law include:
In terms of matters arising under Commonwealth law - the main call on LAC resources is family law including child support. Other areas of Commonwealth law include:
· In June 1996 the Attorney-General, the Hon Daryl Williams wrote to the State and Territory Attorney's-General, giving notice that the Commonwealth would be terminating the State/Commonwealth legal aid funding agreements on the 30 June 1997. The Attorney-General stated that: "Since coming to office, the Commonwealth Government has become concerned that the existing legal aid Agreement no longer serves the needs of the Commonwealth the Commonwealth now requires an agreement which will ensure an appropriate apportionment of responsibilities between the Commonwealth and [the States]. my main concern is to address shortcomings in the current Agreement. I want to ensure that in future funds provided by the Commonwealth to legal aid commissions are used for matters that arise under Commonwealth law "
· In the August 1996 budget it was announced that: "Commonwealth outlays [on legal aid] . will be reduced by $33.2 million from 1997-98 ". The Forward Estimates indicate that this reduction is to be repeated in 1998/9 and 1999/00. Additionally, there is to be a 4 year claw back, commencing in 1996/7, of $4 mill pa committed to LACs in the former government's Justice Statement. The total reduction will be about $120mill over 4 years.
· The $4mill pa claw back forms part of an additional saving of $67 mill. over 4 years
on funding for various initiatives committed by the previous government in the Justice
Statement.
The impact on the community and on women
The impact of the cuts will be dramatic. As an indication, $33.2mill represents about 16,000 grants of legal aid per year. On this calculation, by the end of the 99/00 financial year about 48,250 people would have missed out.
About 31% of grants overall are made to females. Applying this percentage to the above figures there would be about 5,000 fewer grants of aid to women each year and by the end of 99/00 15,000 females would have missed out.
In fact, what is likely to occur is a reduction in a range of services provided by LACs - including phone and initial advice, duty lawyer assistance, community legal education, and grants of legal aid. It is impossible to predict exactly how many people will be affected and how. The figures over all (and for women) may be many times higher than those indicated above. What is certain is that the cuts will result in less assistance for women and girls particularly, but not necessarily limited to, matters under State/Territory law. State law matters include domestic violence restraining orders, defacto relationship property division, most criminal matters and many civil matters like criminal injuries compensation, tenancy etc. Additionally, many women will be indirectly affected by the impact of the cuts on male family members.
The NWJC is particularly concerned about the impact of the cuts on victims of domestic violence and their children. Over 30,000 women apply for domestic violence restraining orders in Australia each year and about 60% of these women have dependent children . Any reduction in what little legal assistance is available to victims of domestic violence will put the safety of women and children at risk. It is noted that Commonwealth cuts which impact on the availability of legal assistance for victims of domestic violence would run contrary to the thrust of the recommendations of the Commonwealth's recent Domestic Violence Summit.
The Commonwealth argues that it has responsibility for matters under Commonwealth law and the States/Territories have responsibility for matters under their laws. The problems with this argument includes:
(1) The legal aid program is in crisis and a calculation based on existing service levels is fundamentally flawed because it fails to take into account the gross shortfall and other deficiencies in the program.
(2) The Commonwealth has ratified an array of international treaties that impose obligations on signatories to make everyone equal before the law and equal before courts and tribunals . Additionally, the courts have through the development of the common law made the provision of legal assistance to affected parties a pre-requisite in some circumstances to the continuation of a prosecution or to an investigation of serious criminal offences . There can be no equality before the law where a person needs but can not obtain access to legal advice and legal representation. The Commonwealth may be legally obliged, and is at least duty bound, to fulfill its obligations.
(3) Since 1987 the Commonwealth has entered agreements with the States to provide for joint funding of legal aid, usually in the proportions of 55% Commonwealth and 45% State. The only rationale for moving to a 'Commonwealth matters' approach is to shift costs to the States. No argument for the approach has suggested that it is efficient or economical.
(4) The Coalition Government's Law and Justice Policy states in part that: " [the Coalition will] examine ways, in consultation with Legal Aid Commissions, of increasing the extent to which legal aid is granted in civil proceedings, particularly in the family law area ". It is notable that the Commonwealth is not claiming this is an objective or outcome of the cut in its share. If the Commonwealth share is rolled back and if the States/Territories made up the difference, the net result would be no change in the resources available to the program. A shift in who pays doesn't change the nature and level of services provided. The funding agreements enable the Commonwealth to approve legal aid programs and eligibility criteria. If the Commonwealth was intent on targeting, this could occur under the existing funding agreements. Notably, one of the consequences of the reduction in the Commonwealth share, will be a reduction in the Commonwealth's bargaining power and its influence on targeting the overall program.
(5) The Coalition's Law and Justice Policy also states in part that: "[the Coalition is committed to] redressing imbalances which disadvantage women within the legal aid system" and this is linked to the commitment to consult with LAC's about increasing legal aid in civil and family law proceedings. The gender balance in LAC grants is approximately 2/3 of grants to males and 1/3 to females . The Australian Law Reform Commission has canvassed a number of options to increase women's access to legal aid - including re-ordering priorities and increasing resources . The Commonwealth has not sought to link the cuts with its policy of redressing women's disadvantage within the legal aid system - and nor can it.
(6) One of the most dramatic impacts of the Commonwealth's cuts will be on criminal law matters. Males receive about 80% of criminal law grants of legal aid. Reduction in assistance in this area may change the gender distribution of legal aid grants against a backdrop of more women and more men missing out overall. A somewhat larger share for females, of a reduced resource, will be absolutely no consolation to the thousands of women who will miss out and it will be no consolation to the thousands of women who are affected by the impact of the cuts on their male family members.
(7) The Commonwealth has stated that: " if a Government passes a law, it must be prepared to meet the legal aid costs arising in relation to that law ". The NWJC considers that this statement is highly simplistic.
First, there is no necessary corollary between the distribution of legislative powers between the Commonwealth and States/Territories and the distribution of resources between the Commonwealth and the States/Territories.
Second, the Commonwealth can not claim the 'high moral ground' on addressing the legal aid impact of legislation. A prime example is the decision of the Full Court of the Family Court in Re K . This case concerned the circumstances in which separate representation for a child is appropriate under s. 65 of the Family Law Act. The decision dramatically increased the number of requests to LACs for separate representation and cost LACs an estimated $6 mill million in 1995/6. Despite the impact, and the fact that the decision arose under a law of the Commonwealth, the Commonwealth has failed to provide any reimbursement with the result - yet again - restricted service levels to cope. In the longer term there will be less capacity to grant aid to adults in family law matters.
Third, laws are made, and operate, in a complex social, economic, demographic and historical context. Many factors effect the need and demand for legal aid. Examples are: changes in the common law (ie. judge made law), judicial interpretation of legislation, the making or repeal of legislation; economic conditions; changes in the population; crime rates; changes in legal costs; community awareness and community expectations etc.. New laws only have a legal aid impact because some members of the community can't afford, or can't arrange, legal advice or representation. The NWJC argues that the 'who legislates' principle misses the point. The real issue is why is it that many in the community need but can't afford, or arrange, legal assistance? While the introduction, repeal and interpretation of legislation frequently impacts on the demand and need for legal aid, so do government policies and initiatives in relation to numerous other matters including employment, health, education, and families etc.
Fourth, the Commonwealth is not saying that the 'who legislates' principle means that the relevant government is expected to pick up the legal aid impact of all legislation it passes. Instead it appears that the Commonwealth intends to nominate the Commonwealth legislation in relation to which legal aid may be provided with Commonwealth funds.
Fifth, the Commonwealth it is not suggesting that the legal aid impact of nominated Commonwealth legislation will be met on a full legal aid impact basis. There is no guarantee that Commonwealth funding will be adequate even in the limited areas in which it says it accepts responsibility. Additionally, there have been dramatic instances previously of the Commonwealth refusing to acknowledge and pay for the legal aid impact of legislation . In summary, the 'who legislates' principal as a stand alone consideration, can not provide an adequate basis for determining legal aid funding levels or Commonwealth/State legal aid funding shares.
(8) A major practical problem with 'Commonwealth matters' approach is the difficulty of identifying the cost of assistance provided by LACs in 'Commonwealth' and 'State'/'Territory' matters. The States, Territories and the Legal Aid Commissions are strongly refuting the Commonwealth's calculations. Two of the problems are that costs change from year to year and there are difficulties in calculating the cost of matters undertaken by LACs in-house by staff lawyers. Apart from data limitations there are many instances where there are similar remedies available under Commonwealth and State/Territory law and various considerations determine which comes into play. In some instances a legal problem involves a combination of State or Territory and Commonwealth laws. In some instances deficiencies in Commonwealth law result in matters proceeding under State/Territory law and vice versa
(9) The use of a Commonwealth and State 'matters' formula could have a number of other detrimental effects. These include:
· The dismantling of the LACs and the establishment of new bodies to deal with State law legal aid and Commonwealth law legal aid, respectively. This would involve duplication in administrative and infrastructure costs and consequently cause a reduction in service availability .
· Whether split or not, there is a risk of different eligibility criteria for legal aid for State and Commonwealth matters. This runs contrary to strong arguments for equality of access to legal services and national equity in the availability of legal aid made by the Access to Justice Advisory Committee in Access to Justice: An Action Plan (1994) and by the National Legal Aid Advisory Committee in its report Legal Aid for the Australian Community (1990). Further, variations in legal aid criteria for matters under State and Commonwealth law may well result in individuals selecting between State and Commonwealth law options, in relation to a particular legal problem, on the basis of legal aid availability rather than the efficiency or the effectiveness of the proposed legal 'remedy'.
· Additional administrative and costly reporting arrangements to identify, detail and apportion expenditure (including administration costs) in relation to Commonwealth and State matters.
The National Women's Justice Coalition opposes the Commonwealth cuts and calls on the Coalition Government, and particularly on the Prime Minister, to honor the Coalition's election promises.
The NWJC urges the Commonwealth to take the following additional steps in relation to the legal aid program:
· the establishment of the Australian Legal Access Forum, as foreshadowed in the Coalition Law and Justice Policy with the addition of peak consumer representation;
· revision of the Commonwealth's approach to its role in relation to the legal aid program with a view to establishing arrangements for a durable, cooperative and productive partnership between the Commonwealth, States/Territories, Legal Aid Commissions and key stakeholders in relation to the program;
· initiate discussions with the States/Territories, LACs and other stakeholders with a view to rectifying the gross under-resourcing and other deficiencies of the program.
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email:nwjc@ozemail.com.au
National Women's Justice Coalition