· 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's
argument
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 government broken promises