The Law Council of Australia welcomes the government’s initiative, with one reservation.
While the title and the bulk of the terms of reference are about access to justice generally, the introductory paragraph refers to “civil dispute resolution”. In principle and in practical research terms, excluding the criminal justice system would make no sense.
The Productivity Commission’s powers probably allow it to do the whole job, but preferably this should be clarified.
This will be the most important inquiry into the justice system since the Henderson report on law and poverty in 1975.
Legal aid is in crisis. The table published recently in these pages showed that in all Australian jurisdictions except NSW (although it too is likely to change), legal aid will no longer be granted to people facing criminal charges in magistrates courts unless the person is likely to go to jail.
Magistrates courts in Victoria alone deal with about 173,000 criminal cases a year, a partial indication of the systematic nationwide injustice resulting from the choking of legal aid funding.
Keep in mind that in order to be eligible for legal aid in the first place, people are subject to stringent means tests. In four states, some people who fall below the Henderson poverty line are excluded by legal aid means tests.
The federal government had a “road to Damascus” moment about equality before the law in the early 1970s. Then attorney-general Lionel Murphy told parliament he would establish an Australian Legal Aid Office and that “the government’s aim is that eventually no person anywhere in Australia should suffer injustice because of the unavailability of legal aid advice or inability to afford the cost of representation in court proceedings”.
Federal government funding for Legal Aid Commissions sat at 55 per cent for the next several decades until cuts imposed by the Howard government in 1997 reduced The effects of those cuts have flowed through to Legal Aid Commission funding ever since. They have led to the tightening of means tests, stricter tests on the merits of legally aided cases, rationing of grants for representation of children in Family Court cases and, more recently, no legal aid for people facing criminal offences in magistrates courts, unless jail is likely.
The Law Council has called on the parties in tomorrow’s federal election to commit to three policy objectives:
Develop a national partnership agreement with the states and territories based on national goals, as distinct from commonwealth or state goals.
Restore funding to legal aid commissions to a 50 per cent (up from 35 per cent) share on a constant per capita basis. In the 2013-14 budget, this would require an additional $76.2 million.
Make the commonwealth increase conditional on the states and territories maintaining their funding levels.
The last two federal budgets have acknowledged the depth of the crisis and made modest but welcome increases in the government’s contribution to Legal Aid Commission funding so that its share now sits at 35 per cent.
Attorney-General Mark Dreyfus has committed to further increases. The opposition spokesman on legal affairs, George Brandis, has acknowledged the problems but said that “the Coalition cannot commit to increase funding for legal aid services, nor can we stipulate a proportion of total legal assistance funding that will be provided by the federal government. The Coalition’s first priority, if elected, will be to secure Australia’s future prosperity by getting the budget back under control.”
The Greens have committed to an increase to the 50 per cent level on a fully costed platform.
Equality before the law is too important an issue to be left at the margins of policymaking. That is why the reference to the Productivity Commission promises so much.
It will bring home to governments and to the electorate the extent of the crisis. Its economic expertise is also welcome.
The Law Council’s research shows that rigorous cost-benefit analysis repays the investment in legal assistance many times over.