More from: legal aid

Legal Aid Matters!

Steven Hynes from Access to Justice and Legal Aid in the UK will be speaking in the Neil Mc Phee Room, Owen Dixon Chambers East. All members welcome.
Tuesday 17 May at 9am – Legal Aid Rally Flyer
Members are encouraged to rally in support of proper funding for legal aid at 9am in the County Court plaza, cnr William and Lonsdale Streets.

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Tuesday 17 May at 6:30pm
Members are invited to hear Steven Hynes speak at the inaugural Cranlana Programme Justice & Society Oration and dinner and address at 6.30pm, Tuesday 17 May 2016 at Cranlana, 62 Clendon Road, Toorak. Cost: $150, including dinner and drinks – click here to register

Further information:, 03 9827 2660

IMPORTANT … Members-only meeting (27 Feb)

Thursday, 27 February 2014 at 5pm
County Court, level 3, Room 3-3

All members are urged to attend this meeting. It will be a ‘ see closed-door ‘ forum for il traing binario che ti consiglia members only . (Refreshments will be provided following the meeting at a venue to be advised on the night.)

During the meeting, the Committee will update members on our response to the VLA Consultation and Options paper entitled ‘Delivering High Quality Criminal Trials’. As members know, the Paper proposes significant changes which would not necessarily include the Bar having an ongoing role of significance. We will be asserting that the Bar is the provider of the best trial representation possible.

Chief Judge Rozenes and other trial judges will attend the meeting and discuss good practice, current standards and how our role in trial advocacy can be maintained and improved.

URGENT – survey of members

Please download the CBA Survey about the VLA trial funding options.

We need your thoughts ASAP. We are drafting our response in conjunction with the Bar Council and time is short before the VLA deadline (early March).  Fill in as many options as you want and save the file and email it to THIS WEEK. If you want to print it out, do so and return it to Fiona at Foley’s List. If you want more information about the consultation process of information about making your own submissions, go to VLA consultation webpage.

Responding to the VLA review

The CBA is working to preserve and advance the status of our members – the Criminal Bar – as the provider of counsel in criminal trials.  We write to update you about current legal aid developments, and to seek your feedback and comments.  We mean to put strong submissions.  They are due in six weeks.

Legal Aid has released its Consultation and options paper, entitled “Delivering High Quality Criminal Trials”.  The paper is publicly available (see post below).

As you will see, many models are on the table.  Matters of interest to our members include the following:

  • Accreditation;
  • Direct briefing (or “solicitor-lite” briefing) of barristers by Legal Aid;
  • Fixed or sliding fees for specific phases of the process, including trial;
  • Augmented preparation fees;
  • Instructing solicitors only “as needed”;
  • Indictable trial panels;
  • Expanding the practice of Legal Aid to include more trial-ready Public defenders;
  • Major trials to be intensely managed (or, per option 34, assigned to Public defenders);

Responses should consider the desirable overall scheme, not merely the attractiveness of individual proposals.  A holistic vision is needed.

We should not take for granted that the Bar is assured an ongoing role of significance, but we should make submissions on the basis that the Bar provides the best trial representation possible.  The Committee believes that there will be major change, and that the Bar will remain relevant by advancing a clear vision of what is needed.  The Committee will do this, and welcomes your input.

Our preliminary view is that we must pursue a model that preserves the trial role of barristers.   The interests of justice and the health of the criminal bar (including its junior members) are favoured by preserving our central role in criminal trials.  We believe that means committing to some form of accreditation and to a willingness to embrace a system involving augmented continuity of counsel.  The CBA, with the Victorian Bar, supports a model incorporating the following:

  • Augmented, targeted CPD seminars;
  • Focussed mentoring/shadowing;
  • Some level of review or assessment (including a mechanism to deal with allegations of impropriety or incompetence).

The Criminal Bar in Victoria is strong, well-trained and respected.  We deliver excellent representation to the parties in criminal litigation, prosecution, defence and others including victims, witnesses and investigating agencies.   It is right that barristers continue to play that role: our shared experience, expertise and collegiate knowledge leave us well-placed.  The community benefits from our expertise, and we also enjoy the benefit of a worthwhile vocation.

The primary challenge we face in 2014 is not to chase better fees, but to ensure we are not replaced by competitors: chiefly, by in-house counsel of various types.  This challenge is not illusory: Magistrate’s Court criminal work has been almost entirely taken by duty lawyers and private solicitors.  Now that legal aid is restricted, competition for legally aided trial work has stiffened.  That competition is sharpened by Legal Aid’s spending priorities.

The challenge is acute for junior barristers.  These colleagues are currently disadvantaged in two ways.  In-house advocates advance their claims for trial work based largely upon the accreditation as specialists they enjoy: currently, the Criminal Bar does not have this.  Secondly, junior barristers are now denied access to the previous hard training-ground of Magistrates court contests.  Both these disadvantages must be faced.

The CBA also wishes to deal with criticisms advanced against barristers, based upon the perceived incompetence or intransigence of a few.  These criticisms are often unfair and opportunistic, but in the absence of some quality-control mechanism, they can be made without rebuttal.  This matter must be addressed, and the mere existence of the ethics committee is patently insufficient.

We welcome suggestions and comments from members. Please send them to Fiona Todd.

No time to lose in tackling the aid funding crisis IN June, the federal government commissioned a Productivity Commission inquiry into access to justice arrangements.

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.

David Neal SC is a Melbourne barrister and a member of the Law Council’s access to justice committee.

Funding drought limits assistance–-music-to-my-ears THE national shortage of legal aid funding means independent legal advice is not being provided to those facing criminal charges in magistrates courts unless they are likely to go to prison or can demonstrate special circumstances.

Research by the Law Council of Australia has found that the only exception is NSW, which has a more generous test that makes legal aid available if prison is “an available penalty”.

In other states, the “special circumstances” provision is normally applied in a way that means the applicant must suffer from a disability that is so serious it precludes self-representation, the Law Council found.

Melbourne silk David Neal SC, who is on the Law Council’s access to justice committee, said the research showed that the idea that all Australians enjoyed equality before the law was “just a lie”.

“A large part of the problem is the withdrawal of the commonwealth from proper funding for legal aid commissions,” Mr Neal said.

But the state governments shared responsibility for the problem because many of them were sending increasing numbers of serious matters to the lower courts and were creating new offences.

He said the federal government currently funded about 35 per cent of the national legal aid bill and this needed to return to at least 50 per cent.

He also believed the national partnership agreement between the commonwealth and the states on legal assistance should set a standard so that anyone facing criminal charges should be provided with legal aid, regardless of whether the offence could result in a prison term.

“A criminal conviction can have life-destroying consequences,” Mr Neal said.

“In Victoria alone, the Magistrates Court deals with 178,000 criminal cases per year, so the vastness of the injustice is reflected in that number.”

Those who were denied legal aid in the magistrates courts because they might not be at risk of prison were confronted by professional prosecutors and there was a clear “inequality of arms”.

Mr Neal said Attorney-General Mark Dreyfus had recognised the importance of legal aid funding and had increased the commonwealth’s contribution.

“But it is still sitting on about 35 per cent and it should be 50 per cent,” he said.

“We want a commitment from both major parties to bring the commonwealth commitment to 50 per cent,” he said.

He urged the Coalition to make a firm commitment – as the Greens have done – that they would return federal funding of legal aid to 50 per cent of the national bill.

Legal Aid Matters

As you may be aware, on Thursday last week the Victorian Bar and the LIV launched a petition on calling on the attorneys (and shadow attorneys) at both Federal and State level to make a commitment to legal aid.

Our ‘Legal Aid Matters’ petition has now reached over 700 signatures in just four days, and we’re hoping to reach at least 5,000 signatures before the Federal Election on September 7.

This is a significant issue for our members with the cuts to funding and the subsequent tightening of Legal Aid guidelines impacting heavily on equal access to justice for thousands of disadvantaged people. 

I urge you to go to the on-line petition and add your voice to the cause:

Click this link to support increased funding for legal aid by signing the petition.

Get further information at:

If you need any further information, please feel free to contact the Sally Bodman at the Bar Office on