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Adequate legal aid funding an obligation, not an option

Opinion

Legal aid in Australia is in crisis, argues Morry Bailes, and unless the Federal Government is prepared to introduce alternative funding systems like a Medicare-style levy or legal insurance, its contribution must be lifted to sustainable levels in this year's Budget.

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It is August 8, 2013, and Essendon Football Club chairman Paul Little, then-coach James Hird and other club officials are locked in tense discussion. The AFL and ASADA have descended on the club, alleging doping violations. In the recording, which recently surfaced in the media, Little is heard to say the club needed legal advice and then adding that they had “no leverage”, none at all. They were evidently gathered to try to figure out the next step in their defence. They’re talking as though they have nothing to help them against those more powerful than them. Except, Hird is then heard to say: “The Law of Australia.”

But what if you don’t have the law? What if you don’t have the law because you can’t afford to enter a court room with a lawyer?

I have written about legal aid before now, and don’t wish to be repetitious, but it’s federal Budget time in Australia and we have a legal aid crisis.

As an economic rationalist I always want government policy to make economic sense. Of course, I also believe that an inability to access justice is gravely inequitable and that a disenfranchised body politic is destabilising. I think we can all cite a few recent examples where that has been demonstrated.

So here is the case from an economic rationalist who believes in good social order for why properly funding legal aid is not an option for governments – it’s an obligation. In saying that, I am not closed to funding alternatives. Medical care is funded by a levy. Many European countries rely on a model of legal insurance. Regardless, governments must keep state and federal legal aid services going at a viable rate.

The issue is primarily about the funding of legal services commissions and legal aid offices that both do some of the work and farm some of it out to the private profession. A person can ask a private lawyer to do legal work on a legal aid grant.

There is a separate case for community legal centres that operate as de facto legal firms. There is also an abiding concern for what I have described before as “the missing middle”, an expression borrowed from the federal Productivity Commission in its report about access and funding of civil justice handed to federal Parliament a couple of years ago. That is to say, how do we cater for those who can’t afford legal services but don’t qualify for legal aid grants? This is where the case for legal insurance may come into its own, but that is a discussion for another day. Let’s concentrate on legal aid.

We have seen in the past where divided societies can lead. Let’s not go there.

Here are a few salient facts, many of which come from comprehensive research conducted by the Law Council of Australia.

Fact one is that unrepresented people in legal proceedings, or in court, are a nightmare for other lawyers, judges and the courts. They waste time, don’t know what they’re doing and must be nursed through proceedings at quite unnecessary cost to the state or Commonwealth. I have earlier made comparisons to a patient practising their own medicine, or householders doing their own plumbing or electrical works. Just don’t, and don’t try to be a lawyer when you aren’t. Some, however, have no choice.

Fact two is that one in four people in Australia will have a legal problem substantial enough to need a lawyer but legal aid funding has consistently fallen in per capita terms for 20 years. In 1997 it was $11.22 per head of population. Today it is $8. To aggravate things the Federal government in 1997 used to contribute 55% to the burden of funding legal aid. That has now shrunk to 35% loading up the states with the problem. Don’t you just love the federated model?

Fact three is what appeals to the economic rationalist in me: spending on legal aid is economically helpful. That is according to PricewaterhouseCoopers, who in 2009 found that every dollar spent on legal aid gave a return on investment of $1.60 to $2.25. It saves court time, it resolves inefficiencies, it creates jobs, and it pays back as an investment. The federal Productivity Commission reached the same conclusion. It said we needed a minimum $200 million injection into legal aid immediately. The Law Council of Australia reckons $350 million is closer to the mark because we need to at least regain the ground lost since 1997. There is a pressing need for legal advisors in the area of family and domestic violence, which the federal government says it is focused on fixing.

A small piece of advice: given that more often than not family and domestic violence matters involve the law, and thus lawyers, it would be helpful to adequately fund those services or it becomes “all talk, no walk”.

To put some perspective on what might seem like big numbers: the Federal Government alone in 2014-2015 (this excludes states and territories) spent $730 million on its own legal services for its departments and agencies. That is more than double the amount provided for legal aid funding.

Fact four is that while we consider ourselves an affluent and considerate society, our legal spend is seriously out of kilter with similar jurisdictions. Scotland’s per capita funding for legal aid is 2.9 times more than Australia. England and Wales spend 3.6 times more per capita. What society do we wish to become? Because there are some very recent examples of what we might not want to be. From someone who is no bleeding heart take it from me, the rule of law and access to justice is a cornerstone of our success as a nation and to compromise it ultimately compromises everything we have thus far built.

One final point: yes, legal aid funds people accused of crimes, but we are built on a system of justice that presumes a person is innocent until proven guilty, and those accused of crime are entitled to legal representation. But legal aid does so much more than that. Something like 40 per cent of its spend is for family law and that includes countless examples of helping victims of domestic and family violence who otherwise have nowhere to go for legal help. Funding much-needed legal advice to individuals and families affected by domestic violence is a no-brainer. It will prove a great deal less expensive than picking up the pieces when it’s all too late.

Properly funding legal aid is not a silver bullet to an Australian legal system groaning under its own weight, but there is a compelling case for urgent additional money for this sector in this year’s Budget.

As I have said before, there are many lawyers subsisting on legal aid whom would be far better off financially in other legal jobs or occupations. But they are there through their own conviction, doing their bit in “the justice game”. Rather than a call for more money for lawyers, this is a call to maintain the fabric of a truly democratic society. When justice is denied to some, we are no longer the democracy we want to be.

For those that know me they would think it unlikely that I would quote James Hird, but in a sentiment borrowed from the film The Castle, sometimes there is nothing left to rely on but the law. If that is gone for some in our society then we are in perilous waters.

I know there are many demands on the federal Budget, but when a profession almost with one voice says exactly the same thing we ought not be ignored as we have been.

Just like in the provision of health services, it is not okay in a civil democratic society to permit some to fall outside the justice system. We have seen in the past where divided societies can lead. Let’s not go there. Proper legal aid funding is a government obligation.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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