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Underfunding is crippling legal aid

Opinion

Chronic underfunding of community legal services is undermining Australia justice system, argues Tim Graham.

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Thousands of South Australians rely on their local community legal centres (CLCs) for essential legal help. In 2015, CLCs provided free and low cost legal help to more than 12,000 South Australians, many of who would be considered ‘too wealthy’ to obtain legal aid. Yet the truth is that over 75 per cent of CLC clients live under the poverty line on incomes less than $26,000 per annum.

CLCs are independent, not-for-profit legal practices. They operate on shoestring budgets to deliver essential services to local communities across South Australia, from Mt Gambier to Adelaide, from Port Pirie to the Riverland. Yet for every client helped by a CLC, underfunding and stretched resources means another client is turned away or cannot get the level of service they need: that client may be a woman fleeing domestic violence, or a tenant facing eviction, an underpaid employee, a ripped-off consumer, or an individual facing court alone. Fourteen thousand South Australian were sent elsewhere by CLCs in 2015.

In the seven years I have worked as a community lawyer, the chronic underfunding of legal assistance services has been documented in every major, independent report into access to justice, including most recently, the 2014 Productivity Commission Enquiry into Access to Justice Arrangements, which recommended an immediate injection of $14.1 million per year into CLCs nationally.

Yet while the economists are calling for investment, Canberra has reached for the scalpel. Under a new national funding model, CLCs face unprecedented funding cuts. In South Australia, one of the states hardest hit, this has led to cuts of almost 10 per cent this year, similar (but as yet unconfirmed) cuts in the coming financial year, and around the corner a funding cliff awaits – an almost 30 per cent funding reduction from July 1 2017.

In total, from a modest $4.7 million in Commonwealth funding in 2014/15, South Australian CLCs must survive on $2.8 million from the 2017/18 financial year.

Unless urgent action is taken to reverse these cuts, drastic reductions in client services are inevitable. Outreach services will be scaled back, impacting on regional and rural communities, community legal education will be cut and innovative collaborations with other agencies will be wound back. Faced with cuts of this magnitude, CLCs will be shedding staff and there is no doubt that some CLCs will close their doors permanently. The Environmental Defenders Office has already lost its entire Commonwealth funding in recent years.

A pledge in recent days by the Federal Government to put money back into domestic violence legal services is welcome but simply inadequate in the face of far larger and broader cuts. It’s a bit like replacing the roof of a house while the foundations are being dug and carted away. More needs to be done and it’s a question of priorities. Underfunding of legal assistance services is undermining our legal system and the rule of law.

Every day at JusticeNet I hear stories of clients that reveal a crumbling system of legal aid and a widening justice gap – stories of ordinary Australians who are forced to represent themselves in the civil courts, often against parties with pockets far deeper than their own. But equally, we see the efforts of lawyers in public and private practise who step up to the plate to volunteer legal help and representation for pro bono clients.

I’m thinking of clients like Margaret, a widow and pensioner in her 70s who used her modest life savings to build a home for retirement. It transpired that this home was unsafe, beset with serious structural problems and breaches of the Building Code. Only with the help of pro bono lawyers referred by JusticeNet was Margaret able to compel the company to honour its legally binding warranties. Margaret could not have managed this difficult and protracted process without the support of her pro bono lawyers. Then there’s the case of Wayne, an unemployed widower struggling to manage basic personal and financial needs due to a medical condition and a lengthy battle with alcohol addiction. Over several years following his wife’s death, Wayne was defrauded of his entire life savings. Ultimately repossession proceedings were commenced as he fell behind on mortgage repayments. Wayne was persuaded that he could remain in his house as a tenant if he sold, eventually doing so at substantially under market value. The purchaser rented the house back to Wayne but then sought to evict him after 12 months, leaving Wayne close to bankrupt and facing homelessness. Wayne’s pro bono lawyers prevented his eviction at the 11th hour and ultimately, after years in and out of courts, Wayne’s pro bono lawyers secured an outcome that gave him some financial security and alternate accommodation.

There is a strong pro bono culture in South Australia. Today almost 600 lawyers and others will be participating in JusticeNet SA’s Walk for Justice, the largest annual gathering of the legal profession. The Walk for Justice raises funds for JusticeNet’s important work. At a time when the civil justice system is suffering serious funding cuts, the legal profession is doing more than simply shouting from the sidelines about flaws in the system. It is actively working to improve access to justice in the civil justice system.

But it’s important to recognise that pro bono is not a replacement for adequately funded legal assistance services. It’s a no-brainer that pro bono alone cannot close the justice gap. So at a time when politicians are asking for our ear, it is time to remind them that legal aid matters.

Tim Graham is executive director of JusticeNet SA and co-chair of the South Australian Council of Community Legal Centres.

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