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Justice for all, or just the rich?

Opinion

Governments of all persuasions have gutted legal aid to the point that most people who need it, can’t get it – and the costs to the community are enormous, argues InDaily’s legal commentator Morry Bailes.

This week the Law Council of Australia and its constituent bodies the state and territory Law Societies and Bar Associations, pulled the trigger on their Legal Aid Matters campaign.

Legal aid is provided to some impecunious members of our community to allow them to be legally represented when they cannot otherwise afford a lawyer. The funding is a combination of Commonwealth and state funding.

It is a myth, however, that anyone who needs a lawyer who cannot afford one will receive legal aid. Legal aid is doled out sparingly as legal aid agencies and commissions can afford to spend only on certain types of matters. The majority of people who would like to qualify for legal aid simply don’t. The statistics show that only 8% of the Australian population will qualify for legal aid, however 14% of Australians live below the poverty line. Of course there are many people above the notional poverty line who could not afford legal services either.

Successive governments, both state and federal, have starved our legal aid system such that it is now down to its bare bones. The erosion has been going on since 1997, when the Commonwealth government altered the funding arrangements with the states, and the crisis is now deep-rooted. This has happened amid increasing awareness of domestic and family violence and soaring and grossly disproportionate rates of Aboriginal and Torres Strait Islander imprisonment.

Recently lawyers in England and Wales took to the streets to protest their own cuts to legal aid, yet England and Wales enjoy double the per capita spend on legal aid compared to Australia.

In Australia the limited amounts devoted by governments to legal aid impacts not only access to services, but recruitment of lawyers and the general quality of representation (this isn’t a reflection on those who do the work but is a result of the workloads that each lawyer is expected to bear). Combined with a general under-resourcing of courts, it is little wonder that our criminal justice systems are groaning and urgent family law matters are simply not being reached or involve unrepresented litigants. Civil litigation is rarely funded, if at all.

The statistics show that many people will need the help of a lawyer for all number of reasons during their lifetimes. Whereas we enjoy universal health care, we have a legal system that favours the rich and disadvantages the poor and not well off. That is really the tragedy. If you are in what the Productivity Commission calls the “missing middle” of Australian legal consumers, you have no chance of receiving legal aid but equally may struggle or be unable to afford legal services.

Just think if we all had to pay out of our own pocket for medical services. There would be uproar and governments would be questioned.  The same argument can be made for legal representation, which ought to be a hallmark of a society that values the rule of law and the basic right to legal representation, not as a nebulous or theoretical concept but as real and accessible.

Why does it matter? The Law Council recently surveyed the Australian public. The results proved interesting. There was a lack of understanding about what legal aid is and does – a misunderstanding alarmingly shared by many of our politicians.

Once they had understood the role of legal aid there was a high rate of concern among those surveyed about the lack of access to legal aid. Indeed there was indignation and fear among many surveyed at the realisation that neither they nor their loved ones would receive any legal help whatsoever if they needed it. So public opinion is clear.

But that is not the end of the story. As the President of the Law Council writing in Monday’s Sydney Morning Herald reminded us, there are also economic considerations. This is what Stuart Clark had to say:

“… perhaps the most infuriating thing about the state of Australia’s legal aid system is not the moral case, but the economic one. The economists at the Productivity Commission – hardly renowned as bleeding hearts – have recommended an immediate $200 million injection into legal aid, because it reduces reliance on other expensive government services, such as social security, public health and social services.

“That the economic case has been ignored represents the failure of successive governments of both stripes. But it also represents a failure of the legal profession. Just as doctors are doing with Medicare, lawyers need to become more vocal about systemic failures they see in their corner of society.”

As to the last point, lawyers have been lobbying governments on legal aid funding to little avail. The best we have achieved is to stave off some cuts but there has been little if any increase. To that end, and taking up Mr Clark’s point, you will see lawyers demonstrating about this subject Australia-wide during this week and in the federal election campaign. It is, it seems, for the legal profession to create awareness in the Australian community about how dire things have got and how foolish it is for governments to ignore the economic cost of cutting legal aid budgets.

Back to the analogy of medicine, everyone realises that funding for proactive health care may be a dollar spent now but many dollars saved later on. So it is with law. The cost to the community of incarceration, the damage to families both personal and economic, the cost to the community of family and domestic violence, the cost of civil and other types of litigation involving unrepresented parties, is enormous. It far outweighs the cost of prudent investment in our legal aid system now As the President of the Victorian Bar, Paul Anastassiou QC, said publicly at a rally in Melbourne on Tuesday, “legal aid costs money, not having legal aid costs more”. It is not only the lawyers saying this, it is our economists. If one is disinclined to listen to the lawyers then at least listen to the economists.

Mr Clark in his article also remarked on the human cost of a lack of legal representation. He referred to a story, symbolic of what in reality is an oft-repeated scenario across Australia, about Ash “an 18-year-old, with no criminal record, who was stopped and searched by police and found to have a quantity of cash and a fishing knife. If Ash came from a wealthy background he would have been able to afford a lawyer to present his explanation effectively in court. But despite the low-income of his family, Ash was not eligible for legal aid”.

“He was forced to represent himself in court, where he was intimidated and flustered. He was found guilty and now has a criminal record that will stay with him for life. Ash is now worried about his options regarding study and employment. Is it really fair that lives like Ash’s are ruined when a richer teenager in a similar situation would likely have avoided charge?”

The symbol of Justice is blindfolded because all people are dealt with impartially and without bias before the law. But how can that be a reality when governments across Australia allow what is really discrimination in favour of those who can afford legal services against those who cannot? It’s time for governments to take off their own blindfolds about the community’s view on this matter. The campaign slogan really does sum it up: legal aid really does matter.

Perhaps highlighting the most important principle of all Mr Clark said, “legal aid…goes straight to the heart of what kind of society we want to be. Do we believe justice is the right of all? Or should it be reserved for those with the money to pay for a lawyer?”

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer 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.

His column appears every second Thursday.

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