Legal aid is often discussed, consistently criticised, but not always understood. The public and even politicians demonstrate, on occasion, a startling lack of understanding as to what is funded and why.
Firstly, there is confusion about government funding of community legal centres and legal aid. Community legal centres (CLCs) provide representation for some people, but they do not provide legal aid, which is the preserve of legal aid or legal services commissions.
Then there is the perception that legal aid is all about funding criminal matters. While there is a fair bit of that, it also plays a significant role in funding family law matters – principally relating to child access and custody arguments after a separation. The terminology now used by the courts is a “lives with” and “spends time with” order.
I have also noticed a trend of criticising legal aid grants where the media perceives the defendant in a criminal matter to be undeserving of legal aid. The front-page headline of Perth’s Sunday Times last weekend says it all: “Evil Aid. Your tax helps sicko father”. This was on the back of a three-page spread in Sydney’s Daily Telegraph echoing similar themes.
A few points must be made about this type of commentary. The first is that what governments spend on legal aid is a drop in the ocean of federal and state budgets, and the current spend is not enough. I have commented previously on what the federal Productivity Commission has described as “the missing middle” – those people who are not poor enough to receive legal aid, yet not wealthy enough to afford legal services. We don’t need to add to that problem by reducing the overall legal aid spend or depriving particular applicants of legal aid.
If you regard this as being about what lawyers earn from legal aid, think again. Quite frankly, the hourly rates are so low the majority of lawyers can’t actually afford to run a business on legal aid grants. In its current form, legal aid is woefully inadequate. If you’re after the money, try a career in plumbing instead.
There are practical reasons why we should want accused people to be legally represented. Without legal representation, they will cross-examine a victim in person. That is particularly galling for victims of sexual offences, for example. Imagine an accused rapist cross-examining his alleged victim in person rather than through his barrister.
Legal proceedings are also inevitably prolonged if representation is denied to parties, not only in criminal matters. Judges make it clear that their already groaning lists of cases quickly become unmanageable if parties are self-represented because a judge’s duty is to deliver a fair trial and that requires explanation every step of the way for unrepresented litigants.
It is no exaggeration to say the length of a trial may be doubled or tripled when dealing with unrepresented parties, so the failure to make legal aid available is a false economy, pure and simple.
This is all if a trial commences. The prospect of a trial being stayed or delayed is substantially increased if it involves an unrepresented person and that, in turn, prevents closure for victims.
While we often concentrate discussions about legal aid around the alleged perpetrators of crime, victims, victims’ families and witnesses are all served poorly by the justice system if legal aid is not granted. Staying or delaying trials while representation is sorted out can also adversely affect results because evidence and recollections of and about events can go stale.
There is much truth to the old expression that good justice is quick justice, and while it may seem counter-intuitive, a failure to provide legal aid fails the whole of society.
So while it may pain the Sunday Times, it is better to grant aid to the alleged “sicko father” than deny it. It is better, in the interests of curtailing family and domestic violence, to have lawyers involved in family law disputes.
Legal aid hardly makes lawyers wealthy. At present, it just manages to keep the wheels of justice creaking.
Underpinning this debate is a far more fundamental issue. Rooted at the heart of our democracy is the rule of law. Without an operating legal system we will become a reduced society; the rule of law will stagger and ultimately fail, and injustice will become normalised.
Martin Luther King Jr said:
Injustice anywhere is a threat to justice everywhere.
Ill-informed and reactionary commentary about the value of providing legal aid largely misses the point. It appeals to our baser instincts rather than logic or principle. The provision of legal aid to even the most reprehensible criminal fulfils a basic tenet of our democratic society – to provide a fair trial.
If we wish to be irresponsible or flippant about that duty, consider firstly what former British prime minister William Pitt had to say, and then Adolf Hitler. Pitt: “Where law ends, tyranny begins.” Hitler: “I shall not rest until every German sees it is a shameful thing to be a lawyer.” Need I say more?
Of course, as I have pointed out, legal aid extends to family law in a big way. The notion that family and domestic violence is unconnected to the matters that find their way before the Family Court and, more particularly, the Federal Circuit Court, is silly.
When our Federal Government pledges large sums of money to deal with family and domestic violence, why does the media not remark on the fact that none is earmarked to help the desperately under-resourced Federal Circuit court – the primary trial court for such disputes? Matters in this court can take years before reaching trial.
It is hugely disappointing that some media talk down the benefit of legal aid, as if providing legal representation is somehow a problem. When will newspapers start suggesting that a hospital without doctors is a good idea? A court without lawyers is the same.
Commentators who argue against grants of legal aid or against the increase which is required should grow up. We live in a democratic society which respects the rule of law and which benefits from our criminal and civil justice systems, of which legal representation is an intrinsic part.
The guarantee of legal representation is not a touchy-feely soft liberal notion. It underpins our civic society, as does the rule of law our prosperity. We are a better community for it and should be courageous enough to argue for and not against it.
To our friends at Perth’s Sunday Times and Sydney’s Daily Telegraph, thank you for causing me to get out the iPad to write this article, which is unashamedly and unreservedly in favour of not only our current legal aid system, but any increase that governments might be persuaded to provide.
It is only when injustice prevails that we really understand why a just society is needed. Taking away legal aid would undermine the very goal that, through its tortured reasoning, the media in this instance seeks to achieve: justice for all.
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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