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Restoring access to justice through legal aid

Speeches in Parliament
Penny Wright 5 Dec 2013

Senator WRIGHT (South Australia) (19:11): I rise tonight to tell the story of a woman I will identify as 'Sharon'. Sharon's real name is different and has been changed for this speech as well as media reports to protect her identity for safety reasons. 

Sharon's story highlights the perverse outcomes, the human consequences, that can happen when legal aid funding is inadequate and therefore leads to severe restrictions on eligibility. After Sharon, a professional from Melbourne, left a violent, abusive relationship, her ex-partner applied to the Supreme Court of Victoria for a share in the home she had previously bought and that they had lived in together.

He threatened violence against Sharon and her child and stalked her, using a private investigator. One day she arrived at her home to find him sitting in it. Contact visits occurred at police stations, because of the threat of violence. Because of violent threats, Sharon applied for withdrawal of contact.

She had to represent herself in court and was subject to cross-examination by her abusive ex-partner. Sharon was unrepresented because, although she had previously been granted legal aid, a few weeks before the court appearance her solicitors contacted her to say they were no longer funded to represent her. Victoria Legal Aid had recently decided that no funding would be available for people at family law trials, unless the other party is represented.

As Sharon's ex-partner was not represented, neither was she, even though this meant she had to ask questions of her partner, and he was able to question her directly. Sharon says this was a terrifying experience, which her ex-partner conducted in a way which was quite consistent with his prior domination and abuse.

Sharon has been diagnosed with post-traumatic stress disorder. How did this state of affairs occur? There are two salient issues to consider about this situation: one is the acute shortfall in legal aid funding in the face of increasing demand; and the other is the way in which decisions about eligibility are made by legal aid commissions.

I will deal first with the eligibility requirements of legal aid funding, which are becoming increasingly narrow across Australia. I had the opportunity to look into this issue in more detail in the supplementary Senate estimates hearings last week and I uncovered some disappointing truths. Legal assistance funding, which helps fund legal aid commissions, is agreed between the Commonwealth and the states under a national partnership agreement.

Despite this, I was told the Commonwealth has no way of ensuring that its funding contributions are spent in a way that reflects the objectives of the national partnership agreement. These include general principles that prioritise family law cases which relate to 'fundamental matters necessary for the wellbeing of children and/or people who have experienced, are experiencing or are at risk of experiencing, family violence.'

Apparently, there is no mechanism to require that states determine legal assistance in a way that complies with these principles.

Senior legal practitioners have questioned how legal aid commissions can make such wholesale changes to eligibility instead of reviewing their own efficiency and business practices first. My questioning of the Attorney-General's Department in Senate estimates revealed that the Commonwealth has not provided any support for state legal aid commissions to examine their own efficiency, business practices or whether operations could be improved, as a way of ensuring Commonwealth funds are spent in an optimal way.

These severe restrictions on the number and range of cases that attract legal aid, which we are now seeing in many states in Australia—Queensland and New South Wales are the worst affected, in addition to Victoria—are occurring in the context of a growing demand for legal assistance services.

Legal assistance services are provided by legal aid commissions and community legal centres, and demand is growing at the same time that legal aid funding has been declining. These legal aid commissions and community legal centres around the nation are crucial to filling the gap in the provision of legal services for the most disadvantaged and marginalised in our community; those who need, but cannot afford, access to private legal services.

However, since the Howard government reduced the Commonwealth's proportion of legal aid funding in 1997, it has continued to slip under successive governments. The federal contribution towards legal assistance has fallen from about one-half to one-third of all government funding. The legal aid crisis that we now face is a direct consequence of this.

The Productivity Commission is currently conducting an inquiry into improving access to justice in Australia, and the Australian Greens look forward to the findings, when its inquiry is complete. We also look forward to the federal government's response to the review of the National Partnership Agreement on Legal Assistance Services.

Another topic I looked into during Senate estimates is the $30 million in cuts that the government announced for the Family Court system. The Family Court was unable to speak with any certainty about how this cut would affect service delivery and access to justice, because it did not know what the cuts would entail. This even included a lack of clarity about whether the cuts applied exclusively to the Family Court or within other federal courts. The government has confirmed that this matter will not be considered until the federal budget is determined in 2014. Although the government announced the cuts, with $2 million to be saved this financial year, it appears there will be no clarity on the cuts until May. This is also the case with the government's concurrent announcement that it will strip $42 million from the Indigenous Legal Aid and Policy Reform Program.

The legal assistance sector has been crying out for clarity for too long. However, it is not just certainty that we seek for the legal assistance sector, but also autonomy. The Australian Greens believe the development of policy and advocacy for law reform are vital functions for legal assistance organisations. This complements their casework and advice functions, by allowing systemic issues to be challenged at a more effective level. There is a forceful view that those in receipt of public funding have no business engaging in this sort of activity. But the Greens want to see community legal centres and legal aid commissions resourced to work to their own unique strengths. We believe they should challenge systems and laws which are unfair or invalid and which disproportionately affect disadvantaged Australians.

An environment of limited resources can provide, at first glance, the pretext for a government to narrow down the range of jobs that the legal assistance sector does. However, the Greens stand for empowering the legal assistance sector to conduct law reform and advocacy work. We believe that even from a purely economic point of view, this enables community legal centres and legal aid services to help Australians efficiently. Upholding human rights, defending the rule of law and ensuring our democracy is robust are important and complementary benefits to that efficiency.

Legal aid is not just an issue for traditionally disadvantaged people. In 2013 many Australians with legal problems will experience limited access to justice. The gap between those wealthy enough to effortlessly instruct lawyers and those poor enough to be eligible for legal aid is wide. It is estimated that the average legal cost of bringing a Family Court case is about $6,500. Experts conclude that the private market has failed to deliver affordable legal services for many Australians.

Recent evidence shows that middle-income Australians are being excluded from the court system because of issues affording legal representation and court fees. The Law and Justice Foundation of New South Wales conducted a survey which showed that legal problems are life problems. They can have a severe, negative impact on people's lives. It showed the poorest legal outcomes happened when people were unable to take appropriate action, due to cost, stress or a lack of information.

The evidence shows that, if we do not resource the justice system properly, we all pay for it later. This can take the form of lost productivity, health and mental health costs, or social dysfunction. The Australian Greens want to resource justice properly now, to avoid incalculable costs to society later. We look forward to the Productivity Commission's recommendations about how to restore access to justice. We look forward to the next iteration of the National Partnership on Legal Assistance Services, with obligations by the states, territories and the Commonwealth to effectively facilitate access to justice.

We call for autonomy of advocacy, and certainty of funding, for community legal centres and legal aid commissions. We look forward to a future where those in need, like Sharon, do not find themselves mired in an even deeper systemic crisis. This is because, if legal assistance itself is in a crisis, the very system meant to help people back onto their feet can have the opposite effect.



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