The Australian Law Council has begun 2016 by announcing a national campaign to draw attention to what it believes to be a ‘crisis in legal aid’. The Council specified in a February 2016 Media Release that such a crisis was a direct consequence of funding neglect and indiscriminate cuts by subsequent Federal Governments over many years, which has impacted severely on many Australians, including working families and those unable to muster the finances needed for legal representation.
The numbers validate the criticisms it would seem. Over the last 20 years, successive Federal Governments have cut the Commonwealth’s share of legal aid from 50 per cent to 35 per cent, despite the need for legal aid growing annually. Such cuts have reportedly forced increasing numbers of people to defend themselves in Court, with little to no knowledge of the legal system themselves, facing sometimes well-armed prosecution teams.
The cuts seem particularly unsubstantiated when one considers that they have taken place despite successive government and publicly funded inquiries recommending substantial increases in Federal Government funding, including by the Government’s chief economic policy advisory bodies.
At the heart of this issue is the state of legal representation in Australia, which is a curious one to say the least. Unlike in other jurisdictions (such as the US), there is no legal right to representation in Australia. Parties must either pay a lawyer to represent them, qualify for assistance through organisations such as The Legal Aid Commission, or remain unrepresented and face the legal system by themselves. While we now have the right for representation ‘at our own expense’, there are very few alternatives for those who cannot afford their own legal assistance. Conversely, we also have a corresponding right in Australia to a Fair Trial - one of the core, underlying principles of our legal system. There appears to be an obvious and immediate overlap between the two principles – very rarely can a ‘fair trial’ be conducted when one party lacks the knowledge and experience of a trained, legal professional.
As it currently stands, the Legal Aid Commission does not have the resources or capacity to help all eligible clients or candidates and there exists threshold criteria the organisation must use to filter applicants – namely, an income test to measure suitability. In light of these conflicting rights and increasing demand, funding cuts of the degree and length experienced by the Commission seem at odds with the underlying principle of a ‘fair trial’ for some parties.
Furthermore, the Legal Aid Commission recently enacted changes to the eligibility criteria for clients experiencing employment law difficulties, a key policy change (effective February 1st) that establishes a new ‘social disadvantage’ test, which replaces the far narrower ‘special disadvantage’ test which prevented the Commission from helping some of the most vulnerable employees of employment law disputes. The old test required applicants to have substantial difficulty accessing the legal system by way of psychiatric, physical or intellectual disability. The new ‘social disadvantage’ test will consider factors including:
The applicant’s level of personal disadvantage including the applicants level of education, training and skills or whether the applicant has mental health problems, or an ongoing health condition or disability, or
Whether the applicant is an Aboriginal person, a child or victim of or at risk of domestic violence, and
The level of the applicant’s financial disadvantage (such as no savings or alternative sources of, or access to, funds, or are in debt and have unstable housing).
These changes will no doubt allow the Commission easier access to those most requiring Legal Aid. The key question remains however - what balance is needed between funding and access in order to reconcile the disparity between a fair trial, and no constitutional right to representation. As the Law Council calls for a restoration of funding in the area, it remains to be seen if the Federal Government will change course, or continue the now two-decade journey of financial cuts.