Legal aid is a little like emergency medical treatment: we'd prefer not to have to ask for it, but we hope and expect that it's available when we need it. The trouble is that easy access to legal representation regardless of one's financial circumstances (the provision of which is enshrined in Commonwealth and state law) is being steadily eroded by a combination of increased demand for legal advice, the rising real costs of legal representation and the reluctance of governments to meet the shortfall. Indeed, in some circumstances, governments have trimmed their contributions substantially.
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Just how large the gap has become was revealed last December, when the Productivity Commission released the findings of its year-long inquiry into access-to-justice arrangements. It found that just 8 per cent of Australians qualify for legal aid and that, while wealthy Australians have no difficulty hiring lawyers, there is a "missing middle" – average-income earners for whom the law is too costly to access – that is growing. Among other things the report found was that the means tests for eligibility for legal assistance set by the various state and territory legal aid commissions had become "too restrictive" as a result of underfunding. "It is not the case that people are 'too wealthy' to be eligible … but rather they are 'not sufficiently impoverished'," the report's authors wrote.
Just who is to blame for the under-funding is a matter of much conjecture and finger-pointing, though the Commonwealth appears to be the favoured fall guy. The figures certainly appear to support such suspicions: Commonwealth contributions to the legal aid commissions have fallen every year from 1997, and now comprise just one-third of all funding, down from 50 per cent.
In its first budget, the Abbott government cut $15 million from its legal aid budget over the next four years, even though some months before that it had argued that a decision to end support for environmental legal advocacy groups was justified because the funding of legal assistance services ought to "be focused on providing front-line services to disadvantaged people requiring legal help". In any event, the Coalition spared neither Aboriginal and Torres Strait Island legal services, nor the National Family Violence Prevention Legal Services program from its $15 million budget cuts; and for this it has been much condemned, most recently by Australian of the Year Rosie Batty. On Tuesday four community legal centres in the ACT - including Legal Aid ACT - made a plea to the federal government for restoration of funding.
However, the states (which are responsible for funding assistance in respect of the administration of their own laws) also stand accused for their reluctance to increase funding levels in line with demand and inflation. In order to maintain their charter, the various legal aid commissions have trimmed sails accordingly. But their ability to do the needful is impaired when recalcitrant governments refuse to recognise the pressures caused by increased demand and rising legal costs. And it can take just a single case to seriously compromise a legal aid budget, as has occurred here in the ACT. The inquiry which quashed David Eastman's conviction for the murder of AFP assistant commissioner Coin Winchester cost the ACT Legal Aid Commission $2.4 million over the past financial year. The cost to ACT taxpayers of legal representation for Mr Winchester over the years would be at least one order of magnitude greater than that.
Ordinary Australians can take comfort from knowing that whatever the financial constraints placed on legal aid commissions, legal representation will always be provided for those of limited means who faced charges that carry a significant risk of imprisonment, as Mr Eastman was.
Nonetheless, there are many individuals in admittedly lesser, but still difficult legal situations, who find themselves unable to access legal aid (a notable exception being Sydney hostage taker and murderer Man Haron Monis, who somehow secured legal aid to challenge a conviction for sending harassing letters to the families of dead Australian soldiers). And, as various studies have indicated, denying access to legal services gives rise to unresolved problems, many of which can impact on other areas of government spending like healthcare, housing and child protection.
Our courts and the legal system should be within the reach of all Australians, regardless of circumstances, just like healthcare, and governments need to take careful note of what the Productivity Commission has to say about preserving this fundamental right.
