Australia’s legal assistance system (Legal Aid, Community Legal Centres and specialised services like Aboriginal Legal Service and Mental Health Law Centre) is in crisis. Justice is being denied to thousands of Australians each year. Successive governments have ripped hundreds of millions of dollars from legal aid, crippling this vital justice safety net.
Legal assistance services are closing down and more cuts are on the way.
The system is now at a point where most Australians who can’t afford a lawyer now simply won’t get one – in many cases even if they are below the poverty line.
Due to the cuts, around 10,000 Australians each year are forced to represent themselves in court. The crisis is ruining lives.
Today, only eight percent qualify for legal aid under the current means test. Can you imagine if Medicare only covered eight percent of the population?
It isn’t just Australia’s most disadvantaged missing out. Most are everyday Australians, people who work hard, are not wealthy and cannot afford to pay for legal representation. They are:
- women trying to escape domestic violence, who can be cross-examined by their abusive partner, without a lawyer to defend them;
- average workers who lose their job and are forced into court to face banks or debt collectors without legal representation;
- small businesses with disputes threatening their livelihoods;
- young men and women facing the prospect of prison, upending their future, without legal representation;
- people living in rural areas;
- people who’ve fallen on hard times.
As it stands, Australia spends much less on legal assistance services than most comparable legal systems. For example, the UK spends double the amount on legal aid per capita.
According to economists, such as the Productivity Commission, funding legal aid properly would actually save the taxpayer money in the long term!
For these reasons an unprecedented national campaign – Legal Aid Matters – was launched in 2016. The campaign presents a $350 million solution to end the crisis in legal assistance.
Law Society President Elizabeth Needham said, “The underfunding of legal assistance bodies continues to significantly affect access to justice for the most disadvantaged members of the community. The result is an increasing number of people in the court system who are being denied access to basic legal representation.”
Click above to see who has already pledged their support. Join Parliamentarians, political candidates, legal practitioners and members of the public, all committed to an adequately funded legal assistance sector.
Legal assistance is in crisis and justice is being denied. Let our politicians know that legal assistance funding matters to you.
Please visit legalaidmatters.org.au to learn how you can help
Together we can reverse the cuts, boost funding and tell our politicians that legal assistance services are vital to our community.
- Law Society calls upon candidates to pledge their support of legal assistance (28 February 2017)
- Law Society joins all Australian Law Societies to call on PM to reverse cuts to legal assistance funding (3 November 2016)
- 45,000 people faces courts alone due to legal aid crisis (16 May 2016)
- Law Week 2016 (16 May 2016)
- $30m family violence commitment puts dent in legal aid crisis (13 May 2016)
- Lawyers to rally over legal aid crisis in election campaign (10 May 2016)
- Budget does nothing to address crisis in legal aid (4 May 2016)
- Law Society calls upon Parliamentarians to tackle legal aid crisis (1 February 2016)
- Law Council opens legal year announcing 2016 legal aid campaign (1 February 2016)
- Latest example of legal aid funding should serve as a wake-up call (21 September 2015)
Case studies: how the legal assistance crisis hurts real people
Real-life examples of injustice caused by cuts to legal assistance funding.
The names and some minor details have been changed to protect the privacy of the individuals concerned.
Sue and Joe separated six years ago and have three children together. The eldest child lives with Joe whilst the younger two children live with Sue. There are existing orders in place, however they are not being followed. Joe applied for a grant of legal aid to discuss issues he has been having contacting and seeing his children. His grant was approved.
Sue also applied for a grant of legal aid but was refused on the grounds of means. Sue is in receipt of Centrelink but had a small amount of money in the bank which meant that she was ineligible. Sue could not afford a solicitor. Both Joe and Sue have mild intellectual disabilities and therefore require assistance from their respective parents. Some of the children also have special needs.
Sue did not want to mediate without a solicitor as she felt she would be at a great disadvantage and didn’t feel she couldn’t negotiate without that support. Sue also wanted to an opportunity to discuss issues she had been having contacting the child still in Joe’s care.
So the mediation could go ahead, Sue’s mother retained a private solicitor for her, although it was very difficult financially for her to do so. With the support of this solicitor Sue did attend the mediation. A full agreement was not reached on the day but Sue and Joe were able to communicate with one another and are trying to come to a consensual agreement with their solicitors.
If Sue did not receive this support, she would not have attended the mediation or have had any discussions with Joe. This would have had long term effects for Sue and Joe’s relationships with their children and for the children’s relationships with one another as the dispute between their parents meant the children were unable to have contact with one another.
In very many cases like this, there is no family member who could afford to retain a private solicitor.
Lucy is represented under a grant of Legal Aid in Family Court proceedings. Lucy has an intellectual disability. During her marriage, her partner inflicted harrowing family violence upon her and the final incident almost took her life. Interim orders permitted the mother to move interstate and the child to have supervised time with the father at a contact centre. The family report recommended that the child only ever have supervised time at a contact centre.
The father has no insight into his violence and is pressing for the child to return to live with him on the basis that Lucy does not have the intellect to properly care for the child. The family report recommendations have meant that the father lost his grant of aid and is now self-represented.
The matter has been repeatedly adjourned at court to allow the father procedural fairness as a self-represented litigant. This meant Lucy had to keep updating trial affidavits and read through the harrowing things that were done to her whereas the father has not filed a thing and the whole process has been dragged on for Lucy.
She is being traumatised repeatedly by the process. Then the case comes to hearing, Lucy will be cross-examined directly by the father. Lucy is scared and those who know her worry how she will cope.
It would be easier if the father was represented and Lucy was cross-examined by counsel. If he had legal representation, the father may also have agreed to the matters proposed in the family report before the hearing.
The courts are looking to the Independent Children’s Lawyer as a quasi- judicial role more and more due to the number of parties who do not qualify for legal aid and do not have the means to instruct a private solicitor, so are self-represented.
The current matter involves a three month old baby, B.
The father recently arrived from overseas, the mother is an Australian citizen. The relationship broke down shortly after the father arrived in Australia.
The mother accused the father of sexually abusing baby B after they separated.
Even though several health professionals assured the mother there was no evidence B had been abused, the mother would not be persuaded and reported the doctors to authorities.
The family report writer clearly raised the issue of the mother’s mental health.
An expert report would have greatly assisted the court.
However the parties could not afford the cost, and no expert would provide a report for the fee that is available under a grant of legal aid.
Therefore, the court is now trying to determine the future of Baby B without the benefit of expert knowledge. The court has to determine if B is at risk if she is placed with her father, or if she is at a greater risk if left with her mother.
Ash had just turned 18 and was in his final year at school, when he was stopped by police and searched on the street. He had no criminal record, but was often stopped and searched by police.
Police found a fishing knife and $2500 in cash.
He was arrested, charged with Goods In Custody suspected of being stolen in relation to the money, and Custody of Knife for the fishing knife. He was released on police bail after a night in custody.
He was advised that he was ineligible for a grant of legal aid as he was not facing jail.
He pleaded guilty to Custody of Knife and pleaded not guilty to the Goods in Custody charge, and was prepared to give evidence that this was his money.
He was not represented at the court hearing. He found this scary, felt intimidated, confused and didn’t know what was happening. He was cross-examined after giving evidence about how he possessed the cash.
He was given a chance to cross-examine the police but didn’t know what to ask. He did not tell the court he had spent a night in custody.
Ash was found guilty of the goods in custody offence and was sentenced straight away to a section 9 good behaviour bond for 6 months with a conviction. He was also fined $220, with a conviction, for possessing the knife.
Ash was very upset and wanted to appeal. He received brief initial advice from a Legal Aid lawyer, but was ineligible for aid on his appeal, and was referred to the Law Society of NSW Pro Bono Scheme, which arranged representation for a reduced fee of $1800.
His appeal was successful – as there were grounds for not recording a conviction that were not aired because he had no representation in the first instance – and he received a section 10 (1)(b) good behaviour bond without conviction in lieu of the s9 bond from the Local Court for the goods in custody charge, and in lieu of the fine with conviction for the custody of a knife.
He is grateful he has no criminal record and has just started his university degree. In most cases, someone like Ash would not have been able to afford a lawyer, even on a reduced fee basis, and would suffer the long lasting effects of criminal convictions.
Alice is a 19-year-old single mother, with a three-year old child, living in regional Victoria. Her relationship with the child’s father was violent and she obtained an intervention order against him. Later, however, Alice decides to reconcile and she seeks to discharge the order.
She is told at her Community Legal Centre that it cannot open files, and she is advised to attend at the local Court. She does, and is given a form to complete that is incomprehensible to her. So she asks a deputy registrar to complete the form for her. She is then told that the Court will arrange for the police to be served.
She is given a document which advises her to attend Court on a particular day when her application will be heard. But Alice cannot read the paper, so she leaves it on the seat and departs.
Alice is relieved that the process has gone so smoothly and she calls her partner and tells him she’s “done it.”
They move in together that afternoon, but two days later, a neighbour who witnessed the previous violence notifies the Department of Health and Human Services that the perpetrator is back living with Alice. The DHHS notify the local police of a clear breach of the intervention order.
Alice’s partner is arrested and charged and bailed with strict conditions. The DHHS apprehend Alice’s three year- old, on the basis that Alice has permitted the perpetrator of violence to come into contact with the child.
Result: criminal charges against the partner, a protection application hearing before the Children’s Court, and an interim accommodation order meaning a three-year-old is without her mum for three weeks.
Mohamed arrived in Australia at age 14, as a refugee from a Middle Eastern Country. He is now 21 and his only family live in Australia.
His father was killed in his home country, causing his mother to flee with him and his siblings. The family has no support left in their home country which is still at war.
Mohamed is currently serving a three-year sentence in custody.
He has been served with a mandatory cancelation of his refugee visa. Legal Aid is not available to assist him to fight the visa cancellation.
A Legal Aid lawyer gave brief initial advice about seeking a revocation of the mandatory cancellation but legal aid is not available to assist him to prepare the revocation submissions and letters of support. The submissions are quite complex. Given that he will have no help in preparing his submissions, it is quite likely that he will fail to address something relevant to the merits.
Although legal aid might be available to appeal if he is unsuccessful in getting the cancellation revoked, if the decision is made by the Minister personally he will not be able to get the decision reviewed on the merits, only on a point of law. In other words, any appeal would only be successful if the Minister happens to make an error of law.
Andrew was born in New Zealand and came to Australia aged 21. He is now 32, married to an Australian, and they have 6 young children.
He received a mandatory visa cancellation notice because he has been convicted of certain offences which led to a jail term of 12 months. Legal Aid is not available to help him fight this unless he fails in his bid to have the cancellation revoked.
However, if the decision is made by the minster personally, aid is available for judicial review of the decision on a point of law only. If the decision is made by a delegate of the minister, aid is available for an appeal on merits of the case to the AAT.
James is a widower living in a retirement village. He has paid for his modest unit through the sale of the home he occupied with his late wife. He subsists on the aged pension.
James is an avid golfer and volunteers at his local club to tend some of the gardens, and mow some of the fairways. He is popular and productive.
One day James is accused by a female committee member of indecently assaulting her, by fondling her breasts at the club premises. She complains to the police, who ultimately take the matter no further, since there is no corroborative evidence of the complaint, and some issue with some of the complainant’s account. But the female makes a formal complaint to the club committee, seeking James’ expulsion from the club.
A disciplinary committee is convened and, after hearing from both, it determines it is satisfied that the acts occurred and James’ is fired from the club committee.
Three weeks later, a member of the disciplinary committee tells James that he really didn’t believe the complainant, but she was on the committee and would have resigned if the decision went against her.
James, who is devastated and humiliated by the outcome, is advised by a friend to seek legal advice as he can “appeal”. He sees a volunteer solicitor at his local Community Legal Centre and is advised he has a right to appeal to the Magistrates’ Court under the relevant associations incorporation legislation.
The CLC does not do casework. He is refused legal aid, as it is a civil matter which does not come under the guidelines.
The golf club has an honorary solicitor, who writes to him, pointing out the numerous flaws in his application and his lack of compliance with the Rules of Court. It threatens an application for costs if the application is not withdrawn.
James is frantic. His health suffers. He does not respond to the club’s solicitor and does not appear when the application is called before the Court. His application is dismissed, and a costs order in favour of the club is made for almost $3,000.
Result: James has been diagnosed with depression, and the issue of his satisfaction of the costs order remains unresolved.
Jessica is a 22-year-old trainee retail worker, who obtained her position after a long period of job-hunting, which her employment counsellor says is largely due to her lack of education. She has attempted certificate courses at her local TAFE, but has not succeeded in completing any of them. She earns slightly more than the unemployment benefit.
At work she is bullied by a permanent co-worker. The coworker taunts Jessica about her boyfriend and her out-of work clothing.
One afternoon, Jessica “cracks” and there is a physical altercation, during which Jessica wrenches the co-worker’s earring, causing a laceration to her earlobe.
Jessica is charged with intentionally causing serious injury, among others. However, the CCTV footage shows a reasonable prospect of a self defence contest.
Jessica applies for and is refused legal aid because there was “no real prospect of immediate imprisonment”. The duty lawyer has a summary case conference with the prosecutor, although neither see the CCTV footage, which is not attached to the brief of evidence. The prosecutor is prepared to accept a plea to a recklessly cause injury.
Jessica now has two choices: offer the plea, and have the matter dealt with by the duty lawyer, or book it in for a ontest mention hearing, when she will have to represent herself. She opts for the hearing.
The duty lawyer assembles some good plea material and a without conviction undertaking (with a condition that Jessica undergo anger management counselling) is the outcome.
Result: Jessica is sacked because, despite the CCTV footage, “you were found guilty in a Court of law”. After eighteen job applications made over several weeks, she secured three interviews. A police check was required for each, and she was questioned about the circumstances of her Undertaking. She remains unemployed.
Ronald is a decorated former volunteer firefighter who suffers from PTSD following the unsuccessful attempted rescue of two victims of a housefire. He has been unemployed for almost a year.
His marriage broke down and he is accused by his estranged wife of stalking by the sending 760 text messages over a 15 day period. The messages are abusive, threatening, and in many cases, vulgar.
The police arrest Ronald and bail is refused on the grounds that Ronald is an unacceptable risk to reoffend.
Legal aid for a bail application is refused on the grounds of merit, and he is remanded in custody after a failed “in person” bail application.
His lawyer eventually is successful in seeking legal aid to represent him on a plea, but only after he has spent six weeks in custody, during which he is badly assaulted. He is released upon a plea, to comply with a community corrections order.
Result: significant deterioration of Ronald’s mental health, requiring more intense treatment. A plea on the remand hearing date would have likely produced the same sentencing result. A claim by Ronald for compensation as a victim of crime is likely to be successful.