WHAT IS LEGAL AID?
Legal aid was set up by the Federal Government in 1973, recognising that:
“…one of the basic causes of the inequality of citizens before the laws is the absence of adequate and comprehensive legal aid arrangements throughout Australia … The ultimate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts.” (Senator the Hon Lionel Murphy AO QC, Attorney General)
This resulted in the establishment of the Australian Legal Aid Office in 1973, followed by the establishment of the Statebased Legal Aid Commissions. These offices provide the majority of free or lowcost legal assistance to those in need.
Eventually, other forms of legal services were established with modest government funding, including:
- Aboriginal and Torres Strait Islander legal services, in recognition of the specific and essential need for culturally appropriate representation for the First Australians. The Redfern Aboriginal Legal Service was actually the first free legal service in Australia (established in 1970).
- Community Legal Centres, which provide essential legal advice and referral services, relying heavily on voluntary and pro bono work from private lawyers
- Family Violence Prevention Legal Services, which provide essential connected legal services to Indigenous victims of family violence
Legal aid is integral to the proper functioning of the justice system. All people have a right to a fair trial and often this will not be possible if legal aid is unavailable for people charged with offences who could not otherwise afford a lawyer.
It is essential to assist people through a lot of situations, including debt recovery, family separation, cases of personal harassment or abuse, or unfair dismissal.
Legal aid was also designed to help people when they have disputes with companies, or the government itself, both of which tend to have access to expensive and powerful legal teams.
It can also be used for legal advice and counsel, which can resolve legal problems before they get to court and save a lot of hassle and cost.
SO IF YOU CAN’T AFFORD A LAWYER YOU CAN ACCESS LEGAL AID?
In short, probably not.
Every year, one in four Australians will experience a legal problem substantial enough to require a lawyer.
In 2014, 2.5 million Australians were living below the poverty line. At current funding levels, however, many people living below the poverty line cannot access legal aid. Fewer than 74,000 legal aid grants were offered in 2014.
So that’s 25 per cent of the population with serious legal problems. 10 per cent living below the poverty line. 0.3 per cent granted legal aid.
It’s not just the restrictive means tests: because of the legal aid funding crisis perpetuated by the Federal Government’s funding model, legal aid just isn’t available for many types of legal problems.
HOW DID LEGAL AID END UP IN CRISIS?
Legal aid funding has steadily deteriorated since a decision made by the Federal Government in July 1997.
Back then, the federal government decided it would only directly fund legal aid services for Commonwealth law matters. It coupled this with restrictive Commonwealth guidelines on where Commonwealth funded assistance could be given.
The result: significant reduction in Commonwealth responsibility for national legal aid needs.
In 1997, the Federal Government spent $11.22 per capita on legal aid. Today, we are heading toward less than $8 per capita. The Federal Government has also passed more and more of the burden to the States. It was making 55 per cent of the contribution until 1997, and today it only contributes 35 per cent of funds.
Two decades of declining funding means the number and seniority of legal practitioners prepared to undertake legal aid has also been eroded.
Court cases are remaining unresolved and escalating into much larger and more complex problems.