AustLII Home | Databases | WorldLII | Search | Feedback

University of Western Sydney Law Review

UWS Law Review (UWSLR)
You are here:  AustLII >> Databases >> University of Western Sydney Law Review >> 2001 >> [2001] UWSLawRw 8

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Armstrong, Susan --- "What has Happened to Legal Aid?" [2001] UWSLawRw 8; (2001) 5(1) University of Western Sydney Law Review 91


WHAT HAS HAPPENED TO LEGAL
AID?

Susan Armstrong

On a superficial level, at least, what has happened to legal aid in Australia in recent times does not differ greatly from what has happened in most other Western countries. There was a huge expansion of legal aid and other social welfare programs during the 1960s and 1970s, and then, a major contraction during the 1980s and 1990s in line with more conservative social and economic policies and the subsequent emphasis on 'smaller government' which currently prevails. Over the past few years, discussion has been overwhelmingly dominated by these budget cuts and their impact, particularly in the area of family law. It has often been said that there is a 'crisis' in legal aid, and this is certainly true in that eligibility restrictions have been tightened and important programs cut back.

But the contraction in legal aid and other social welfare programs over the past twenty years has been a global phenomenon. To get a real sense of how Australia has fared it is helpful to compare what has happened here with developments in other similar countries. Much recent work has been done describing and evaluating legal aid programs in various countries.[1] It is necessary to limit consideration to common law countries, because the civil law systems of Europe are so different in the way they use the courts and the law that an easy comparison is impossible. What I will attempt to do is look at the Australian experience, the strengths and weaknesses of our system, and then compare that with what has happened in Britain, the United States and Canada. When you look at it in this way, you find two things —that beneath the superficial similarity there are considerable differences; and on a comparative basis Australia has not done too badly.

Australia

In 1972, when the Whitlam Government came to power and Lionel Murphy became Attorney General, is the watershed in the history of Australian legal aid. In the period before 1972 legal aid consisted of a patchy network of programs, mostly run by the State Law Societies, which provided services only through lawyers in private practice as the norm. The services that these programs provided were restrictive and generally did not extend beyond basic legal representation in traditional court proceedings. The majority of these programs did not include legal advice.

There were some major differences between the States. NSW, in particular, distinguished itself from the other States by having not only the Law Society Scheme, but also a number of salaried services that continue to make a substantial contribution in this area. These services include the Public Defender's Office, which provides legal aid in criminal cases, and also the Public Solicitor's Office, which provides legal aid and legal advice in both civil and criminal matters. Both of these schemes were established in the 1940s by the Labor Attorney-General Clarrie Martin, who saw them as the beginning of a major salaried component within the legal profession. The expansion he envisaged never eventuated, but the schemes survived and continued to provide important services to NSW residents over the ensuing 30 years. These services were subsequently incorporated into the national legal aid system. In addition, NSW instituted and maintains a Chamber Magistrates system that is based in the local courts. This network of Chamber Magistrates continues to provide legal advice without a means test on a broad range of issues. Chamber Magistrates do not exist in the other States, and are often overlooked in any discussion of legal aid, but they are an important and decentralised source of legal advice within NSW. In comparison many of the other states had no salaried programs prior to 1972 and in essence legal aid consisted of various patchy and inconsistent programs across Australia. These programs were predominantly run by, and provided through, the private legal profession.

The Whitlam Labor Government did not have a policy on legal aid when it came to power in 1972. However, early in its term it asked the Poverty Commission to consider options in this and other areas. The new government also established a Legal Aid Review Committee. The Attorney General was Lionel Murphy, and those of us who remember the period will recall that he was a man of considerable flair and vision, and impatience. Lionel Murphy did not see any reason why he should wait around and see what these inquiries might recommend, as the problem seemed obvious. So, before either of them had a chance to report their findings he had established the Australian Legal Aid Office (ALAO) by Ministerial Directive.

The ALAO was actually created simply by changing the name of a section of the Commonwealth Attorney-General's Department, which had previously given legal advice and assistance to ex-servicemen. This allowed the government to get around the problem that it did not control the Senate, and would not have been able to pass legislation establishing a new program. Murphy was inspired by the neighbourhood law centres that had been set up in the US under Lyndon Johnson's War on Poverty initiatives of the mid 1960s. Murphy envisaged the ALAO as a network of local law offices all over Australia offering accessible legal advice and assistance to anyone needing it.

These initiatives were not without problems. The most significant was a constitutional one. The Constitution did not provide the Federal Government with a head of power to run a national legal aid scheme. Therefore, the ALAO was limited to providing assistance in relation to Commonwealth legislation, especially the Family Law Act, and to 'Commonwealth people'. To ensure that the ALAO was able to provide services to the vast majority of Australians, particularly potential legal aid clients, Murphy defined 'Commonwealth people' as anyone in whom the Commonwealth had a special interest, including people on social security benefits, students, recent migrants, and ex-servicemen. This broad definition, combined with the clear responsibility for Family Law matters, almost certainly covered the majority of the Australian population, and in particular covered the vast majority of legal aid clients.

The ALAO expanded rapidly, and by December 1975, 33 offices had been set up across Australia, with a further 28 planned for the following year, although this expansion was dismissed along with the Whitlam Government. Constitutional issues aside, another major problem was the incredible hostility the initiative faced from the private legal profession. Outside NSW, and to a lesser extent Victoria, the private legal profession had held a virtual monopoly of the legal aid schemes prior to 1972. The private legal profession saw the ALAO's salaried lawyers as unwanted and unnecessary competition and a threat to their monopoly over legal work, and for this reason alone they bitterly opposed the program and its development.

The opposition from private legal practice proved damaging to the ALAO. In order to appease the opposition to the program and to prevent it from sabotaging his dream of an Australia-wide network of neighbourhood law centres, Murphy accepted that the office should first and foremost operate by referring legal aid work out to private lawyers. Despite its considerable complement of salaried lawyers, in practice the ALAO was not very different from the Law Society schemes, as the vast majority of its work was being referred to private practitioners. The ALAO was thus a considerable disappointment both to legal aid activists and to the bright young lawyers who flocked to its staff, sharing Murphy's dream of an Australian equivalent to the US neighbourhood law centres, which strongly emphasised impact litigation and law reform work.

After the dismissal of the Whitlam government in 1975, everyone expected that the Coalition Government of Malcolm Fraser would act on the then Shadow-Attorney-General's pre-election promises to the private legal profession to abolish the ALAO. In the end this did not happen, and in a large part this was due to how the ALAO had been established. Although it looked independent, and had numerous offices throughout Australia, technically it remained a section of the Commonwealth Attorney-General's Department, staffed with a large number of permanent public servants. It was both difficult and expensive to get rid of permanent public servants, and in any event the program was popular with the electorate.

Ultimately, the Fraser Government decided it would make legal aid part of its 'New Federalism' policy, and hand it back to the States. The problem with 'New Federalism' was that the Commonwealth handed various responsibilities back to the States, but didn't necessarily hand over the money needed to support them. Therefore, the States were somewhat cautious of any new Federal government initiative. Nevertheless, an agreement was eventually reached with all States that new a Legal Aid Commission, jointly funded by the State and Commonwealth Governments would be established in each State. It was proposed that these new Legal Aid Commissions, would be constituted under State legislation and take over both State and Commonwealth responsibilities in the legal aid arena. The Legal Aid Commission in each State would supersede the schemes operated by the Law Societies and would also take over the ALAO and its staff.

A critical analysis of the legislation that was ultimately passed by all States to enact these agreements highlights just how closely it followed the recommendations of the Law and Poverty Commission in relation to legal aid. In 1975 the Poverty Commission had completed a major report on legal aid and recommended that legal aid should not be run by either Government, which compromised its independence, or by the private legal profession, which faced a conflict of interest. This conflict arises from the fact that the objective of legal aid must be do to the maximum amount of high quality legal aid work, while inevitably the interests of the private legal profession lie in having the maximum amount of work referred to private lawyers. To overcome this twin problem the Poverty Commission proposed that legal aid be run at the national level by an independent statutory commission. The private legal profession should have strong representation on the Commission, but should not be able to dominate it. The Poverty Commission then made three key recommendations:

The Legal Aid Commission should be a broadly-based body which included representatives from consumers, non-lawyers, social welfare agencies and salaried lawyers as well as private practitioners;
It should be responsible not just for providing legal aid, but also for funding a range of other service providers such as community legal centres; and
It should take a broad approach to its work, and see legal aid as encompassing not just representation and advice but also law reform in the interests of low income people; strategic use of impact litigation; provision of community legal education and information; and self-help programs.

Each of these recommendations were incorporated in the legislation that formed the basis for the legal aid commissions, although of course these were state commissions rather than the single national commission envisaged by the Poverty Commission. There was one other key recommendation, that there be community input into the running of legal aid centres. Ultimately, this recommendation was discarded, for better or for worse.

Control of the legal aid commissions was a bitterly fought contest among the stakeholders in the new format. Naturally the private legal profession wanted to maintain its control of legal aid, while others, in particular the Australian Council of Social Service (ACOSS), strongly opposed any ongoing control by the private legal profession. In the end, ACOSS emerged victorious from this contest. The

Commonwealth Attorney-General's Department produced three drafts of the model legislation on which the State agreements would be based. The first two drafts allowed the private legal profession to maintain its majority on the Commission. However, and most importantly, the critical third draft reversed this position, and implemented the Poverty Commission recommendation on composition. In this draft the private legal profession, although they remained as a strong presence, they were clearly in the minority. The numbers of the other stakeholders combined, including consumers, non-lawyers, social welfare groups and salaried staff, clearly constituted the majority vote on the commission.

The position adopted in the third draft is absolutely the most critical decision made in the recent history of Australian legal aid. In my view, as a result of that one decision, no matter how bad things are here, Australia has performed better than a range of other countries, particularly the United Kingdom, which could not deny control of legal aid to the private profession. I will look at the UK and Canada in more detail below, but just what are the strengths and weaknesses of legal aid in Australia today, and how well have we done compared to other western countries?

The major weakness of course is funding. All government sector programs have suffered funding cuts in recent years, but without a doubt at the Commonwealth level legal aid has been consistently targeted for funding cuts. In 1996, for example, the Commonwealth Attorney-General's Department was told it had to save $33 million as part of John Howard's 'Dividend' from government departments. Unfortunately, the Department decided to save all $33 million by slashing its legal aid budget. This is hardly fair, but it reflects the current philosophical position of the government, aside from its desire to continually slash public spending.

When Lionel Murphy started the ALAO he accepted, on behalf of the government, broad Commonwealth responsibility for legal aid. The vast majority of users of legal aid services are people on social security benefits. It has been calculated that these users make up 65 percent of the total number of legal aid recipients. Considering family law is also included in legal aid, Murphy’s legal aid vision ensured that the Commonwealth would be responsible for and bear the major burden for funding the program. Over the years the Commonwealth has always resisted any suggestion it should be responsible for 'Commonwealth people', and has now imposed a regime where it sees its responsibilities limited to family law and a select number of other areas where Commonwealth laws are involved.

This is a critical problem both for legal aid and for the States, which are now expected to fund the work of which the Commonwealth has washed its hands. Recent comparative data supports the view that Australia is devoting less than equivalent countries to the support of legal aid. In 1993-4, for example, Australia spent about $US10.50 per person per year on legal aid. This was substantially more than that spent by the United States and Ireland; marginally less than that of Canada ($US17), and New Zealand ($US14); and massively below the expenditure in the United Kingdom ($US47).[2]

Nevertheless, these figures do not tell the whole story. The objective of legal aid is not to spend money, but to provide services. Does the United Kingdom provide a legal aid service that is four times better than that of Australia, or is it merely four times more expensive? I will return to this point later, but there is evidence that the latter, rather than the former, holds true. However, before we look in greater detail at other countries, it is necessary to analyse the strengths of the Australian legal aid system.

First, it is still a national system. It is creaking at the joints at the moment, but it remains true that even though there are seven separate state systems, the similarities between those systems are much greater than the sum differences. Most importantly we have not returned to the pre-1972 era when the nature and the quality of the services you could expect was dependent on where you happened to live. The Commonwealth's restrictive approach to its legal aid role is putting the system under additional pressure, and has recently resulted in the NSW Legal Aid Commission refusing to enter into another agreement with the Commonwealth. In spite of this, the Commission continues to undertake Commonwealth work on a contractual basis thereby maintaining the semblance of a unified system. Maintaining it should be a major priority for legal aid. No-one who remembers the 'good ol’ days', when consumers had to work out which one of a number of competing legal aid schemes was the one that could best help them, would want to return to those days. It was confusing, expensive, and involved the duplication of too many resources.

The second strength is that it is a very diverse system. Historically the ALAO provided legal aid through a combination of both salaried lawyers and private practitioners; similarly the Commissions provide legal aid through salaried lawyers as well as private practitioners. The Commissions now also provide services through a large network of community and specialist law centres. Unfortunately, these are all funded at minimum levels and are therefore reliant on the effective use of volunteers. In spite of the funding situation there are now approximately 160 of these specialist law centres, or 8.1 centres per million people, which is a surprisingly large number compared with other countries. In Ontario, for example, there is no salaried legal aid sector at all, and there are only 6.4 centres per million people, while in the UK there is only 1 centre per million people.[3] So, in terms of community legal centres, we actually do comparatively well. Of those community legal centres, some are local such as Redfern and Kingsford Legal Centres, but others are specialist centres such as the Environmental Defenders' Office, the National Children's and Youth Law Centre, and the Public Interest Advocacy Centre. Together with the core salaried staff, these centres provide a base of specialist expertise within the system, which can be strategically deployed in the overall interests of legal aid clients to an extent that is impossible under systems that rely exclusively on private practitioners. The critical argument against private practitioner schemes has always been their inability to develop specialist expertise in problems specific to legal aid clients, and to deploy that expertise strategically.

It should also be noted that these figures on the number of community legal centres do not include the large network of Aboriginal and Torres Strait Islanders Legal Services (ATSILs), as the Aboriginal and Torres Strait Islander Commission (ATSIC) separately fund these. These centres provide free legal aid and without a means test to Indigenous people throughout Australia through both salaried and private lawyers. The system is a decentralised one, and its particular strength is that it provides services in a culturally appropriate way by employing field officers and making extensive use of outreach programs that cover both remote and urban areas.

Australia has a comparatively diverse range of legal aid programs compared to other countries. Additionally, the schemes provide different types of services. Compared to other jurisdictions we won the battle to say that legal aid should not just be about giving legal advice and legal representation, but rather it needs to include community legal education, law reform, advocacy, programs like Do Your Own Divorce classes, and the provision of information, to name but a few. Furthermore, the advent of new technology has provided a means to increase access to legal services, particularly at dedicated legal websites. On the NSW Legal Aid Commission’s website, for example, you will find a large amount of information on a range of legal issues that people can access and utilise for themselves. Traditionally, access to legal aid facilities has been taken for granted by the majority of Australians, as these facilities have become the norm rather than the exception. However, legal aid facilities in other countries are far less developed. In part this is because the community legal centre sector in other countries is much smaller, yet it is a little too simplistic to suggest this is the whole answer. Each of the Commissions has been granted broad statutory responsibilities in these areas of the law. While it is true that these matters are given different priority in different times and places, all the Commissions do accept some degree of responsibility for this sort of work. Indeed international commentators have noted that compared to other countries, Australia does accept a broad definition of legal aid.[4]

It is certainly true that the Commissions and their staff make a significant contribution to law reform. Any examination of the list of submissions to almost any major law reform exercise will contain submissions from the Commissions. It will also include submissions from National Legal Aid, which is now the Commonwealth oversight body, and also a significant number of community legal centres and their staff. The number of submissions will vary according to the legal issue being studied. A recent example is the Australian Law Reform Commission’s review of Federal Civil Justice. Submissions were received from four of the seven Legal Aid Commissions, from National Legal Aid and many community legal centres and their staff. When one considers the considerable number of law reform exercises undertaken throughout Australia each year, and the many submissions contributed by the legal aid community, there is no doubt that it constitutes a fairly substantial contribution to law reform. These types of contributions do not exist to the same extent in countries that lack significant salaried legal aid sectors.

Another significant strength of the Australian system is that it has within each Commission a substantial number of salaried legal aid lawyers who share the work with the private profession. There is no doubt that this has been a major contributor to containing the cost of legal aid. There has been a long and often bitter argument between proponents of salaried services and the private legal profession over which system is cheaper. This is not an argument that can ever be absolutely won because the answer will always depend on factors such as what services you are looking at, where they are located, and the results achieved. However, it is now generally accepted that overall salaried legal aid is a cheaper way of providing the services. This is not just because they are cheaper to run, but also because if you have a mixed system such as in Australia, the existence of salaried lawyers provides an alternative to the use of private practitioners, and therefore a degree of control over their fees and how they are charged. In other words, private practitioners have an incentive to keep their costs down so that the system can continue to use them. In a situation without such an incentive, where the private profession has a monopoly on legal aid work, it is difficult to control costs. In the UK, for example, where private practitioners do all the work there has been a massive escalation in the overall cost of legal aid. To a significant extent these have been escalations in the cost per case, rather than just increases in the number of cases. Legal aid now costs the UK Government around £1.7 billion per annum and all this money goes straight to private practitioners. Importantly, virtually none of this money is used to support the development of community legal centres or alternative programs currently available in Australia.

At the end of the day, there are many strengths within the Australian legal aid system. These strengths should not be confused with perfection. Australia’s legal aid system remains under-funded, it has not achieved as much as it should have, and many of the program’s stakeholders are under-committed to legal aid services. Yet, compared to some other countries we have done quite well. There is no doubt that this is due to the structure of the scheme, where control was given to broadly based bodies which incorporate the views of a range of stakeholders, including non-lawyers, consumers, community legal centres, salaried staff and those of the private legal profession.

Another consequence of this structure has been to maximise the strength of the legal aid lobby, because all these groups have a direct interest in maximising the funds for legal services and have fought a fairly strong battle against the Commonwealth's cuts. They have not succeeded, but opponents of cuts have not succeeded anywhere else either outside the UK, and it is reasonable to assume that the funding cuts might well have been much worse if the opposition had not been as strong.

The United States

Developments in the legal aid sector in the USA are particularly interesting because it was the US model, of the neighbourhood law centre, that Australia and other countries sought to adopt in modernising their legal aid programs. Yet, despite this promising start, in many ways the US program has been pilloried worst of all. The US scheme has had its funding slashed to a level that ensures that it must be restrictive in how it chooses to spend the limited funds it does receive. Why have they done so badly?

Neighbourhood law centres were set up in the 1960s as part of President Lyndon Johnson's War on Poverty with an agenda and objectives much more radical than most people understood at the time. Most Australians simply assume that the role of legal aid is to provide equal access to justice, but this was not the objective of the US Legal Services Program. The aim was much more ambitious than just providing equal access to justice, rather it was to combat the causes of poverty or, in the words of the first director of US legal aid, 'to marshal the forces of law and the strength lawyers to combat the causes of poverty'. The assistance of individual clients was always a secondary aim of the program, and initially conditions were placed on grants to limit the amount of 'casework' offices undertook and to ensure adequate emphasis was given to law reform and impact litigation. Furthermore, the comparatively radical approach in the US stems from the term 'legal aid' itself, which refers exclusively to civil legal aid. A constitutional right to counsel in the US ensures that each prosecuting authority is responsible for arranging legal representation for indigent defendants in serious criminal cases; subsequently this has never been seen as related to the civil legal aid program. Therefore, the US legal aid system had no need to deal with the heavy casework demands of providing criminal defence services, which allowed them to undertake a more radical agenda. There is no doubt that the comparatively radical agenda of the Legal Services Program was a major cause of the difficulties the program encountered under the conservative administrations which succeeded Lyndon Johnson's presidency.

A further reason is that the private legal profession never had any role in civil legal aid. To Australians this may appear astonishing, given that the US is the home of free enterprise, but paradoxically it originally arose from US fears of 'socialism'. The idea of private lawyers being paid to do legal aid work was perceived to be the first step on the road to socialisation of the legal profession. Private profession involvement was reconsidered when the Legal Services Program was set up in the 1960s, but again there was a conscious decision to exclude private practitioners from any role. This time they were kept out as a result of an extraordinary alliance between the administrators of the program, and the American Bar Association. The administrators of the program did not believe that the private profession sufficiently supported the radical aims of the scheme, whereas the American Bar Association feared a 'feeding frenzy' at the lower end of the Bar as people scrambled for legal aid work and this would tarnish the image of the entire legal profession. The net result was that private lawyers in the US have never had a role at all in civil legal aid, and the Legal Services Program from its inception was a purely salaried program.

The Legal Services Program was a tremendously exciting program, which inspired a generation of law students in Australia and other countries. Initially, the program expanded at a rapid pace and by 1967 had 2,000 full-time lawyers in offices located throughout the US. These lawyers were bringing legal services to migrant farm workers, rural people on Indian reservations, and others who had never before had access to any legal services. In the early years, important civil and constitutional rights were established in a series of landmark cases before the US Supreme and Federal Courts. These landmark cases served to institutionalise new entitlements across a range of areas, enforced industrial standards for the first time, created prisoners' rights and liberalised social welfare eligibility at both state and federal levels among others. Unfortunately, this Brave New World lasted a comparatively short time as the program encountered problems that proved insurmountable. What went wrong?

A major factor was that the initial rush of successes could not be sustained in an increasingly conservative political climate. The presidencies of Nixon and Reagan ensured that conservative appointments were made to the benches of the Supreme and Federal Courts. Consequently, the program increasingly faced a judiciary unsympathetic to the activist and protectionist claims being advanced on behalf of legal aid clients.

Another significant factor was that the program's radical agenda and early successes created some powerful enemies. Unfortunately, the most prominent of these, Ronald Reagan, went on to become US President. The program's first big battle occurred when Reagan, then Governor of California, vetoed a grant to one the State’s legal aid programs. The California Rural Legal Assistance program had upset agribusiness throughout California with its success in creating and enforcing industrial rights on behalf of itinerant migrant farm workers. Ultimately, Reagan’s veto was over-ridden. However, the bitter fight, which ensued, took about eighteen months to resolve, and by the time it was over Richard Nixon was President. Nixon set about dismantling the Office of Economic Opportunity, which had established the Legal Services Program, and the dismantling of the program has continued unabated ever since. In spite of these difficulties the Legal Services Program remains as the Legal Services Corporation (LSC) but its budget has been slashed. The US now spends around $US3.60 per person per annum on civil legal aid compared to Australia's expenditure of around $US5 per head[5] . In addition, savage legislative limits have been imposed on what it can do, or more specifically what it cannot do. The LSC cannot participate in law reform work, it cannot undertake impact litigation, and it is not allowed to refer cases to the US equivalent of our specialist legal centres. In fact, the program has evolved to be exactly the opposite of what it was originally established to be.

The enemies of the Legal Services Program were so successful in slowly but surely dismantling the program because it had few supporters. The primary reason for the lack of crucial support is that the developers of the program envisaged a radical legal service working at the coalface of legal reform, but to achieve this objective they deliberately bypassed many of the people who might ordinarily have been expected to support it. In particular, the program’s administrators bypassed or marginalised the labour movement, State and Local governments, and the private legal profession. Consequently, as these groups are not stakeholders in the program they have been largely indifferent to it, particularly lawyers in the private legal profession. The American Bar Association (ABA) has always supported the program. However, it is clear that while some of this support was altruistic, an even greater motivator was a fear that if the program were abolished the ABA might be expected to work out what to do about legal aid. It appeared to the ABA that the only means to address the abolition of legal aid would be through the establishment of pro bono schemes in the private legal profession.

Therefore, the US legal aid system is a case study in how not to create and develop a legal aid system. An important lesson to be learned from the US experience is that to survive, legal aid programs need powerful supporters. This means that a legal aid program needs to be inclusive in terms of its structure and not too radical in terms of its objectives. Simply, when you try to take on everybody on behalf of the poor, and your only supporter is the poor, your chances of sustainable success are not high. The weak performance of the US legal aid system did not arise as a result of any unique factors to the US experience, but rather arose as a result of poor policy and legislative initiatives in legal aid. The outcomes achieved in the US would certainly have been reproduced in Australia if the same policy and legislative framework were adopted.

It is not possible in this paper to expand on the US criminal legal aid system, which does not provide any helpful illustrations in evaluating the Australian legal aid system. Nevertheless, many Australian lawyers consider the lack of attention paid to criminal legal aid in the USA, extraordinary, particularly in light of the practices with respect to capital punishment. Each prosecuting authority provides the legal aid scheme and as a result they vary quite dramatically in the types of service provided and the quality of those services. Some of these schemes employ salaried staff, whereas others pay private lawyers to provide the necessary legal aid services. California, for example, spends $US 9 per capita per year on its criminal legal aid program, while Arkansas spends $US 0.67. So, if you are going to be arrested in the US on a serious charge you would be wise to choose your county or state with extreme care, particularly in light of the appalling tales of people being executed after their assigned lawyer failed to lead alibi evidence or cross-examine the prosecution's major witness. Considering the individualised nature of the provision of legal aid services in the US and the noted differences between States in funding levels, there are some good schemes as well. Nevertheless, most Australian lawyers would find both the lack of effective criminal legal aid and the absence of any general concern in the US about that lack thereof, astonishing. In that sense, the US is different, and certainly does not provide Australia with a model we would wish to follow.

Britain

The contrast between the development of the USA and British systems is a study in extremes. In the USA the private legal profession has never had anything to do with legal aid, whereas in Britain the private legal profession controlled it. This control included the provision of all legal services through lawyers in private practice, which in itself served primarily the interests of private legal practitioners. As one anonymous administrator said, 'salaried lawyers are cheaper, but the profession wants the work.' [6]

Legal aid developed as part of the British welfare state. The Legal Aid scheme maintained comparatively generous eligibility limits and covered legal advice as well as representation, and importantly the government underwrote the costs. Over the years legal aid has developed into a major provider of income to the private profession in Britain. In 1977, the Royal Commission on Legal Services estimated that approximately 30 percent of the income to the UK bar was from legal aid. Current expenditure on Legal Aid by the British government is now £1.7 billion per year.

All this money goes straight to the private profession, because in Britain the Law Society, which ran the scheme for most of the post-war years, has been effective in preventing the development of alternative services such as the community legal centres. Some law centres were set up, starting with the well-known North Kensington Law Centre, but they were never part of the legal aid budget, instead being funded from a range of uncertain sources such as local councils. It is difficult to avoid the conclusion that the Law Society has deliberately tried to sideline Community Law Centres, and has largely succeeded in doing so. Funding has frequently been directed to the Citizens' Advice Bureaux (CABx), which often provide legal advice and performs the function normally attributed to community law centres. It is hard to object to funding for any legal advice service, but clearly the CABx do not provide a credible alternative to the private legal profession whereas the community law centres do. The net result is that in the UK there are few community legal centres, one centre per million of the population and they do not play a significant part in the system.[7]

Nevertheless, the UK system has been extremely stable, with expenditure increasing every year in line with population increases. It is unlikely that any Western Government will continue to fund an ever-expanding budget for access to legal services; this is particularly the case for the UK. When the crunch came the British Parliament debated and passed the Access to Justice Act 1999. This Act was passed by the Blair Government but developed by the previous Conservative Government. In effect, this has created a bipartisan approach in Britain to challenging, changing and reforming the legal aid system. The official motivation is the need to guarantee quality of service, but it is hard to avoid the conclusion that the real intention is to contain costs.

The Act sets up a Legal Services Commission similar in structure to the Australian model. It is designed to provide legal aid through salaried lawyers as well as private practitioners. It is too early to assess how the new Act will operate, particularly as there is a high level of debate within, and opposition from, the profession over the changes. Nevertheless, certain predictions may be hazarded, and it is clear that the British legal aid system is in for a considerable shake-up. At present, 11,000 firms do legal aid work in the UK, and a significant proportion of their income is derived from legal aid. The new Legal Aid Commission has said that as from April 2001 lawyers cannot do any civil legal aid work unless they have a contract with the Legal Aid Commission. The Legal Aid Commission has stated that there will be between 3,000 and 5,000 contracts provided. Therefore, there will be almost 6,000 firms under pressure to derive alternative sources of income. Within the profession there is a great deal of anxiety, as it has been suggested that the majority of those firms that miss out on contracts will become bankrupt or be consumed by those firms that gain a contract. The changes have prompted British lawyers to participate in the profession's first ever protest strike.

The plans in criminal legal aid are, by comparison, rather less clear at this stage. It appears that salaried services are intended, but it seems that these will have to compete for clients with the private legal profession. It also appears from the legislation that people have the right to the lawyer of their choice. This is a laudable idea perhaps, but it is hard to see how a fledgling salaried service can compete with the giants of the Bar for legal aid clients in the criminal sphere, particularly when the private Bar is so dependent on its legal aid work. One possible outcome is that the civil legal aid system will be turned on its head through contracts, which limit and control the legal aid work going to the private profession, but the current criminal legal aid system may not be much changed at all. The only sure bet is that the British Government is not going to keep funding an ever-expanding legal aid budget, and is now taking action to contain costs which will change fundamentally the existing British legal aid system.

Canada

Canada is an interesting comparison because different provinces maintain different systems. In this regard, it is a useful laboratory for comparative research. Some of the work done there has finally demonstrated, more persuasively than anything else, that salaried legal aid lawyers are cheaper, in large part because they achieve the same outcomes.[8] It would seem that a system that allows payment by the hour would provide an incentive to spend more time on any one case. This is not to accuse private lawyers of rorting the system, merely to say that if you bill by the hour, it is obvious that you do not have the same incentive to focus your time as someone who is paid under a different system. The general movement in many countries away from payment by the hour for individual cases and toward a system of contractual arrangements with particular firms in part addresses this problem.

Ontario offers the most interesting comparison with Australia. It has a similar history to that of Britain, with all legal aid being provided through private practitioners under a scheme, which has traditionally been run by the Law Society. However, unlike Britain, in Ontario community legal centres have succeeded in getting themselves established and accessing the central legal aid budget. These centres, known as Clinics, are not as numerous as in Australia. There are now about 70 clinics compared to 160 community legal centres in Australia. However, unlike Australia, in Ontario there are no salaried legal aid lawyers outside the Clinics. Inevitably, as happens under a scheme operated exclusively through private practitioners, the costs of the Ontario scheme have expanded dramatically, generating objections from Government to the cost of maintaining the service. However, because there is no salaried sector, the Ontario Government that funds the scheme can exert little control over costs except through the politically costly approach of cutting services.

Accordingly, the Government has been putting pressure on the Clinics to undertake more casework —in effect, to become the salaried sector of the legal aid scheme so as to contain the costs of undertaking all work through private practitioners. The Clinics are reluctant to do this, as they want to maintain the focus on the traditional priorities of community legal centres such as education, law reform and impact litigation. However, the clinics are in a bind as they want and need the money, which the Government is offering them to expand, but they do not want to simply become the salaried sector of the legal aid scheme. Australian community legal centres face a similar dilemma through government pressures for accountability, but they are spared the worst of this pressure because of the existence of an alternative salaried legal aid sector within the Commissions.

Conclusion

Those working in, or close to, Australia's legal aid system are conscious of its deficiencies. However, it is important to maintain a sense of perspective, and also to learn from what other countries are doing. When you look at systems such as the US, Britain and Ontario in Canada, you have to conclude that for all our failings, Australia has done comparatively well. No Government is going to give out a blank cheque or even a large cheque, particularly for social welfare programs, irrespective of community desires. Compared to others Australia has a diverse system that is fairly cost-effective and does seek to deliver on the broader outcomes of legal aid. By comparison, the US the legal aid system is much smaller and much narrower, while in Britain the high cost of the program bears little relationship to the outcomes that are delivered to clients. The British system is also narrowly focussed on what private practitioners have always delivered to clients rather than on what the legal aid clientele needs. In Ontario, the Clinics provide some amelioration of the narrowness, but the lack of a salaried legal aid sector outside them limits the extent to which they can provide a brake on the costs of private legal practitioners undertaking legal aid services, and the system is now under severe pressures to cut costs.

The conclusion this analysis suggests is that the differences between these countries are dependent on the decisions their respective governments made about structure. The differences between do not appear to be significant in terms of culture, historical patterns or attitude, but rather seem to arise as a result of the original decisions as to control of legal aid and legal aid funding. If Australia has done better than other countries, it is not that we have been smarter, but rather that we made one or two key decisions correctly.

There are three final points. First, it is important to remember that legal aid is not all there is. The object of legal aid is access to justice. Therefore we also need to recognise that the legal profession is not very accessible to ordinary people. It certainly is more accessible than it was twenty-five years ago when the Poverty Commission was writing its report. In the mid- to late-1970s the private legal profession was quite small and mono-cultural with no legal advertising and no price competition. It had become prosperous on monopolies like conveyancing. Consequently, when people wrote about the barriers of fear and ignorance the ordinary person faced in consulting private practitioners they were describing a phenomena that meant something to those that had endured it. Unfortunately, many of those barriers remain, albeit not as high as they once were. Lawyers are now allowed to advertise and they do so wherever they can, including the radio, newspapers, magazines and even the yellow pages. The competition in the legal services industry is much more intense than it once was with lawyers offering free consultations or 'pay if you win' arrangements to encourage people with a damages claim to consult them. Furthermore, it is common to see class action firms soliciting in the media following a major incident or accident. Importantly, these developments provide at least an avenue to encourage people to see a lawyer if they need one. In Australia, whether we like it or not, the legal aid system is never going to cater to more than a minority of people on very low incomes, and reform of the legal profession to make it more accessible to ordinary people is as important in terms of access to justice as the legal aid system itself.

Second, the legal aid needs to adopt a broader agenda than simply providing legal advice and representation. In everything from employment services to the provision of infrastructure, the move is away from an approach that emphasises 'rights' towards one which emphasises 'choice' and 'competition'. Increasingly consumers, and even the unemployed, are expected to look after themselves by taking their business elsewhere if they do not like what the service provider is doing. Alternatively, they can utilise the increasingly ubiquitous complaints systems. Competition and choice require a level of understanding and sophistication on the part of consumers that is greater than that needed to seek enforcement of defined 'rights'. The legal aid system needs to be increasingly proactive in areas such as legal education and information programs, self-help kits, and specialist support centres among others, to ensure that this change does not grossly disadvantage the less educated and powerful members of the community.

Finally, throughout the preparation of this paper I came to realise that the 'inclusiveness' of the Australian legal aid system is one of its major strengths, but it also one of its weaknesses. In recent years the debate in Australia has focussed, almost exclusively, on the proponents of legal aid demanding more money and the Commonwealth demanding increasingly greater cuts. The proponents of legal aid are right in that they do need more money, but it also needs to be remembered that there are many varied interests at stake in the debate. The interests of the stakeholders in legal aid are not all identical. In relation to family law, for example, there is much to be said for the argument that the interests of clients and legal aid might be well served by reforms that reduce the costs and complexity of some services. Of particular importance is a need to steer some matters to Alternative Dispute Resolution and to reduce the costs associated with pursuing a matter through the courts. These two issues were among a number that were identified by the Australian Law Reform Council in its recent report, Managing Justice. The interests of the private profession are going to be best served by maintaining the present system that allows the referral of the maximum number of traditional type cases to them, whereas the interests of consumers and legal aid providers might well be better served by greater institutional change. It is important for law students and other people who are outside the system to maintain the pressure for systemic change. If the debate is limited only to 'how can we get more money for legal aid?', then many opportunities to overhaul and reform the system will be lost forever.


[1] In particular see Regan, Patterson, Goriely and Fleming, The Transformation of Legal Aid: Comparative and Historical Studies, Oxford University Press, 1999.

[2] E Blankenburg, 'The Lawyers' Lobby and the Welfare State' in Regan, Paterson, Goriely and Fleming, The Transformation of Legal Aid: Comparative and Historical Studies, Oxford University Press, 1999, p.122.

[3] FH Zemans and A Thomas, 'Can Community Clinics Survive? A Comparative Study of Law Centres in Australia, Ontario and England' in Regan, Paterson, Goriely and Fleming, The Transformation of Legal Aid: Comparative and Historical Studies, Oxford University Press, 1999, pp. 65-66.

[4] See Goriely and Tamara, 'Making the Welfare State Work: Changing the Conceptions of Legal Remedies Within the British Welfare State' in Regan, Paterson, Goriely and Fleming, The Transformation of Legal Aid: Comparative and Historical Studies, Oxford University Press, 1999 at p.109.

[5] E Blankenburg, n.2.

[6] Cited Legal Action Group, A Strategy for Justice: Publicly Funded Legal Services in the 1990s (Legal Action Group, London, 1992) p.83.

[7] FH Zemans and A Thomas, n.3.

[8] Canadian Department of Justice, Patterns of Legal Aid, (Department of Justice, Ottawa, 1995).


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UWSLawRw/2001/8.html