Making legal aid matter down under
Last month, LAG’s director, Steve Hynes, was invited by the Law Council of Australia and the Cranlana Programme1As part of the Cranlana Programme’s ‘cultivating wisdom in leadership’ work, Steve Hynes gave the inaugural Justice & Society Oration on Saving Legal Aid. The event was recorded for the ABC radio programme Big Ideas. to speak at events to mark Australia’s National Law Week. He describes the legal aid system down under and the campaign to persuade the Australian government to better fund it.
Low eligibility levels for criminal legal aid have led to a situation in which people accused of a crime, or their relatives, are forced to remortgage their homes to pay for their defence.
Driving on the left, cricket, and pie shops: Australia feels familiar. There are differences, though. Its legal system is based on the British one, but it spends half the amount England and Wales spends per capita on legal aid. In a country in which people like to say everyone is entitled to a ‘fair go’, it seems this does not extend to equality before the law.
Criminal legal aid
In criminal cases in magistrates’ courts, legal aid is only granted if the accused is facing a potential jail sentence. Further, as Pauline Wright (pictured), the senior vice-president of the New South Wales (NSW) Law Society, points out: ‘If you manage to keep your client out of jail, the legal aid board will try to recover the defence costs from the firm.’ In a legal aid version of catch-22, Australian legal aid administrators in some cases will argue that the defendant did not qualify for legal aid as they did not go to jail.
David Neal SC is a senior barrister in Melbourne and points to the example of a recent case in the magistrates’ court in which a young man was stopped by police and charged with possession of illegal drugs. Fortunately, the accused had parents with contacts who could arrange a barrister to appear pro bono for their son.
Neal believes the police routinely fail to prepare cases properly as they assume the defendant will have no representation. In the case of the young man, the police had neglected to run a test on the pills to establish if they were illegal; the defendant had bought them legally from a pharmacy. The barrister forced them to withdraw the charge. There are many more cases, says Neal, in which the accused are not so lucky: you can go to ‘any magistrates’ court, any day and see many poor and vulnerable people caught like rabbits in the headlights’, facing criminal charges without legal representation.
Neal, who is a member of the Law Council of Australia’s (LCA) national criminal law and access to justice committees, says only ‘eight per cent of Australians qualify for legal aid, while 14 per cent live below the poverty line’, which means some of the very poorest are not entitled to assistance. The low eligibility levels for criminal legal aid have led to a situation in which people accused of a crime, or their relatives, are forced to remortgage their homes to pay for their defence (see box, ‘Parents picking up the bill’). Even if found innocent, Australians can rarely recover the costs of their defence as, according to Wright, to do so they have to show it was not in the public interest to investigate the crime and/or there was not a ‘reasonable case to prosecute’.
Most criminal legal aid is paid for by the states rather than the Commonwealth (central) government, which has led to variations across the country in what is covered. The NSW state scheme is acknowledged to be more generous than that of neighbouring Victoria, and includes a well-resourced salaried public defender service (see box, ‘Sydney Public Defenders Chambers’).
Civil legal aid
Little provision is made for legal aid in civil cases. Part of the cash the Commonwealth government puts into legal aid is spent on a family legal aid system in which cases involving domestic violence are prioritised. However, LCA director of policy Nick Parmeter says that ‘if the abusive partner is not represented, the victim is not entitled to legal aid’.
There are examples of more comprehensive services that sit outside the main legal aid scheme. Victoria Legal Aid runs a telephone advice line from its main offices in Melbourne. The service employs just over 30 lawyers who provide advice on civil legal problems in English and 22 other languages. Bevan Warner, Victoria Legal Aid’s managing director, describes the service as ‘the canary in the mine’ as it can alert policy-makers to emerging systemic and other trends in the legal problems that people are facing.
Around 200 Community Legal Centres (CLCs) in Australia provide case work and other legal services to low-income groups, including Aboriginal communities. The centres are similar to the Law Centres in the UK. Many are funded by the Commonwealth government as well as receiving funding from the states and other sources. A cut of A$12.1m (£6m) has been recently announced to the CLC grants pot. A A$4m (£2m) reduction in specialist legal centre services for Aboriginal and Torres Strait Islander peoples has also been announced. The cuts to the centres will be effective from next year unless the incoming government has a change of heart.
Parents picking up the bill
David Neal SC (pictured) is currently defending a client who is subject to a control order as he is suspected of being at risk of committing a terrorist offence. The Commonwealth government has refused legal aid and the State Legal Aid Commission has lately agreed to grant limited legal aid that does not remotely equate to market rates. His client is not working and his parents have to pay his defence costs to this point from a loan secured on the family home. They have no capacity to borrow further. The Commonwealth government is pursuing the case with Queen’s Counsel, junior counsel, and the Australian Government Solicitor’s office representing the Australian Federal Police.
A lawyer interviewed for this article outlined the details of one of their recent cases. The client had been arrested and charged with the murder of her violent partner. The lawyer believed manslaughter would have been the appropriate offence with which to charge the defendant, given the history of violence she had suffered and the other circumstances surrounding the incident leading to the death. As the client is in a relatively well-paid job, though, she did not qualify for legal aid, despite being suspended from work on no pay due to the charges she was facing. The woman’s parents paid her defence costs by remortgaging their home as the accused had no equity in her property on which to secure a loan.
In both cases, according to the defence lawyers, the parents have little or no prospect of recovering the costs of paying for their children’s defence costs.