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Wednesday, 27 November 1996
Page: 6153


Senator COONAN(4.14 p.m.) —It is to be expected that all of us who are concerned about access to justice for those in need in the community will express concern at any perceived threat to reduction in the availability of legal aid. The proposals put forward by the government, however, deserve constructive and careful consideration before reaction degenerates into hysteria, false alarm and exaggerated predictions about the number of people directly affected now or likely to be affected by adjustments which have not yet come into effect.

In essence, the changes that the government have announced will ensure that legal assistance for matters arising under the Commonwealth law will be maintained, and the states and territories will assume responsibility for legal aid arising under their own state and territory laws.

Now, there is nothing sinister about this decision. The Commonwealth decision has been prompted by the disproportionate amount of funding which has been applied by the states and territories to meeting demands for legal aid in state law matters, such as criminal trials, at the expense of Commonwealth matters such as family law, child support, eligibility for benefits under Commonwealth laws such as pension matters and aid for war veterans.

The Commonwealth, very simply, is removing an unjustified subsidy to the states and territories for their own legal matters. It is simply unacceptable and unfair to those needing legal aid in our community to deal with Commonwealth laws and matters when, in circumstances that currently prevail, state funding and administration by state legal aid commissions take an unfair amount of the funding.

The Commonwealth has estimated that around $33 million of the $150 million appropriated by the Commonwealth for legal aid is currently diverted from Commonwealth matters and is being applied to state and territory law matters, predominantly criminal trials. But as well as getting Commonwealth funding, the states and territories are able to access further moneys from the statutory interest on solicitors' trust accounts.

With the extent of Commonwealth funding to the states and the use of the statutory interest on solicitors' trust accounts, the states have been able to reduce their contributions to legal aid to an unacceptably low percentage of the legal aid bill. It is high time that the states and territories faced up to funding their own fair share in the provision of legal aid to the needy.

It is ironic indeed that Senator Bolkus is the mouthpiece today—and Senator O'Brien—of the outrage at the Commonwealth's proposals to bring proper balance and fairness into the distribution of legal aid in this country. How can it be fair that people with family law, associated domestic violence problems and other Commonwealth disputes are squeezed out, unable to get assistance to deal with Commonwealth laws, because the legal aid commissions in each state have been able to spend most of their funds on state and territory criminal matters? Where is the fairness in that?

After all, it was the late former Senator Lionel Murphy who, in 1973, used the consti tutional device of designating certain categories of persons as having sufficient connection with the Commonwealth to attract Commonwealth funding and established the Australian Legal Aid Office. Those categories—pensioners, migrants, students, service men and women and Aborigines—had hitherto been assisted by the private legal profession funded by interest on the statutory trust accounts in each state.

All that is now proposed is that, where these categories of eligible persons have a Commonwealth law problem, the Commonwealth will fund them; where they have a state law matter, the states and territories will be expected to fund aid. An exception is the abolition of the separate Aboriginal Legal Service, recently so much criticised in connection with failure to adequately represent indigenous people, and the transfer of that funding to the state and territory legal aid commissions.

Senator Murray is not here to hear this, but that may do something constructive to assist with the appalling toll of Aboriginal deaths in custody. The current system is certainly not helping them. Senator Murray also mentioned need for a bit of vision. How is this for a bit of vision? One may ask, why not take this opportunity to reconsider the whole gamut of legal aid services and how those services are funded? It is not as though the current legal aid system has worked so efficiently that it should be immune from creative and new ideas to deal with this most fundamental of rights—access to justice.

There is a legal aid industry out there with practitioners dependent on legal aid funding to maintain their professional practices. These circumstances provide an ideal opportunity for the state legal aid commissions to introduce some innovative practices and efficiencies into this industry. A recent call by the Queensland Legal Aid Commission for tenders from the private profession to undertake trial work in blocks of criminal cases in Brisbane, Cairns and Southport has the potential to introduce competition and to hold down costs in legal aid work. New South Wales has also indicated a willingness to try tendering.

A franchise system similar to that operating in the United Kingdom is being tried in Victoria. Legal firms meeting audit requirements are eligible to tender for work, at set prices. Obviously, it is too early to tell whether such innovations will be effective not only to deliver aid but also to deliver it in a cost-effective and responsible way. But the incentive is there and, if the states and territories meet their own responsibilities in their own jurisdictions, the total funding available to legal aid will remain. The point surely is that the current hit and miss system of legal aid funding and aid delivery is not adequately meeting its mark. The taxpayers' legal aid pocket is not a bottomless pit. It is an area which deserves our ongoing attention.

In these recent proposals, the Commonwealth has taken the initiative of targeting responsibility for Commonwealth matters for those needing family law, child support and help with pension and benefit matters. It is time the states and territories were accountable for legal aid delivery for their own law and order matters. The dictates of fairness demand it.