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Thursday, 13 October 1983
Page: 1706


Mr SPENDER(10.34) —The Family Law Amendment (Legal Aid Costs) Bill has already passed through the Senate and it was, in general terms, supported by the Opposition in the Senate. It was pointed out by Senator Durack that the purpose of the Bill is to enable the Government either to promulgate regulations or to make grants subject to conditions in the family law area, the purpose of which is to ensure that private legal practitioners acting in legally aided matters under the Family Law Act are bound by an Australian-wide scale of fees. The significance of the Bill lies in the great importance and the dominant position that family law cases have in our system of legal assistance.

The reasons for that were pointed out by the Attorney-General, Senator Gareth Evans. He pointed out two things. He pointed out first, how costs are increasing generally in legally aided matters and, secondly, the very high proportion of costs in legally aided matters where Commonwealth funds are provided which are taken up by family law cases. Senator Evans also pointed out that while Commonwealth payments to legal practitioners acting in legally aided matters have risen from $14.69m in 1979-80 to $32.426m in 1982-83, a cumulative increase in real terms of around 64 per cent. The cumulative increase in legal aid cases referred to private practitioners in the same period increased by only 28 per cent. So while the Commonwealth is spending more money it is not getting a proportionate increase in cases referred and, of course, dealt with by the private profession.

The dominant position of family law in legally aided matters is very clearly made apparent when one looks at the figures for 1982-83. We see that $32,426,000 was spent by the Commonwealth in payments through the Australian Legal Aid Office and the legal aid commissions to private legal practitioners. Of this, $ 20.3m or 63 per cent was expended in connection with family law matters. So family law matters are roughly taking up two-thirds of the funds spent by the Commonwealth on legal aid. These trends, that is, a general trend in increasing costs in the private profession and an increase in legal aid generally, will not be short term trends. I think it is of critical importance to understand why, with reference to this Bill, costs are increasing and are likely to continue to increase in family law cases.

In the first place, there is the undeniable social fact that there is a general upward trend in the breakup of marriages. None of us can say when that trend will level off but there do not appear to be any signs that it is levelling off. Secondly, costs of the professions are generally on the increase. All the costs of rooms, staff, a proper law library and yearly payment for subscriptions to keep oneself informed about the law are on the increase. It is my impression, gained over 19 or 20 years of practice at the Bar, that those increases are generally ahead of the yearly increases in the consumer price index. Of course, somehow or other the increase in the cost to the legal practitioner has to be met if he is to be in a position to provide a service and to get a decent living from his work.

Thirdly, wherever a government provides a subsidy for a service, the potential always exists for increase in use of that service and for abuse of the subsidy. The reasons for increase are perfectly plain. Very often there is a genuine need , as there is in this case, for some form of assistance. People are in need and people who would not otherwise be able to go to the courts are able to go to the courts because assistance is provided. So the provision of the subsidy promotes the service, and that, I suspect, is an increasing trend. At the same time, we see abuses take place where the Commonwealth provides a subsidy. We all know that that is a fact of life. there is no particular reason why it should not apply to the legal profession. After all, the legal profession is made up of the same kinds of human beings who make up any kind of profession, or who provide any form of service.

Just as we have come across problems in relation to the medical profession, so we find some problems in relation to the legal profession. They would arise in the administration of a system and in delivery of the service, particularly where, in delivering the service, one is not concerned with a client's money, but is being paid effectively by the Commonwealth. There is a tendency in those circumstances not to be quite as careful about how the money is spent; a perfectly natural tendency perhaps. In my view that will fuel this trend to an increase in costs within the family law jurisdiction.

The Law Council of Australia pointed out in the submission that it put to the Attorney-General that in its view, and rather than introduce an Australian Legal Aid Office scale, there was an alternative means of reducing the overall legal aid budget. Its principal suggestion was that greater attention should be given by legal aid bodies to the opportunity to obtain increased contributions from legally aided persons. I think that is a very sound recommendation for the reason that if the person who is getting the benefit of the service has to provide a contribution to that service, and if attention is paid to ensuring that the right kind of contribution is obtained from the person who gets the benefit of the service, the odds are that one will get closer attention to how the funds are spent, not just the private funds of the person who is getting the benefit, but the funds of the Commonwealth at the same time.

I would like to make a more general observation about the family law jurisdiction. When we see a growth in specialised jurisdictions where litigation is subsidised-I refer particularly to the family law jurisdiction and to the workers' compensation jurisdiction-there does seem to be a tendency within those jurisdictions to grow more rapidly than other jurisdictions. I think it is evident that some kind of constraints are necessary. Whilst there might be argument as to whether what is proposed is right, certainly constraints of some kind are necessary in relation to a specialised jurisdiction such as the family law jurisdiction. It is worthwhile remembering that when a specialised jurisdiction is subsidised, it is likely that people will be attracted to it. Some people will be attracted to it because they can look to a fairly reliable source of income. When this takes place one quite often finds that the jurisdiction does not work as efficiently as it should. In saying that, I do not wish to be critical of family law practitioners but I do not share the confidence expressed by the Attorney-General in his second reading speech when he said:

Many of the competent family law practitioners are comparatively young lawyers who are committed to assisting persons with family law problems. These young practitioners quickly develop the expertise required to handle complex family law matters and acquire the skills necessary to direct their clients towards an appropriate settlement.

Speaking from experience and observation, I doubt how quickly skills can be acquired to advise on and to handle very complex family law matters. My own experience leads me to think that it takes quite a few years before the competence is developed in most practitioners to deal with complex cases. The reason for that is very simply that in law, in presenting cases, experience counts more than anything else and one gains experience only by time and practice.

In conclusion I make some general observations. I agree with the Attorney- General when he says that he does not propose industry assistance to the private professions. Whilst he does not propose industry assistance, the continuing involvement of the private professions in the delivery of legal services and family law cases is not only welcome-the Government has embraced its involvement -but, I should think, essential, because of the vast reservoir of professionalism that is to be found in the private professions. Whilst I believe that the private professions need to be involved I think it is necessary to monitor trends within the profession, to understand, so that one can come to a better view of things in a year or two, who are the specialists, which firms specialise and perhaps what percentage of income is derived from subsidised work . There is, I think, a danger that some members of the private professions could become unduly dependent on subsidised work. That is not only unwise for those practitioners, as it means that effectively they put most of their apples in one barrel, but also generally unwise for the profession, I think, if elements of it become too dependent on subsidised work.

The Attorney-General referred to the need to examine other options. I quite agree that there is a great need to examine other options. It seems to me that at times our legal system is getting out of control-that applies to our courts as well-and that cases which one would hope could be dealt with quickly and expeditiously are not, very often for reasons which are beyond the control of those concerned, including the courts, dealt with quickly and expeditiously. We all look for that chimera, the simple solution. I do not believe that there are any simple solutions to the present very complex system but we may need to look to a radical restructuring of how family law cases are dealt with, just as I think we need to look to a radical restructuring of the way in which the workers compensation commissions in the various States function. It may be that we can to an extent delegalise the systems. I say that as a lawyer, being aware of attempts to delegalise various systems such as the conciliation and arbitration system which seemed to result only in those systems becoming even more complex, even more extensive and even more time consuming. It is possible that something can be done in the nature of a radical alteration to the existing system.

The legal system, the courts, the administration of justice and all the supporting apparatus are really foundational to our democracy. From time to time we are very critical of how they work, whether it be the courts, judges in particular cases, the legal system generally, time delay or cost, but criticism is the hallmark of our system.

Any citizen who needs to have recourse to a court can have recourse to a court, hope to have his case dealt with quickly and expect to have his case dealt with fairly. No one can ensure that the result will always be the right one. Of course, mistakes take place in any legal system. We try to ensure that as far as possible it is right, it is quick and it works fairly. Yet we find ourselves now it seems to me in a time when only the very rich, the very well off or those who are subsidised can afford to litigate complex cases. If one looks at the cost of a case which will last four or five days and which requires very careful preparation, Queen's Counsel, a junior, a solicitor and a lot of work, one sees that it is quite beyond the pocket of the ordinary citizen. If somebody comes to me and says 'Look, Mr Spender, I want you to have a look at this case and tell me what you think the prospects are' I must consider not only the merits of the case and make a judgment about my client's prospects but also think carefully about and advise him about what the cost of that case will be to him. On many occasions I have had to say to clients-and I know that other barristers and solicitors have been in exactly the same position: 'Well, you have a good case and the odds are that you should win, but I have to tell you that the cost is such that I think you should seek to settle because, if you do not win, the cost will be very heavy. Even if you do win you will not recover all your costs from the other side and a substantial part of your costs will have to be paid by you' .

I think it will be a continuing problem in our society to make sure that the doors of the court remain open not just to those who are wealthy or very well off, not just to those who are subsidised such as those within the workers compensation jurisdiction who are subsidised by unions and those within that jurisdiction who are subsidised by insurance companies, and not just to those who go to the family law courts and get a Commonwealth subsidy, but to all citizens. This again requires a great deal of thought by practitioners and by governments because when the time comes, if it ever comes, that the courts are simply beyond the average citizens because they cannot afford the cost, that would be a sad day for our society. It was once observed very cynically or perhaps very realistically many years ago by an English lawyer, if I recall correctly, that the courts are open to everyone, like the doors of the Ritz Hotel in London. I believe that because of widespread legal aid that observation is no longer as accurate as it once was, but it remains a fact that those who are not legally aided, when the stakes are comparatively high and when the costs are going to be equally high, are often in the position of having to settle for less than they would have got had the case been fought, for the simple reason that they cannot afford to take the chance of losing. That is a trend within our society which I do not wish to see go any further.

To sum up, therefore, we support the Bill. There has been some criticism of it of a general kind by Senator Durack. One needs to monitor the guidelines which have been laid down in the Bill. One needs to monitor how successfully those guidelines operate. We need to look at all times for ways to make not just the family courts but all courts open to all citizens at all times.