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Justice at a price: critical look at legal aid funding. -

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JIM WALEY: Last year, Australian taxpayers forked out $250 million for a very good cause - to uphold the right of every accused person to a fair trial. That money provided lawyers for more than 400,000 people who couldn't afford to pay for their own defence, yet thousands more were denied a fair go in court because there isn't enough money in the Legal Aid kitty. A good number of them went to gaol not necessarily because they were guilty, but because they were poor. Australia's legal aid system is in crisis. More and more of our disadvantaged are asking for help but fewer are getting it.

Our cover story is reported by Sunday's Helen Dalley.

PAUL HAYES: Good day, Sandra, Paul Hayes is my name, from Legal Aid.

UNIDENTIFIED: Can you tell me the name of the barrister?

PAUL HAYES: I'll try and get you on in the first hour if I can, all right.

UNIDENTIFIED: Is there anything you'd like me to tell the magistrate?

HELEN DALLEY: This is our criminal justice system at work. In suburban courts, on any day, in every State in the country, this is where the high-minded principles of fairness and equality for all, are put into practice.

UNIDENTIFIED: We couldn't get the doctor's report but, look, I'll bat on without the doctor's report.

HELEN DALLEY: This is where each of us ends up when charged with an offence. And for those who depend on legal aid for their only crack at a fair go, this is where the funding crisis is starkly defined.

UNIDENTIFIED: Plead guilty to the criminal damage if you withdraw the discharge missile - sound a fair deal?

JOAN JAMES: First thing in the morning there's just a sea of faces.

HELEN DALLEY: A steady stream of people who need representation?

JOAN JAMES: A steady stream .. definitely need representation.

BERNADETTE KROKE(?): I've got a drama with a woman in custody, with nine separate sets of charges, so I've to sort that out.


BERNADETTE KROKE: So I've got to calm her down, work all that out.

HELEN DALLEY: Legal Aid solicitors like Peter Dochen and Bernadette Kroke are on duty at the courts - foot soldiers, battling on all fronts to give the never ending parade of Legal Aid clients the proper representation they deserve and are entitled to.

ASHLEY: Peter, a young fellow outside, 21, up for stealing and wilful damage.

PETER DOCHEN: Can you get him just to wait outside and I'll see him in a couple of minutes.


PETER DOCHEN:Thanks, Ashley.

ASHLEY: That's great.

HELEN DALLEY: This factory hand could be any average young man. While skylarking he broke off a car antenna, stole a numberplate and ended up here facing court.

PETER DOCHEN: I think it would be better for you in court, with a lawyer, that's my feeling. And I think you probably should either make a contribution to the Legal Aid Commission if we formally assist you, or see a private lawyer.

All right? And what do you say to that?

UNIDENTIFIED: No, no, I'll think I'll pass.

PETER DOCHEN: You think you'll pass?

HELEN DALLEY: But earning only $300 a week, he is one Legal Aid officially shuts out. But the thought of him representing himself fills Peter Dochen with despair and he unofficially helps by getting one charge dropped.

PETER DOCHEN: You then need to explain to the magistrate how you feel about the whole thing: You're sorry; you don't care less; all right? So you're sorry, okay. I presume that you are sorry.

HELEN DALLEY: As dedicated as duty solicitors are, Legal Aid's funding crisis means lack of time and the pressing number of clients make it almost impossible to have more than a cursory relationship with each client.

MARK RICHARDSON: There's a need there for additional resources. Certainly, in my experience, duty solicitors don't have any time for anything else but running between clients and representing them in court.

PAUL HAYES:If I can get you to wait near Court number two at 9.30 I'll grab you. Hopefully, we'll find out whether indeed there's been a legal aid application approved, if not, we'll go in and simply ask for an adjournment for a period of a month.

BRIND WOINARSKI: There you have duty lawyers who do a fantastic job but they are often seeing 15 or 20 people in a day. And they often only have an opportunity to speak to somebody for five minutes or 10 minutes and then go into court and do a job for them. Now, that's not fair so far as the lawyer is concerned and it's not fair so far as the client is concerned.

HELEN DALLEY: So what sort of justice are those people getting?

BRINE WOINARSKI: Pretty rough and cheap.

JOAN JAMES:There can be 20 people in the cells at a time. You cannot build up any sort of rapport with that person because there just isn't the atmosphere to do it. You haven't got the privacy, as you say, to find out what is going on; if they are telling the truth or if they are saying, do they realise what they are saying? So they might be facing gaol without proper legal representation.

PAUL HAYES: My instructions to this date certainly are that there'll be a plea of not guilty entered in relation to the supply of a prohibited drug....

HELEN DALLEY: Paul Hayes fights as hard for this client as he does for many others. Within an hour he has grappled with the finer details and appears before the magistrate pleading for his client's freedom.

PAUL HAYES: Your Worship will also note that there is no suggestion of a failing to appear; there's no suggestion of the not-before-court upon his antecedence. Each and every time that the defendant has been asked to attend court, albeit for serious matters, has nevertheless attended court.

MICK O'BRIEN: And it may well be that occasionally, because of the pressure they are under, a person could have been better represented but that would certainly be totally unconscious. The duty solicitors, once again, wouldn't sacrifice quality for just pressure.

HELEN DALLEY: While most agreed duty solicitors do what they can with limited resources, it's not so for all lawyers in all Legal Aid cases. Just ask recently pardoned, convicted murderer, Aileen Waugh.

AILEEN WAUGH: As far as I am concerned I never had legal representation.

HELEN DALLEY: Is that how badly you think you were represented?

AILEEN WAUGH: Very, yes, very badly.


UNIDENTIFIED: There was evidence of heavy drinking when ambulance men arrived at the house in Pine Mountain Road at Brassall, just before one this morning. There, on the lounge room floor they found 34-year-old meat worker, Stephen Waugh, dying from a single bullet wound from a .22 calibre semi-automatic rifle.

HELEN DALLEY: Aileen Waugh was a Legal Aid client in Queensland, charged with murdering her husband. She faced a mandatory life sentence, yet met her barrister only the day before the trial.

AILEEN WAUGH: I met the barrister for two hours on the Sunday. We went to trial the next day.

HELEN DALLEY: You started your trial for murder on the Monday?

AILEEN WAUGH:Yes, and I met the barrister for two hours on the Sunday.

HELEN DALLEY: Was that the first time he'd contacted you?

AILEEN WAUGH: That's right. First time I ever met him.

HELEN DALLEY: In fact Aileen's case had been flicked on to him at the last minute. According to those in the know this is not uncommon. Aileen was convicted and went to gaol for life. Then another Legal Aid-assigned private barrister failed to show on the morning of her appeal.

AILEEN WAUGH: This particular barrister that I had didn't turn up on the day; left me no instruction to say he couldn't turn up, otherwise I would have adjourned it until he could have made it. But he never rang me .. no nothing .. ended up with another barrister who I hadn't met, who went to court, who must have just picked up my transcript that morning....

HELEN DALLEY: Aileen Waugh lost her appeal, served seven years in gaol in Queensland and then New South Wales, before Attorney-General, Jeff Shaw, had her conditionally pardoned two months ago.

How did you feel you were treated by the whole criminal justice system?

AILEEN WAUGH: Absolutely unfair.

HELEN DALLEY: Ask Robyn Kina too. Another who was dependant on public funds to defend the charge of murdering her violent sexually-abusive de facto.


ROBYN KINA: Then something just snapped. I walked out of the room, I was walking past the kitchen and I spotted the knife on the sink. I walked in, just grabbed it and when he seen the knife he grabbed a chair. I think he was going to hit me with the chair so I stabbed him.

HELEN DALLEY: Robyn was sentenced to life imprisonment and spent five-and-a-half years in Brisbane's Boggo Road Gaol.

ANDREW BOE: All I can say is, a trial at which a person charged with murder spends no more than two or three hours with their lawyers, in the whole time before the trial; a trial that goes for four hours; a summing up of the jury that goes for four minutes - now I would not wish that on anybody.

HELEN DALLEY: Her lawyers hadn't introduced evidence of the history of beatings and anal rape she had suffered at the hands of her husband. The Queensland Court of Appeal finally overturned the conviction declaring justice had clearly miscarried because her lawyers effectively denied her satisfactory representation.

Brisbane solicitor, Andrew Boe, recognised the appalling treatment of Kina by the legal system fought her case and her conviction was eventually quashed.

ANDREW BOE: And I think that's a shameful indictment on this society - that we tolerate that sort of representation for people in her circumstances.

HELEN DALLEY: The injustice to her, was it partly caused by underfunding?

ANDREW BOE: I think entirely caused by the culture of representation that governments suggest should be tolerated by people who are poor.

BRIND WOINARSKI: It can result in people being convicted, who should not be convicted, and it can result in people having far greater penalties imposed upon them than they should have in all the circumstances.

HELEN DALLEY: Is that happening?

BRIND WOINARSKI: I believe it is. Yes.

STUART FOWLER: The whole community needs to be concerned about this undermining of practical equality before the law.

HELEN DALLEY: Last year, Legal Aid Commissions shut the door on 39,000 Australians, a 9 per cent drop from the year before, scrimping funds from governments, they in turn deny a level of access that was once the norm.

CHRIS STANISFORTH: In Australia right now it's best to be rich if you want to get justice.

HELEN DALLEY: There's no other justice for anyone else?

CHRIS STANISFORTH: There is a very limited level of justice provided by the Legal Aid Commissions and the community legal centres throughout Australia.

HELEN DALLEY: This from the Director of the ACT Legal Aid Commission.

So it's a myth to say that even poor people are getting proper access to justice?

CHRIS STANISFORTH:I think it's one of the biggest myths which prevails in our country. Yes, you've got to be very lucky to get legal aid.

HELEN DALLEY: Equal justice to all men, increasingly seems but a grim hope rather than the reality promised when Federal Labor set up Legal Aid over 20 years ago.


UNIDENTIFIED: Taking the law to the people who need it - that's the basic aim of the Federal Government's legal aid program. The Attorney-General, Senator Lionel Murphy, opened another Legal Aid office today in the Sydney suburb of Leichardt.

UNIDENTIFIED: In the broad general sense, to whom are the offices available to?

LIONEL MURPHY: Persons for whom the Australian Government has some special responsibility, such as, newcomers and students and Aborigines and those on social services.

TERRY O'GORMAN: Lionel Murphy brought legal aid up-to-date in the '70s. The state of legal aid in Australia has reached such a poor and, indeed, parlous state, that we need another Lionel Murphy.

HELEN DALLEY: At a recent Australian legal convention, defence lawyer, Terry O'Gorman, slammed the message home to his audience of members of the judiciary and some of the country's best legal minds.

TERRY O'GORMAN: We have to face up to the fact that legal aid in this country, in relation to criminal defence, is stuffed, and we have to do something about it.

HELEN DALLEY: According to many others who concur, the crisis in underfunding is not only in criminal cases but across the board.

RAY RINAUDO: It's very serious. From the end of the '80s and the early 1990 onwards, there's been a significant reduction in the real funds available to Legal Aid Commissions to fund cases, such that a number of the Commissions have had to cut out funding certain types of cases altogether and, in other cases they have had to reduce the fees that are paid to the lawyers to defend those cases, significantly.

HELEN DALLEY: Legal aid funding comes from the Commonwealth, States and interest earned from solicitors' trust funds. As the trust fund monies have dwindled in the last couple of years, State Governments have been forced to begrudgingly make up the difference. The Federal Government has increased Legal Aid Commission funds only incrementally, just to keep pace with inflation.

CHRIS STANISFORTH: But it has not taken into account the dramatic increase in demand for legal services over the period. With the recession, with a lot of social readjustment, we are having a situation where there are much greater demands for legal services, both civilly and criminally, and Legal Aid has not kept pace with that increased demand.

HELEN DALLEY: In fact a report handed to the Government two years ago by the Australian Law Council, concluded, that in order to return Legal Aid funding to its levels of 1987, $50million each year would need to be injected. But what they got in this year's much-heralded Justice Statement, fell far short of that.


PAUL KEATING: So over the next four years, the Government will also be providing an additional $16.8 million to Legal Aid Commissions to provide more assistance in family law and civil law matters.

HELEN DALLEY: Instead of the $100 million needed to restore funds to levels of eight years ago, the Government chipped in with a little over $4 million a year to be divvied up between eight State and Territory Commissions.

Does that fulfil the need?

DUNCAN KERR:Well, there's a very substantial injection of money going into legal aid and it doesn't....

HELEN DALLEY: $16 million.

DUNCAN KERR: ...just go into legal aid but....

HELEN DALLEY: Australia wide [...] substantial?

DUNCAN KERR: ...also into community legal services and to a whole range of preventative programs. And what I've got to say is this: That you'll never solve the problem of provision of legal services simply by throwing money at it.

JEFF SHAW: I think the Federal Labor Government has made a very impressive initiative, a very impressive move, with the Justice Statement. They have expanded legal aid very considerably.

HELEN DALLEY: Considerably! Four million dollars a year right throughout Australia is considerable in your view?

JEFF SHAW: That's a tangible expansion on what has gone on in the past. We, in New South Wales, won't be cutting the legal aid budget, we'll be endeavouring to expand it.

HELEN DALLEY: Do you think you'll be able to get it past the Treasury boffins who apparently keep saying: 'No, no, no'?

JEFF SHAW: I can't pre-empt the budgetary decisions. All I can say is that I am an advocate, over time, of the expansion of legal aid to the community.

HELEN DALLEY: But less than a week after these assurances, the Treasury boffins won. The Carr Government's first budget was a political sleight of hand regarding legal aid.

While Jeff Shaw's office was busy claiming Legal Aid got $4.9 million, most of that was in fact Commonwealth money. The New South Wales Government only contributed one million dollars for Legal Aid to reduce its backlog. Ignoring ever increasing demands on legal aid services, the New South Wales Government gave nothing for new cases.

DUNCAN KERR: I'd like to see the States do more but I understand the funding pressures they're under also.

HELEN DALLEY: Do you think $16.8 million for legal aid services is going to go a long way over four years between eight State and Territory commissions?

DUNCAN KERR: I do. I think it's going to go a very long way.

ALASTAIR NICHOLSON:It's apparent that it's not going far enough. And I know that I had discussions with directors of Legal Aid Commissions today who were saying that they just weren't able to get by with that sort of funding.

HELEN DALLEY: A critic of government funding is Chief Justice of the Family Court, Alastair Nicholson.

Do you think it's time that governments really do need to face up to their responsibilities in this area?

ALASTAIR NICHOLSON: Yes, and particularly in this area.

HELEN DALLEY: What provoked such rare public admonishing from the judiciary is the impact of underfunding on children - innocent third parties in the crossfire of divorce. It's now Australia's obligation, as a signatory to a UN convention, to protect the rights of children. So, in serious cases of parent conflict, the Family Court can order separate legal representation for children to ensure their voice is heard. Last year, the Court ordered that 2,500 Australian children needed that protection.

ALASTAIR NICHOLSON: But the Legal Aid Commissions are telling me that they are going to have to cease funding some of those cases but they will make the decisions as to which ones they fund, even though we say they are cases where they should be represented.

DUNCAN KERR: You don't always have to just add money. You can't throw money at these problems. We don't have taxpayers who are Mothers Teresas either. They expect, if a person is indigent - can't afford legal services - that Legal Aid will be there to help them, but they don't expect that their hard-earned dollars go to support high-income lawyers, for example, on a sort of legal-social security system.

HELEN DALLEY: But that view doesn't help those who may be left out. Many domestic violence, Family Court and civil matters, are refused legal aid as their funds are frozen, particularly by State Governments. Criminal law swallows much of the budget, but even that, say practitioners, is being squeezed. The result, accused people, if they are to get adequate representation, rely on the generosity of lawyers not governments.

JULIE DICK: Are you intending to leave that piece of evidence from the woman about 'are you crazy of what happened'?

HELEN DALLEY: Julie Dick is a Brisbane defence barrister of 20 years experience, who works from cramped, no-frills, chambers. She feels the rates Legal Aid pay sorely test the private profession and can sometimes result in compromise.

JULIE DICK:I think most people who take it on have a philosophical commitment to legal aid work, and I do. And if I need to do more work than what I think I am being paid for from Legal Aid, I will do it but in the scheme of things it must be so that corners are being cut because of the lack of funding.

HELEN DALLEY: For instance, in a trial where 17 hours of undercover tapes formed part of the prosecution's case, the defence barrister involved needed to spend double that time to meticulously listen to those tapes.

JULIE DICK: It would have taken 34, 40 hours to listen to the tapes. That doesn't include the other preparation, which is the other evidence that they'd have to read, seeing their clients, and the preparation fee was $320.

HELEN DALLEY: So in that case, those hours weren't put in?

JULIE DICK: I suspect .. well, I know they weren't put in, yes.

HELEN DALLEY: So that's a compromise in itself, isn't it?

JULIE DICK: I don't think it can be described as anything but a compromise. But I think it would be a lot to ask even the most committed Legal Aid lawyer to put aside a week of their working time for $320.

HELEN DALLEY: But if politicians won't listen to the concerns of defence lawyers, they should be convinced by the blunt message from the opposing side - the prosecutor.

The New South Wales Director of Public Prosecutions, Nick Cowdery, is worried by what he calls 'the gross funding imbalance between the prosecution and the defence.'

NICK COWDERY: If it goes on as it is now, there is the real risk of injustice being occasioned, there is the risk of proceedings being prolonged beyond the proper and reasonable hearing time, there is the risk of further appeals being taken from decisions and the possibility of re-trials.

HELEN DALLEY: So that's all adding cost to the system.

NICK COWDERY: Of course, it is. There are real financial savings that can be made in the long term by providing funding for equal representation at the beginning.

HELEN DALLEY: The DPP drops the challenge squarely in the politician's lap.

NICK COWDERY: If those sorts of problems are not addressed they will get worse. People's confidence in the ability of the courts to do justice to the parties will wane and we'll all be very much poorer for it.

HELEN DALLEY: Such concerns came into sharp focus in recent months with the case of Ivan Milat, the man charged with the backpacker murders in New South Wales. As we'll see in part two, many believe that his battle to receive more adequate legal aid funding is symptomatic of inequities rife within the system.

NICK COWDERY: To say that everyone is equal before the law, is in reality, an utter falsity and an utter joke.

HELEN DALLEY: In June last year, in the murky pre-dawn hours, squads of police prepared to raid the house of Ivan Milat, the man they suspected of killing seven backpackers. The military-scale operation was the culmination of months of work by hundreds of police using limitless resources. It graphically illustrated the formidable forces the State can bring against one of its citizens. But as we'll see, with such an array of police power, how could any accused person reasonably defend themselves? The measure of fairness and justice in our society, so it's said, is how we treat people accused of serious crimes: People presumed to be innocent until proven guilty.

When road worker Ivan Milat was charged with seven murders and one attempted murder, the case was set to be one of the most notorious and closely scrutinised in recent history. In the beginning Milat had private money to pay lawyers but that dried up in the months leading up to committal. The Legal Aid Commission was called in and, from the outset, was forced to adopt a penny-pinching attitude due to insufficient funds from Government.

JEFF SHAW: I believe that criminal defendants ought to be entitled to representation but I think that the rulings as to what is an appropriate amount of representation ought to be made by an independent Legal Aid Commission.

ANDREW BOE: I don't think that a person charged with any offence should be looking at what a bureaucrat is prepared to offer. A person charged with a serious offence looks at what is necessary to properly represent that person in a trial.

HELEN DALLEY: While the police investigation and Crown case has so far cost an estimated $14 million, the disputed amount to defend Milat, comes down to less than $100,000; a trifling sum for a trial that could last six months.

ANDREW BOE: The offer to me by the Legal Aid Commission - it shouldn't be seen as an offer to me - it's an offer to Mr Milat, as to what access to adequate representation he can obtain. In my view, the offer to Mr Milat was insufficient to adequately represent him.

HELEN DALLEY: In his proposal to Legal Aid, Milat's solicitor, Brisbane-based, Andrew Boe, laid out exactly what he believed was needed to prepare and run the defence, based on the complexity of the Crown's case. For example: 500 witness statements, 300 exhibits, 200 pages of depositions and 14,000 pages of subpoenaed material.

You've had a chance to at least peruse the first proposal put by Milat's lawyers for their defence. Do you think it was reasonable?

BRIND WOINARSKI: I think the proposal they put was not only reasonable but a sensible one for the defence in that case.

ANDREW BOE: I am not talking about rates for lawyers, I am talking about access to the appropriate costs associated. For example: expert witnesses, a proper time to prepare a case, the whole parcel as it were, was grossly inadequate in my view.

HELEN DALLEY: Legal Aid either rejected or cut back Boe's proposal. For example: Boe asked for a conference with his client each day of the trial; Legal Aid would only pay for two a week. As for experts; the Crown will fly in a number from overseas, but Boe is allowed only two from within Australia and; Boe asked for a transcript of the trial's proceedings for each of three lawyers but Legal Aid allowed only one copy to be shared by all.

BRIND WOINARSKI: I think it's inadequate, but I suspect that where the real problem here is that the governments have to make available to Legal Aid Commission, sufficient funds so that the Legal Aid Commission can employ lawyers to adequately represent people and with similar funds available to them as the prosecution have.

HELEN DALLEY: It was so petty in the beginning that Legal Aid allowed only $35 a night each for the Brisbane lawyers to share accommodation during the trial. While Legal Aid declined to be interviewed, the Attorney-General took up their cause.

JEFF SHAW: But I would have thought you can stay in Sydney for something like that sort of fee....

HELEN DALLEY: Where? In the Travelodge?

JEFF SHAW: I think at a reasonable motel you could stay at that sort of rate and....

HELEN DALLEY: So you think the barrister and a solicitor should have to share accommodation during a big trial like this?

JEFF SHAW: I don't think they should share the same room but I think....

HELEN DALLEY: You wouldn't, would you?

JEFF SHAW: Look, I think....

HELEN DALLEY: This was what was being offered. Now, you wouldn't have accepted that would you?

JEFF SHAW: I think there ought to be separate rooms in a motel.

ANDREW BOE: I don't ask for a Rolls-Royce service. I ask for the ability to properly represent his case. We're not getting that and I can't do the trial unless we get given that. Mr Milat deserves more than that. Everybody in Australia deserves that.

HELEN DALLEY: While Legal Aid did make modest amends to certain conditions, the case reached an impasse. The Government was adamant that Milat's lawyers would not get further concessions. Andrew Boe applied to the Supreme Court to adjourn the trial until adequate funds were given.

MURRAY TOBIAS:The day before it went to court I offered my services, as President of the Association, to attempt to mediate between Milat's representatives and the Attorney-General. I was unsuccessful.

HELEN DALLEY: What happened?

MURRAY TOBIAS: The Attorney-General, through the Solicitor-General, indicated that they didn't propose to move in relation to the offer that had been made and that was the end of it.

HELEN DALLEY: So there was to be no leeway, no flexibility, no more negotiation?

MURRAY TOBIAS:That's correct.

HELEN DALLEY: Due you think there should have been more flexibility, more room to negotiate?

MURRAY TOBIAS: Yes, I do. I think that, in special cases - and the Milat case was clearly a special case as a consequence of its length and complexity - that they deserved to be treated differently to the run-of-the-mill criminal trial that was going to last a couple of days.

HELEN DALLEY: The court proceedings came down to arguments about daily rates offered to Boe, his senior and junior barristers. And it provided a rare glimpse into the power Legal Aid wields as the main employer of private lawyers in criminal law.

The market rate for a senior solicitor in court is $1,250 a day. Legal Aid has traditionally paid 80 per cent of the market rate. But their offer to Andrew Boe of $586 a day is less than 50 per cent of the going rate.

Would you have done it for that offer?


HELEN DALLEY: Definitely not?

TREVOR NYMAN: No, not for that offer. I wouldn't have been able to abandon my practice in a way that it would be necessary for the senior solicitor to do for such a length of time and still be able to meet the office overheads.

HELEN DALLEY: The picture becomes more preplexing, when the total amount Legal Aid is offering Milat's team is added up.

Based on a 15-week trial, including all preparation, their offer is $208,000 as against the prosecution and police costs of around $14 million. But Justice David Hunt, the Supreme Court judge who will hear the trial, felt that that was not sufficient to fairly defend Mr Milat. He came up with a compromise urging Legal Aid to increase their offer to $280,000, a difference of only $72,000, for the defence team of three.

MURRAY TOBIAS: The rates that they are asking for and the rates that Justice Hunt 'awarded', for want of a better term, were to say the least modest.

HELEN DALLEY: But what makes Legal Aid and the New South Wales Government's position on Milat even more untenable, is that over the border, the equally over-stretched Legal Aid office in Victoria, would pay the defence team almost double.

MICK O'BRIEN: According to our scale, the amount we would pay would be approximately $400,000.

HELEN DALLEY: Reservations that the amount offered was not enough to ensure a proper defence and could therefore result in an unfair trial, convinced Justice Hunt to adjourn it until the Attorney-General provided those funds. But the Government was immovable.


JEFF SHAW: We propose to appeal against that decision to the Court of Criminal Appeal. My view is that where a government determines that legal aid is reasonably provided, then really the separation of powers means that it's not for the courts to ask whether that's adequate, but it's for the Government to determine what an adequate legal representation is.

HELEN DALLEY: The Court of Appeal, while showing some sympathy for Justice Hunt's desire to resolve the problem, nonetheless agreed with the Attorney-General and overturned Hunt's decision. They found the law did not allow the judge to interfere in the affairs of New South Wales Legal Aid. But last week, Milat's lawyers in turn, lodged an appeal with the High Court.

TERRY O'GORMAN: I think any fair-minded person in this country would say that if Milat is not entitled to the same sort of money resources as those who are trying to get him found guilty, then what sort of justice do we have? It's not even-handed or equal justice.

HELEN DALLEY: Further unfairness lies in the disparity between what governments pay lawyers representing people in Royal Commissions and what Legal Aid can pay to represent people in criminal trials. For instance, in the Wood Royal Commission into police corruption in New South Wales, the total budget for lawyers representing allegedly corrupt police, is astonishingly open-ended. The previous Liberal Government expected the whole commission to cost $100 million, while at the poor end of town, Legal Aid's standard rate for solicitors in a Supreme Court trial, is $430 a day; at the Royal Commission the Government's paying solicitors $750 a day. It's a disparity the New South Wales Attorney-General is determined to fix, but not to the profession's liking.

JEFF SHAW: I think the disparity point is a reasonable point that you make. I would be concerned, over time, to equalise Legal Aid rates with those which are offered in other courts and tribunals.

HELEN DALLEY: Inequities dealt to citizens charged with crime becomes so much more poignant when compared to the way politicians treat themselves. It's hard not to conclude hypocrisy. When a politician appears before a Royal Commission money is rapidly found to mount the best defence possible. Without quibbling, governments regularly pay top QCs well above what Legal Aid can pay and Attorneys-General certainly don't argue in court against such payments. It would appear that defending a politician's reputation is valued more highly than defending a person's liberty.

Health Minister, Carmen Lawrence's legal team, at the recent Marks Royal Commission in Perth, reputedly cost taxpayers $10,000 a day.

ANDREW BOE: They got access to the dreamteam. And it's stark and unfortunate that most ordinary people don't get anywhere near that.

HELEN DALLEY: But Federal Justice Minister, Duncan Kerr, is incensed by such a comparison.

DUNCAN KERRY:...that that it really was not a legal matter. It was a show-trial process, a political stunt, funded by the Court Government for some millions of dollars, cost of millions of dollars to the State. What they have done really....

HELEN DALLEY: Why don't you answer the question about you own colleague who was able to get Commonwealth Government money paid for her legal fees, supposedly to the tune of $10,000 a day. She got a top QC.

DUNCAN KERR: Look, I just make the obvious point to you, that that was a political stunt. It required a response. I mean, she was being set up by the Court Government in order to drag her down.

HELEN DALLEY: So what you're saying is, that to protect her political reputation she gets the right to have access to higher paid lawyers than a person who has to go through Legal Aid may be facing life in gaol.

DUNCAN KERR: Regrettably, a State Government that is prepared to spend millions of dollars to unfairly and improperly damage the reputation of a senior Cabinet Minister, requires a response.

HELEN DALLEY: However, New South Wales Attorney-General, Jeff Shaw's response, recognises the hypocrisy of such a position. He claims he'll take action, which is not likely to win friends among his colleagues.

JEFF SHAW: My own view about any legal aid given to politicians will be to regard that application in parity with other people seeking legal aid. Now, that might make me unpopular with colleagues on either the Opposition or Government benches, but my own view will be to treat them in a way which is equal to other applicants for legal aid.

HELEN DALLEY: Politicians may well cling to the view that there are just no votes in giving more money to criminal justice allowing Legal Aid to drift further into financial decline. If that's so, then our fundamental right to be treated fairly before the law, may simply be the expression of a pious hope.

STUART FOWLER:Ultimately, if the administration of justice fails, then the rule of law fails. The rule of law does depend quintessentially on the public's perception of the administration of justice, and if that perception is destroyed, so is the rule; and if the rule is destroyed, so is democratic society.

JIM WALEY: Helen Dalley, with that report.