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Wednesday, 10 October 1973
Page: 1853


Mr LAMB (LA TROBE, VICTORIA) - In speaking in this debate on the estimates of the AttorneyGeneral's Department I refer to Division 120, items 3.03, 3.04 and 3.06 which relate to legal aid. There are certain basic rules of democracy and freedom which state that there should be equality under the law but it is often overlooked that to obtain equality under the law we also need equality of access to «h» law if we are to protect those freedoms. A recent study carried out by the New South Wales Bureau of Crime Statistics and Research indicates that there is a law for the rich and a law for the poor. The figures concern 28,813 documented petty session court cases held in the first 6 months of last year. The Bureau divided them into cases where people were represented and where they were not. It took into account verdicts of not guilty, dismissal, recognisance and imprisonment with or without fine. The Bureau dealt with cases where there were no previous convictions and it found that a person who had legal representation had a 61 times better chance of securing an outright judgment in his favour. Represented people had a 3 to 1 advantage for dismissals. Unrepresented people, on the other hand, were 3 times more likely to be sent to prison. Threequarters of those found not guilty were represented but 9 out of 10 sent to prison were unrepresented. I conclude that these figures of the New South Wales Bureau of Crime Statistics and Research show that a double standard does operate.

I turn now to some comments made 02 the Australian Broadcasting Commission on 16 July last year by Dr Paul Wilson, a lecturer, I think in sociology at the Queensland University, who stated that the scarcity of legal services offered to the poor and the noi so poor in this country are in fact realistic. He said:

My second major criticism of Australian lawyers relates to the scarcity of legal services offered to the poor and not so poor in this country. In fact the record of Australian criminal legal aid is distinguished only by its inadequacy. All over the country accused persons still go unrepresented in criminal cases simply because they do not qualify for legal aid and cannot afford their own lawyers. Explicit or implicit means tests do not allow legal services to be given to the very groups in most need of them, and I'm talking about men on the basic wage, deserted wives and working men with large families. These people are more likely than others to be victims of slick salesmen, of fraudulent hire purchase agreements, of high divorce costs . . .

He continued:

If the legal profession and governments are really concerned with the legal rights of the weaker, or indeed all, members of Australian society then the limitations of Australian legal aid schemes will have to be recognised.

Last year the previous Government to some extent recognised that situation. In Canberra in March last year it finally passed an ordinance so that the legal aid scheme which works in collaboration with the profession on a reduced fee basis could be extended to those in need of it. The present scheme works on a reduced fee basis and is subsidised by the Government to the extent of 100 per cent of the reduced fees. This will continue until such time as there are sufficient moneys in the fidelity fund of the legal profession when payments for legal aid will be made from that fund. Under the present scheme 237 applications for legal assistance had been received in the first 4 months of its operation.

It is pleasing to notice that the amount provided for the Attorney-General's Department under this heading in the Appropriation Bill has been increased to $120,000 but the situation in the Australian Capital Territory which allows so many people to be assisted is not extended over the whole of Australia. It is not extended to the same extent to those about whom we heard in the last debate - the Aboriginal population of the Northern Territory. It is not readily accessible to the ordinary suburban people in the lower socioeconomic groupings throughout Australia outside of the Australian Capital Territory. In Victoria, for instance, the Legal Aid Committee does commendable work in the field of civil litigation, such as divorce, maintenance and landlord and tenant matters and the like. But in practice people facing criminal charges in magistrates courts generally are unrepresented. The Public Solicitor is empowered to provide legal aid to people without means in criminal cases before Courts of General Sessions and the Supreme Court, but a Master of Arts thesis done at the University of Melbourne last year indicated that about 40 per cent of the people who applied for assistance then received none. I am pleased to report that that has since been reduced to about 25 per cent to 30 per cent. But it still is not good enough for a government - State or Federal - to say that there is equal access to the law.

Although the criteria used by the Public Solicitor for refusing assistance are not entirely clear, they seem to involve an assessment of whether an applicant has a reasonable prospect of being acquitted. People with criminal records generally are denied legal representation even though such representation would lead to more acquittals, would allow the accused's case to be presented in a more favourable light and would tend to lead to more sentences which in part are concerned with the rehabilitation of the people concerned. It is obvious that we need to have equal access to the law if we are to have equal treatment under the law.

The position still remains that a man of low occupational status has more chance of being dealt with severely by our courts than has a man of high occupational status. The reason is, of course, that the poorer man cannot afford legal representation. Usually he does not know that a public legal aid system exists. Quite often he cannot afford even the most modest fines that are imposed and thus is forced to work out his punishment by actual imprisonment. In many cases such a person suffers a penalty before being brought to court because he is unable to obtain bail, whereas a more educated man would know how to obtain it. We need to make a determined effort to extend the availability of the advantages of the Australian Capital Territory system of legal aid, through either salaried centres or a bureau composed of the legal fraternity, to people throughout Australia.

I do not know what would be the best means of doing so. Surely that should be the work of an expert committee. It is extremely satisfying to know that the Attorney-General (Senator Murphy) in fact has established such a committee. In announcing the establishment of the committee, the Attorney-General said that it would examine all aspects of legal aid in Australia, including areas of need, methods of providing and financing legal aid, and the supervision of the actual expenditure. When the legal advice centres begin operating they are expected to be staffed by salaried lawyers working in close co-operation with community welfare organisations, established legal aid schemes, referral centres and the private legal profession. I look forward to the findings of the committee and the extension of the fine services provided in the Australian Capital Territory, although they are the subject of some criticism at present, to the rest of Australia.

A constituent who was on a pension and whose assets were tied up in his own house - essential shelter - came to me with a letter from the Legal Aid Committee in Victoria saying that he was expected to pay $100 and to accept in writing the condition that he, in effect, mortgage his own house in case the case went against him, and only then would a solicitor be appointed to act for him. In addition, he was requested to make an immediate payment of $100 towards the legal costs. He could not lay bis hands on that amount of money, so he could not accept the legal aid; and, of course, he could not afford the alternative of private legal representation. Unfortunately, he lost his case because he failed to defend it. It is with pleasure that I point to the increase in the amount of money being made available for legal aid in the Australian Capital Territory. I look forward to the extension of the system in the Australian Capital Territory to the States of Australia.







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