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Tuesday, 16 November 1976


Mr LIONEL BOWEN (Kingsford) (Smith) -In July 1973 the Labor Government established the Australian Legal Aid Office. The real purpose of its establishment was to assist people who were disadvantaged and those who were in need, as well as many others. By November 1975 the Labor Government had established offices in all State capitals and in 33 regional centres. At the same time it foreshadowed that another 52 offices would be established within a short space of time. It is significant that statistics compiled of people using the service who were interviewed show that 2 1.5 per cent of them were pensioners and 8 per cent were migrants. Further, the Office provided a general problem solving service without the imposition of any means test. One can see from that that there was an established need for this service. It particularly assisted those who were disadvantaged. As has been said, the real advantage is with those in the community who are affluent and not those who are disadvantaged. If one is disadvantaged one is not able in the main to seek legal assistance; nor does one think that one can afford it. A report published by the Director of the New South Wales Bureau of Crime Statistics and Research indicates that a person who is legally represented has 6 times the likelihood of obtaining an acquittal as has an unrepresented person.

What is the position as at this day? I now wish to make out a case to show that the present Attorney-General (Mr Ellicott) has succumbed to the dominance of the Treasury and, if I may say so, the directions of the Prime Minister (Mr Malcolm Fraser), in extinguishing the Australian Legal Aid Office. The hopes and expectations of the people of Australia have been dashed. What is the evidence for this? Dismantling is already taking place in Western Australia. The AttorneyGeneral has travelled the country apparently negotiating- secretly, one would thinkarrangements whereby States can take over the ALAO's functions- in other words, they will be running legal aid- and indicating to them that unless they toe the line they will not get any Federal funds. In the early hours of last Friday morning- at 3 a.m., no less- the Western Australian House of Assembly introduced a legal aid Bill for that very purpose. It seeks to set up a commission. That commission will take over the ALAO's functions in that State. The Commission is to be run by the profession itself. Consumers and other people, such as legal aid officers- even the Federal Government, which is to be represented by one commissioner- will have no say in that matter, despite the fact that there will be Federal funding in the provision of legal aid in that State.

Western Australia has been disposed of in accordance with the Attorney-General's views.

What is happening in the rest of the States? I am advised that, as a typical example of cooperative federalism, a similar situation has arisen in South Australia. South Australia had the choice of either participating in a nationally co-ordinated legal aid scheme or not getting any funding at all. The Attorney-General's slow strangulation of the Australian Legal Aid Office will mean that there-will be no required services for those people in need. The only alternative for the South Australian Government was to cooperate in the setting up of some form of commission or not to have any funds from the Commonwealth. At least we can be sure that in South Australia's case the scheme will not be a complete sell-out to the legal profession, as was the case in Western Australia. On a recent visit to Tasmania the Attorney-General attempted to instil confidence into the Australian Legal Aid officers. Did he succeed? I suggest that the reverse was the case. The result will be further dismantling of the Australian Legal Aid Office. People committed to extending social justice in the community are to be put out of work.

No one is convinced by the AttorneyGeneral's reassurances. We all know that when one starts to curtail, to abandon or virtually to restrict the provision of finance one causes instability and unemployment and one therefore gets no real stability in that scheme. Let us look at the evidence of that as it applies to Tasmania. On 12 November the Australian Legal Aid Office Staff Association issued a memorandum in which it stated:

The Spokesman informed the Attorney-General that the staff association was extremely upset and concerned at the lack of consultation as to the proposed form of future legal aid services and at the fact that staff members had not been given any information at all as to the progress of those negotiations.

Another matter mentioned in the memorandum was this:

The Attorney-General was informed that the staff associations considered that the consequence of forming a Tasmanian Commission to provide legal aid services in Tasmania would be disastrous in that:

(   i) it would lead to a desertion of all competent staff.

(ii)   it would be impossible to recruit competent staff to the commission.

(iii)   the lack of competent staff would in turn grievously and adversely affect the provision of legal aid to the disadvantaged people of Tasmania.

What is the position in Victoria? There is one office which is located on the tenth floor of a rather magnificent suite of offices in Collins Street. It is rather ineffective in coping with the legal aid needs of the community in Victoria. Is it the intention of the Attorney-General to hand the legal welfare of Victoria to the legal society there which has, if I may say so, an appalling track record when it comes to legal aid, selfinterest being the main motivation? That is the society which was prepared to go to the High Court and challenge the validity of the Australian Legal Aid Office being established in Victoria. It obtained a fiat of the Victorian AttorneyGeneral for that purpose. I am happy to report that that action has been discontinued. The Victorian government and the legal professional bodies nave neglected legal aid so badly that the community there has had to set up its own voluntary legal aid service. This has been done in Fitzroy and it has done a splendid job. There is a great demand for its service and it needs more assistance. In view of this performance surely the Commonwealth Attorney-General would not suggest that professional bodies and State governments are the only appropriate bodies to administer a Victorian legal aid commission?

Let us look at New South Wales where perhaps the problem is not so acute because in New South Wales there has been for some years some real legal aid scheme in the form of the Public Defender and the Public Solicitor. They have a full salaried legal staff which operates very effectively and very efficiently. The Commonwealth Attorney-General, by continually refusing to co-operate in negotiations with New South Wales, is denying the people of that State access to legal aid in Federal matters, and very importantly m family law matters. On many occasions in this Parliament we see the AttorneyGeneral stand and hear him complain that the New South Wales Attorney-General will not write to him. His plea is: 'Write me a letter, Frank. I want to hear from you'. That will not solve the problem.

We want to see an effective legal aid system in all States, one which is properly funded by Federal funds. Real dominance in this field is exercised by the Treasury which is being so mean and miserly in respect of this matter that it is indicating that there is going to be only a small portion of funds allocated and that has to be enough. We get heartily sick of the Attorney-General's excuse that there is something wrong with State Attorneys-General, such as in New South Wales for example, and therefore we do not get an effective legal aid system. Let us put the responsibility where it lies, fully on the Treasury and fully on the Prime Minister. I would remind the House that the Prime Minister said in the Budget debate on 26 August last year when he was Leader of the Opposition that his Government would abolish legal aid. I think this is being carried out now by stealth rather than in an open fashion.

The Attorney-General is not able to admit yet that in New South Wales a former President of the New South Wales Law Society Mr Loxton, has been appointed, or it has been suggested that he be appointed, to inquire into the Sydney operations of the Australian Legal Aid Office. The Attorney-General has not admitted this yet; obviously it has been leaked to the Press. That Society has been anxious to promote its own scheme. I might say that this is happening against the views of the New South Wales Government. I am not being personal and Mr Loxton has his own views. The New South Wales Attorney-General already is conducting an inquiry into all aspects of the legal profession. It is somewhat of an insult to think that this Government is overriding that situation and suggesting that somebody else be appointed to inquire into another aspect of legal aid in that State. Speaking of Mr Loxton, the Commonwealth Attorney-General, in reply to a question without notice on 10 November, stated at length that Mr Loxton was not an opponent of the salaried service and showed a real sympathy for setting up legal aid offices.

In that context the Attorney-General mentioned Mount Druitt as an example. I want to get the record straight. The office at Mount Druitt is not an Australian Legal Aid Office but a creation of the New South Wales Law Society. It is operated by one man and it channels a fair percentage of its work to the private profession, as it has to do. It has been criticised on the basis that it does not refer eligible people to the Australian Legal Aid Office. In order to straighten the record further, Mr Loxton said in his 1975 presidential address to the New South Wales Law Society that he was prepared to plead guilty to seeing all significant legal aid work being done by the private profession'. Mr Loxton 's statements are on record. It is wrong for the AttorneyGeneral to claim that Mr Loxton is without hostility to non-private professional dominance in legal aid.

Having seen the chaos and fragmentation caused by the dismantling of the Australian Legal Aid Office, inevitable disadvantages flow. Separate State bodies mean that differences will grow between means tests and accessibility of legal aid to the community. Jurisdictional difficulties will arise. There will be high administrative costs. Legal aid must be available on a national basis. One example would be the basis of Medibank. We will have forum shopping arising where people move interstate to commence litigation because they would not be eligible for assistance in their own State. There could be cases where one party in an action is granted legal aid in one State while the other party is not able to defend because of the stricture' of a legal aid means test in another State.

Fragmentation of the existing national scheme has caused great anguish and dislocation to employees of the Australian Legal Aid Office. They feel betrayed. They have organised a staff association which includes all employees, not just the professional officers, to act in their own defence. This body was set up primarily because of concern for the future of the Australian Legal Aid Office and a lack of consultation between the Attorney-General and the Office. He consults with professional bodies but not with the Australian Legal Aid Office. The mooted appointment of Mr Loxton casts grave doubts on the bona fides of the Attorney-General in relation to the salaried legal service.

The Attorney-General has circulated a draft ordinance dealing with the setting up of a legal aid commission in the Australian Capital Territory. He stated that the Australian Capital Territory body will be a model on which other commissions will be based. In keeping with the policy of secrecy the draft was circulated to one or two self-interested bodies but not to those immediately affected- the consumers of legal aid, members of the Australian Legal Aid Office, the State Attorneys-General and, m particular, the Australian Capital Territory Legislative Assembly. The ordinance relates to the setting up of a 7-man commission dominated by the private profession. It allows for one representative of the Legislative Assembly and one from the Australian Capital Territory Council of Social Services. That particular member did not get a copy of the draft ordinance. The commission will be dominated by committees which will have the real power to dispense legal aid in the Australian Capital Territory. The legal aid committee will have the real power to dispense commission funds. It will decide all applications for legal assistance and decide whether to refer them to a private practitioner or to a salaried legal officer. This ordinance destroys all the aims of the Australian Legal Aid Office, a body which was accepted by 94 per cent of the Australian people.

The Western Australian legislation was introduced at 3 a.m. on a Friday morning, the same time as the milkman would arrive and with about as much notice. In that State it is already a fait accompli. Yet in this House on Wednesday of last week the Attorney-General said that he was discussing the matter. He said that at that very time officers of his Department were having close discussions with officers in Western

Australia. The Bill would have been drafted by then because it was introduced in the Western Australian Parliament within 24 hours. Is the Attorney-General so out of touch with his Department on negotiations or did he offer Western Australia carte blanche to go ahead with a commission without telling this Parliament what the funding arrangements are to be? We all would like to know what these funding arrangements are and what the financial cost is to be. What was the need for introducing this legislation so hastily? We might ask whether it was in order to spur some of the more genuinely concerned States into premature action. The AttorneyGeneral has a duty to explain his role in dismantling the Australian Legal Aid Office and setting up State commissions.

Legal aid is a matter of public importance and it should be a matter of priority. This Government's deceitful and underhand attempts to dismantle the ALAO and to give it to the States is typical of its discredited federalism policy. That policy aims at off-loading areas of national concern on to the already financially overburdened States. Mr Fraser said in reply to the 1975 Budget that the Liberals would abolish the ALAO. This has been done. Despite contrary and confusing statements by the AttorneyGeneral, that threat is now being fulfilled.







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