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Thursday, 14 November 1974
Page: 2385

Senator GREENWOOD (Victoria) - Yesterday I commenced to speak about the provision of $12m for legal aid; $10m of it is in the estimates of the Attorney-General's Depart*ment. I think I should advert to what Senate Estimates Committee A said about the question of legal aid. It was a very short note but I read it. It states:

The Committee received considerable assistance from the Attorney-General in response to questions seeking information as to the scope of operations of the Australian Legal Aid Office, and also as to the distribution of other moneys proposed to be appropriated for legal aid. The Committee notes the increasing number of agencies dispersing legal aid and is concerned at the possible duplication, inefficiencies and waste that unco-ordinated development may produce. It considers that a full scale government sponsored inquiry into the services providing legal aid is desirable.

On the terms of that comment the Committee was united. I appreciate that differing members of the Committee had differing approaches to this whole subject and what I hereafter say may not have the support of the other members of the Committee. But there was a view- this is why I emphasise it- held by the members of the Committee that there was need for some rationalisation in a somewhat confusing and worrying pat: tern of legal aid being disbursed throughout the community at the present time. No one questions the need for a society such as ours to ensure that people are able to take advantage of the basic equality before the law which exists in Australia. We recognise that all persons should be able as far as possible to have access to the courts, and people should not be denied access because of lack of means. There are some people who have always had the ability to secure the legal advice and access to the courts which they wanted; there are other people who have not been able so easily to secure that advice and access.

The purpose of legal aid is to make that advice and access available, as far as possible, to persons who because of lack of means might not be able to have the legal advice and appearances before the courts which from time to time they may need. The real question is how this advice is to be implemented. I say right at the outset that it should be able to be provided through an independent legal profession. I think that is the foremost fundamental of the requirements. One could stress why an independent profession is important. I mention just 2 considerations which I think stand in the forefront in the justification for legal aid being provided through an independent profession.

The first is that much and indeed an increasing amount of litigation is these days concerned with complaints of the citizen against the State or prosecutions by the State in which the individual citizen is the defendant. It is therefore highly important to have a profession which can give representation to bodies and persons who are in conflict with government and with authority. The cause of the individual is the cause of the individual's freedom being maintained constantly against encroachments by the State. We will not be able to secure and maintain that freedom, that right of the individual unless there are in the legal profession independent persons with no twin allegiances who are able to devote their cause to the individual. We will not be able to achieve that unless, as I have said, there is an independent legal profession. We will certainly not be able to achieve it if it is found that the place to which people who need legal aid go is a government office with salaried employees paid essentially out of the public purse because there must be at some stage a conflict of interest. It is tremendously important that whatever be the role of the Government in the provision of legal aid it does not undermine or reduce the effectiveness of the profession.

The second aspect which is important is that where there is any form of adversary litigationas far as the provision of legal advice and aid is concerned in Australia it will be in that area- it is important that the individuals concerned have a choice as to the type of legal representation which they want and which they need. They will not be able to have that choice if there is only one legal aid office to which they can go because where there is a government legal aid office it is perfectly feasible for that office to finance assistance for the plaintiff and to finance assistance for the defendant. But there is always sitting over the provision of that finance the Treasurer of the day who has some concern as to how much money could be dispensed. We do not want to reach the situation which is becoming notorious in the United Kingdom where litigation is financed by the Government for both plaintiffs and defendants, and counsel and solicitors are being financed by the Government as they act for parties on each side. It is becoming an increasing part of the general conduct of litigation in that country. That is a situation which we want to avoid as far as possible. If we provide legal aid we ought to provide it on a basis that allows a person entitled to receive it to go to a solicitor and to retain counsel in the same way as he would have been able if he had his own funds and did not have to have legal aid. That, to my way of thinking, is a second substantial reason why we must ensure the maintenance of an independent legal profession.

I say that what is happening at the present time since this Government has been in office is that we are implementing a scheme of legal aid in a way that is calculated to undermine and to reduce the influence of an independent legal profession in this country. It is a slow process and much has already been done without, I believe, the legal profession being aware of how it is being undermined. It is not only, I believe, the economic circumstances which find solicitors for the first time in many, many years registering at the unemployment offices of this country. What we are seeing is the development of a system under which a salaried legal service will perform a role which has hitherto been performed by the independent legal profession.

The Attorney-General made a statement on 1 3 December last year in this Senate. Unfortunately the prorogation of the Parliament precluded any debate upon the development of legal aid and indeed this is the first occasion that the Senate has had an opportunity to discuss the whole question. I desire to take advantage of that opportunity. The Attorney-General in his statement made last December said something the implications of which I think ought to be considered by all persons who believe in and want to retain an independent profession. He said:

The service that the Office -

That is, the Australian Legal Aid Office - will provide, broadly stated, will be: first, a general problem solving service of advice and assistance short of litigation to persons with an element of financial need- this will, in my view, take care of some 90 per cent of all problems that worry the ordinary citizen; and secondly, the conduct of litigation, particularly family law, environmental and other litigation in areas of special concern to the Australian Government, on behalf of persons who cannot afford the cost of representation in court.

The legal aid, therefore, is to be provided in 2 areas, firstly, legal advice and assistance short of litigation, and secondly, other forms of legal advice. As far as advice and assistance short of litigation is concerned, I would have thought the ordinary meaning of the Attorney-General's statement is that he anticipates that his Office will take care of some 90 per cent of all the problems that worry the ordinary citizen. That must involve a replacement of areas where the independent profession now operates.

Senator Murphy - No. Let me clarify this now. That meant- if the honourable senator had read the context reasonably he would understand this- 90 per cent of the problems that had come into the Office. It does not suggest taking care of 90 per cent of the problems of the whole community which did not come into the office. It means 90 per cent of the problems of the people who had come into the Office. Surely that is a reasonable meaning of the statement. If it is not clear or if it was not clear before, I am clarifying it for you now.

Senator GREENWOOD - I am grateful that the Attorney-General has said what he has just said because I have made the comment which I made earlier- referring to that passage in his speech- on other occasions and there has been consternation in some quarters. When the words are looked at and given their ordinary meaning, they have the interpretation which I have placed upon them and it has been put to me on behalf of the Attorney-General that they do have the meaning which he claims they have. I hope that he will make it clear and take the steps to ensure that the profession generally has a clearer idea of what this Legal Aid Office is to do. He probably saw in yesterday's Melbourne 'Sun-Pictorial' a statement- I believe a long overdue statementwhich came from the President of the Law Institute in Victoria. The article states:

The President of the Victorian Law Institute, Mr John Dawson, yesterday criticised the Federal Government's Legal Aid Office.

Many lawyers feel the Australian Legal Aid Office is confusing and unnecessary, ' he said.

I don't know if the Federal Attorney-General himself could tell you the role of the office- most lawyers certainly don't know,' Mr Dawson said.

The ALAO, which has been set up by the AttorneyGeneral's Department began opening offices in State capitals this year.

Mr Dawsonsaid: 'There was no legislation setting up the office, and the Attorney-General's directives are unavailable to me- I am puzzled by the way it was set up.' Mr Dawson said he believed the ALAO had a staff of solicitors who offered advice to people with problems relating to Federal law, including matrimonial and constitutional problems.

Mr Dawsonsaid the present State legal aid systems were adequate. There was really no need for the ALAO.

Every State has some form of legal aid service, controlled and staffed by the legal profession,' he said.

These services are supplemented by organisations like the Fitzroy Legal Aid Service. '

Lawyers felt the ALAO could only confuse many people seeking legal aid, ' he said.

I believe that what Mr Dawson said would be echoed by a vast number of solicitors in independent practice around the country. I suggest to the Attorney-General that this concern is felt because this great Office is growing, with enormous sums- millions of dollars- being spent upon it and no one quite knows what it will be when it is finally operational. I believe it is calculated to undermine the independent legal profession. The whole distribution of legal aid- at present a hotch-potch which is unregulated and unsustained by the parliamentary enactment systemis again an area in which patronage can be engaged in, in a manner which we have never experienced in this country in the past. This area of developing Government patronage ought to concern everybody who believes in parliamentary control and supervision of public expenditure. As I recognise that my time has almost concluded, I indicate to the Attorney-General my concern. I will raise some other matters in due course.

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