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Thursday, 14 November 1974
Page: 2387


Senator MISSEN (Victoria) - I wish to make some remarks on the same subject. They are supplementary and additional to what has already been said. I wish to say, so there will be no misunderstanding, that I support very strongly the concept of legal aid. I have supported it since in started in Victoria. I played an active part in helping to get it off the ground, with the profession's support. I have supported it in a practical way for a number of years by taking action in accepting assignments and dealing with legal aid matters. I recognise not only the desirability of the profession being actively involved in legal aid, but also the deficiencies which it has had for a number of years and which of course need to be remedied. I think that one should take that general stance. I agree very substantially with Senator Greenwood's statement about the necessity for the private profession to be most heavily involved in the legal aid system and that it should not be a matter of government service. There is perhaps a distinction. Probably I do not go quite as far as Senator Greenwood goes, because I see a role for an Australian Legal

Aid Office. I see it operating in remote places where the profession is perhaps not strong or even non-existent. I see it operating also perhaps in areas where there is an additional need to bring the knowledge of law facilities to the people where it may be that the profession is not able to do it adequately. Basically I think the legal profession is best able to deal with such a scheme. In my years of practice I have seen a public solicitor-type activity in which a charity is performed and people wait in queues and have great difficulty in getting service. I think that this is not the desirable way in which legal aid should be provided. It is best provided in a system whereby the people are dealt with as ordinary clients of a solicitor and are treated as equals of any other client, with financial provisions being made from the legal aid service.

Attention must be drawn to the discussion that took place in Estimates Committee A. It was a fairly long discussion during which much helpful information was provided for the members of the Committee. But if one reads the Hansard record of that debate it is still impossible to determine the way in which the $ 12.5m, if one adds the Aboriginal legal aid to the $10m which is provided generally for legal aid, will be spent this year. This has the seeds of a great problem. A massive payment is being made. It was admitted in the course of that discussion that we could not be told precisely how the money was to be spent. A sum of $3,600,000 will be paid by the Legal Aid Office to private solicitors for work which it will brief them to do. The principles and policies under which this will be done should ensure that it is done in a regular way to provide work for the people who are best qualified, with no real possibility of elements of patronage. Those principles should be laid down. They are not laid down at the moment because there is no legislation on this subject.

The question of legislation provides a very interesting situation because during the consideration of the Estimates I asked Senator Murphy a number of questions, and there was discussion as to how the policy of legal aid was to be determined. I put it to him in this way:

I take it that there will be no legislation, no ratification of any agreements or anything of that nature which will give the Parliament an opportunity of saying: 'This is not the best way in which is should be split up '.

In reply Senator Murphy referred to a number of statements that he had made in the Senate and to the fact that there had been a meeting recently with representatives of the Law Council. I took it from those answers and the fact that there was no suggestion of legislation that there was not to be any legislation. I think that legislation is highly desirable. I believe also that an inquiry is desirable. That inquiry could be set up, as a result of legislation, to consider the way in which this $10m is to be invested by the Government. In the annexures to the report of Estimates Committee A, which is before the Committee of the Whole, a very useful review of legal aid has been submitted. This is shown just after Attachment D, in the middle of the document. Part of this annexure states:

On 25 July 1973 the Attorney-General announced the establishment of the Australian Legal Aid Office incorporating the Legal Service Bureaux. Establishment of the Office is the major step the Government has taken to make sure that legal aid is readily and equally available to all persons in needparticularly disadvantaged persons- throughout Australia. Legislation will be introduced to create it as a statutory office.

So far as I know that is the first- I think very welcomestatement, but rather tucked away in the records, that there will be legislation. I think it is highly necessary not only to establish the Office but also to establish the principles under which we can examine it. In the consideration of the Estimates it was impossible to examine the principles or the details of the way in which these moneys should be expended. In addition to this one must determine what policy should be adopted in the distribution of these moneys.

I refer in a different way to the matter which Senator Greenwood raised. When the AttorneyGeneral made his statement to the Senate on 13 December 1973, he said:

There are 4 major problems that, I believe, need urgent attention. First, the need to provide on an equal basis throughout Australia legal advice and assistance that will fill the gap left by the Law Society or Legal Aid Committee schemes for aid in litigation and to see that advice and assistance reaches disadvantaged people; second, the need to provide legal aid in divorce cases and in proceedings ancillary to divorce; third, the need to provide legal aid for representation in magistrates courts; and fourth, the need to avoid the bottomless pit' of ever increasing costs of providing legal aid.

I draw specific attention to the fact that it was to fill the gap, and it must be recognised surely that the filling of the gap surely does not mean a tremendously expensive scheme nor tremendously expensive offices.

One has to recognise that there is a great deal of variation between the State legal aid schemes. In some there is a much more highly developed method and much more enthusiasm for the scheme. The State schemes provide different things. For example, in Victoria there is a considerable contribution to divorce litigation. In New South Wales last year that was not included in the scheme. One would want to see firstly whether the gaps were being filled and, secondly, what efforts were being made by way of discussion with the profession to see whether the gaps could be filled. Then the legal aid office no doubt would cover the gaps that could not be filled.

Overall I suggest there is a need for some body which is co-operative, which has representatives of the profession, of the Government, of social welfare groups and of people who are involved in this area to ensure that these things are done on a regular basis and that the gaps are filled. There is no provision yet for such a body to exist.

There are usually 2 parties to litigation and it might be highly desirable for one party to be represented by a member of the profession who is engaged by the legal aid organisation in the State and for the other party to be represented by the Australian Legal Aid Office because, as the Attorney-General (Senator Murphy) pointed out, there is always the problem of the bottomless pit that could be involved in legal aid. There are examples known to the legal aid committees of cases in which they have given representation to both sides, and the solicitors of course have had no worry about the extent of the proceedings and the elaboration to which they might goperhaps unnecessary elaboration- in the proceedings because there is not a problem of someone having to pay. I think the Australian taxpayer has an interest in ensuring that unnecessary embellishments do not occur in litigation causing a great deal of cost to the community.

One must recognise that there is a decrease in money going to the existing schemes this year, from $2m to $1.3m. I doubt whether this is desirable although I imagine that part of the reason is that the Legal Aid Office will deal with divorce matters more than it has in the past. But I would suggest that that reduction stands rather curiously against a great increase in total expenditure. This increase comes from a very small amount last year which makes it impossible to measure the figures of last year against the proposed figures for this year. They just do not match up in any way. There will be a lot of money spent this year.

I suggest it is high time that we had legislation before us. It is high time that we had further discussions which will lead to a rationalisation of the scheme and enable the bulk of the operations of the scheme to be performed by the legal profession which has pioneered this area. I hope that we will have such an inquiry as the Committee recommended and a Bill which, I trust, we can examine as to its principles and application so that this matter will not remain in its present amorphous state.







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