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Tuesday, 26 November 1985
Page: 2244


Senator GRIMES (Minister for Community Services)(4.09) —I move:

That the Bill be now read a second time.

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

The speech read as follows-

This Bill repeals sub-section 69 (3) of the Judiciary Act 1903.

The sub-section is one of the original provisions of the Judiciary Act, and has remained in substantially unaltered terms since 1903. At that time, there were few arrangements for legal aid in Australia and, as such, section 69 (3) was a most useful and necessary provision. It was consistent with similar provisions in the United Kingdom and some Australian States. However, in the words of a Supreme Court Judge considering the sub-section earlier this year, it can now only be described as an ``historical anachronism''. I would go further and say that it is not only out of step with modern developments in the provision of legal aid but is ripe for exploitation.

Under section 69 (3) a person charged with an offence against the laws of the Commonwealth may apply to a Judge of the High Court or of a Supreme Court of a State for the appointment of counsel for his or her defence. If the Judge certifies that the person is without adequate means to provide for his or her own defence and that it is desirable in the interest of justice that counsel be appointed, the Attorney-General is then to make arrangements for that defence.

The principle underlining this provision is one which all would accept. The International Covenant on Civil and Political Rights to which Australia is a party recognises this. Article 14.3 (d) of the Covenant provides that `everyone shall be entitled to the following minimum guarantees-

. . . to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.'

This is reflected in Article 27 (c) of the Australian Bill of Rights Bill 1985, introduced in the House of Representatives, which provides-

`Every person who is charged with a criminal offence has the right-

(c) to receive legal assistance without cost if the interests of justice so require and the person lacks sufficient means to pay for the assistance.'

The question which the Bill addresses is the most appropriate mechanism to provide legal aid for those facing criminal charges.

Since sub-section 69 (3) was enacted, and particularly since the 1970's and the work of the previous Labor administration, this country has seen the development of a very comprehensive and integrated system of legal aid based on the provision of funding through State and Territory legal aid commissions and the Australian Legal Aid Office. In addition, there is a very valuable network of community legal centres in all States. Commonwealth funding for these centres has been increased by approximately 35% to $1.5 million, within the total Commonwealth legal aid budget. The Commonwealth provides substantial funding for the operation of various elements of legal aid, currently spending about $1.2 million per week or $70.26 million in 1985-1986, an increase of 22% over the figure for 1984-1985.

This system provides for legal aid in relation to indictable Commonwealth criminal offences with slight variations among jurisdictions as to means and merits tests. The various legal aid authorites throughout Australia provide legal aid on the basis of the ability of the applicant to meet the cost of proceedings. That is the fundamental test in every case. The system also provides for comprehensive review and appeal procedures where an applicant is dissatisfied with the amount of aid granted or with a refusal of aid.

Until this year, certificates had rarely been sought under section 69 (3). It has now become apparent, however, that applicants are using section 69 (3) either to supplement assistance already obtained or to seek assistance which they have otherwise been refused by legal aid bodies in accordance with the accepted tests.

The increase in use of section 69 (3) has followed publicity given to a Federal Court decision earlier this year. In effect, the decision places the Attorney-General in a position where he has no discretion to exercise independent judgment. For example, he has no discretion as to whether the accused is in fact without adequate means to provide his or her defence, or is able to obtain assistance from some other source.

If this state of affairs continues, it is anticipated that the costs to the Commonwealth could be substantial. Assistance given pursuant to the certificate issued in the first case this year is likely to amount to $125,000 for the case at first assistance. Assistance pursuant to this certificate has been twice extended for a subsequent appeal and related proceedings. Consequently, the amount of the Commonwealth's (and taxpayers') funds involved may be much greater. Since the first certificate, three further certificates have been issued to other applicants. The extent of assistance has not yet been ascertained in relation to these but in one case assistance may well be in the order of $1 million.

While it was always intended that legal aid would be available to persons meeting guidelines laid down by legal aid bodies, it was not intended that applicants would, in effect, be able to circumvent those bodies established to administer the legal aid funds and go direct to the Commonwealth. Such a practice of queue jumping or re-appealing, if it became widespread, would create a mockery of the equity and organisation of legal aid delivery. There are enough pressures on our legal aid system without this occurring.

Equally it was not intended that the courts would be asked to make decisions on questions such as whether or not an accused person has adequate means to provide for his own defence. Such questions are essentially administrative questions and not suited to determination by courts whose procedures on these questions are necessarily expensive and more cumbersome.

As has been pointed out, all legal aid bodies apply ``means'' and ``merits'' tests for each applicant. Although the detail of these tests vary, as the recently published Legal Aid Task Force Report documents, the fundamental test applied by all the bodies is whether the applicant is able to meet the cost of proceedings. This is the same test as required by the International Covenant and is the test in section 69 (3). However, legal aid bodies are able to assess applications with a degree of flexibility which is not available to the Courts. In addition, the bodies are able to adjust their guidelines to meet changing circumstances. For example, at least two Commissions have established, and a third is considering introducing, more sophisticated tests of an applicant's means than were available in 1903 or are able to be taken into account by the Courts under section 69 (3) according to the cases on the section. Among other things, these have the effect of taking into account the widespread use of trusts and companies in personal and family affairs by allowing the Commission to draw inferences from the apparent lifestyle of the applicant. This is an important contribution to the fairness of the legal aid system.

Following the establishment of their legal aid commissions, the States have already recognised the inconsistency of retaining provisions similar to section 69 (3). Consequently, New South Wales, Victoria and Queensland have repealed such provisions in the Poor Prisoner Defence Acts or similar legislation.

Given that legal aid will continue to be available through the ALAO and State legal aid commissions, the repeal of section 69 (3) should not have any effect on Australia's international obligations and, in particular, on its obligations under the International Covenant on Civil and Political Rights.

The Legal Aid schemes operating in each jurisdiction today, in the Government's view, satisfy the provisions of the International Covenant. Compared with the provisions available in 1903, the current system provides a far greater service and coverage for those in need. The requirement which we and the community face is to spread the legal aid dollar fairly and equitably. A provision such as section 69 (3) can operate to distort the normal legal aid processes and is redundant.

I commend the Bill to the Senate.

Debate (on motion by Senator Sheil) adjourned.