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Seat of Government (Administration) Act - Legal Aid Ordinance-Legal Aid Committee of the Australian Capital Territory - Report and financial statement, together with the auditor's report - Year - 1972-73


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1975— P arliam entary P aper N o . 63

AUSTRALIAN CAPITAL TERRITORY LEGAL AID ORDINANCE 1972

LEGAL AID COMMITTEE OF THE

AUSTRALIAN CAPITAL TERRITORY REPORT FOR 1972-73

P resented p u rsu a n t to S ta tu te 9 A p ril 1975

O rdered to be p rin te d 23 A p r il 1975

T H E G O V E R N M E N T P R IN T E R O F A U S T R A L IA

C A N B E R R A 1976

The Legal Aid Ordinance of this Territory was introduced on 1 March 1972, and this Report covers the period from 1 July 1972 until the end of the financial year, 30 June 1973.

Printed by Authority by the Government Printer of Australia

CONTENTS

Page

Introduction ...................................................................................................... 1

Particulars of a p p lic a tio n s ................................................................................... 6

Accommodation .................................................................................................. 7

Staff ..................................................................................................................... 8

Recommendations ............................................................................................. 9

C o n c lu s io n ................................................................................................................. 11

Attachments ............................................................................................................ 12

INTRODUCTION

The Committee met on 49 occasions principally on Wednesday mornings. Thirty-two meetings were held at Churchill House in Northboume Avenue until the Law Society surrendered the tenancy of two large rooms on the first floor. From 1 March 1973 the Committee met on 17 occasions in its new premises of five rooms in a wing of the first floor of Beauchamp House which has quickly become prominent as the Welfare Centre of the Australian Capital Territory.

Meetings are held at least once a week. Meetings took an average of 2 hours 45 minutes as there are no powers of delegations under the Ordinance. The time occupied at meetings is reduced to a minimum as a result of individual members preparing for the meetings by examining the minutes o f previous meetings, correspondence and applications prior to the meetings taking place. Immediately

before each meeting a supplementary agenda is prepared to deal with applications, correspondence and other business which are received after the preparation of the original agenda. The original agenda is prepared on the Friday o f each week for the meeting intended to take place on the following Wednesday. The practice o f prepar­ ing a supplementary agenda ensures that the Committee is able to deal with any mat­

ter which arises within one week (at the longest). If any matter is urgent it is dealt with by way of interim grant by individual members pursuant to the provisions of section 63 of the Ordinance and confirmed by the next meeting, or alternatively if a matter arises which is considered to be one requiring the decision of the whole Committee before the ordinary weekly meetings, special meetings are rapidly convened.

Meetings and attending to applications for interim grants and other inquiries in respect of the Scheme impose a heavy burden on the time of members who serve in an honorary capacity. Considerable time of the members could be saved if an efficient and capable secretary were appointed as is recommended later in this Report.

The members and deputy members were:

(i) Member—Mr J. D. Button Deputy—Mr D. J. Crossin (ii) Member—Mr B. R. Gallen Deputy— Mr J. D. Donohue (iii) Member—Mr A. R. M. Watson

Deputy—Mr G. M. Wheeler The first four persons are solicitors in private practice in the Territory, whilst Messrs Watson and Wheeler are qualified legal practitioners employed in the Attorney- General’s Department. The secretary was Mrs H. Berryman, a qualified solicitor,

whilst Mr J. N. Bell and Mrs J. O ’Leary were employed as a clerk and typist/recep­ tionist respectively. Mr Bell resigned in April 1973 and Mrs Brimmer, an employee of the Law Society, gave assistance until Mrs J. Ward was appointed to the staff in May 1973, on a full-time basis. Mrs D. O ’Donnell joined the staff as a qualified accountant on an hourly basis in March 1973. Mrs Berryman and Mrs O ’Leary were shared with the Law Society, with the Committee paying for three-quarters of their time, on the early footing that the amount of work would not justify a number of full-time em­ ployees. This view was quickly proved to be substantially incorrect. In a press state­ ment in February 1973 the then Chairman, Mr Button, predicted that approximately

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800 new matters would be dealt with in the year. The ultimate figure was 789 new j matters. j

The demands on the time of the time of the private practitioners on the Committee would have been far greater had not the government member, Mr A. R. M. Watson, and the deputy member, Mr G. M. Wheeler, devoted time and effort to the work of the Committee far in excess of the time that the other members were able to give. Mr

Wheeler in particular spent time continuously assisting the Committee and its staff and also the members of the legal profession participating in the Legal Aid Scheme. It is a fact, which I think should be recorded, that but for the invaluable assistance of Mr ; Wheeler the Legal Aid Scheme in the Territory, which during and after the period covered by this report was still in a formative stage and being administered by a Com- | mittee not then as experienced as it is now, assisted by a small, diligent, but compara- j lively inexperienced staff, would not have been as effective as in fact it was. !

The fact is that no person needing legal representation in any matter in all the Courts o f the Territory, the Administrative Tribunals of the Territory or in any Arbi­ tration in the Territory was prevented from obtaining such representation by lack of financial means.

In July 1972 Mr Button with the authority o f the Committee wrote to the Canberra Times correcting inaccuracies in a radio talk given by Dr Paul Wilson concerning inadequacies of legal aid in Australia generally, in so far as his remarks related to the availability and administration of legal aid in the Territory. A copy of Mr Button’s let­ ter is attached.

Mr Button in his letter confined his comments to an answer to the allegations Dr Paul R. Wilson made in respect of legal aid. j

In preparing this Report I have examined the transcript o f D r Wilson’s talk for the : first time. I would say that, so far as the Territory is concerned, practically all of his comments and not only those dealt with by Mr Button are unjustified and inaccurate. Members of the Law Society of the Australian Capital Territory for many years have

been concerned with, and frequently have recommended, many reforms to both the substance and the procedures of the laws of the Territory. For many years members of the Law Society of the Australian Capital Territory have been urging the introduc­ tion of an adequate legal aid system. Until, as a result of their efforts, the Legal Aid Ordinance came into operation in March 1972 legal practitioners in the Territory acted on behalf of persons in need for what could only be described as token fees.

In November 1972 a member o f the Committee, in a private capacity, responded by letter to the Editor of the Australian Law Journal commenting on the Territory aspects of a general article on legal aid in Australia by Messrs Cranston and Adams. The article and the member’s letter appear in Vol. 46 (October 1972) and Vol. 47 (January 1973) respectively of the Australian Law Journal. Such ill-founded state­ ments are unfortunate and unfair. Statements have been made from time to time by Mr Enderby which also display a lack of knowledge o f the effectiveness of the Scheme. While one may excuse an academic for making such ill-founded statements one cannot excuse Mr Enderby, he having formerly practised in the Territory. He should know better. With your permission I propose to make a copy of this report available to him in the hope that it will inspire him to make a study o f the Scheme and perhaps lend it his support.

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A comprehensive information circular for the legal profession was distributed by the Chairman on 25 July 1972. It established the practice of standardised minimum costs, with the assistance of the Registrar of the Supreme Court, Mr Z. Hartstein, whose skilled help had been invaluable in ensuring an even flow of the Committee’s

work. In September 1972 Mrs Berryman attended a weekend meeting of legal aid ad­ ministrators throughout Australia at Hobart and a number o f moves followed from that conference to ensure that the various schemes of legal aid would operate recipro­

cally wherever possible. The cumbersome multi-page green and pink forms of application were replaced from August 1972 by a new printed four-page form of application to suit all matters, together with a single-page form for continuation of legal aid. Thanks for the layout of both forms and for seeing them through the printers must go to the Organisation

and Methods Section o f the Attorney-General’s Department. The responsibility for their content must rest however with the Committee, as it attempted to meet in one form all the requirements of the Ordinance for the great range o f matters it covers. The Committee appreciate the barrier that a complex form will put up to an appli­ cant, many of whom are in a distressed condition, and it commends Mrs Berryman,

Mrs O ’Leary, Mr Bell and Mrs Ward for the sympathy and understanding they displayed when dealing with applicants. All applicants are encouraged to call at the office to fill in the form. The costs of legal aid proper increased during the year, not only because of the increase in the number of applications. Counsels’ fees in civil matters were increased

by the Registrar in January 1973 and the Attorney-General introduced a very flexible element in the scale providing for complex committal proceedings on 6 February 1973. In April 1973 the Committee resolved to recommend to the Attorney-General that the reduced fee basis in civil cases be increased from 70 per cent to 80 per cent of

normal solicitor and client costs. In May 1973 the ordinary scale of civil costs for litigation in the Supreme Court of the Territory was increased by up to 27 per cent. In November 1972 and again in November 1973 the question and quantum of staff was discussed with senior officers of the Attorney-General’s Department. As a

result of these discussions, Mrs O ’Leary was moved to a full-time basis and Mrs Ward was also appointed on a full-time basis. In February 1973, in common with other schemes where legal aid was available in divorce, the Committee experienced difficulties with the application of the amend­

ments to the Matrimonial Causes Rules. After some weeks of uncertainty however the Rules were disallowed by the Senate. The effect of the operation of these Rules in the Scheme was to prevent the Committee in some cases recovering costs against respon­ dents and in some cases co-respondents. However in some cases as a result of these

Rules the total costs paid by the Scheme were limited to $ 150 for a petition for dissol­ ution of marriage. The same members and deputy members were appointed by the Attorney- General for the period of 12 months commencing on 1 March 1973. Mr Button stood

down as Chairman, having occupied that position from 1 March 1972 when the Ordi­ nance came into effect, and was replaced by me. The Committee was represented at the conference of persons concerned to establish an Aboriginal Legal Service Program at the Park Royal Motel in April 1973.

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From then the Committee’s staff have actively co-operated with government officers administering that program in the Territory in making smooth arrangements for the representation of Aboriginal persons under the program.

In April 1973 the Committee resolved that legal advice on an organised basis should be included in a proper legal aid plan for the Territory and consulted with the Department with a view to obtaining a substantial increase in salary for the position of Secretary, which would leave Mrs Berryman free to furnish on-the-spot advice for which a strong demand had been noted. However the Department would not accept a

marked increase in the salary range for a Secretary. The Law Society in August 1973 initiated its own lunch-time advice scheme, to be maintained from a monthly roster of private solicitors on an honorary basis. This scheme provides an opportunity for per­ sons needing advice to obtain such advice without charge between the hours of 12.30 and 2.00 p.m. each day Monday to Friday inclusive. This Scheme is operated in prem­ ises made available at Beauchamp House.

As a result of this Scheme a large number of persons advised are referred to the Committee for legal aid. I am informed that a large number of persons advised have problems not requiring legal representation but requiring social welfare assistance; as a result the persons advised are referred to the appropriate authorities.

It is considered desirable that the accommodation provided for the operation of the Law Society’s Advice Scheme be close to the Committee’s office to facilitate the rapid institution o f any proceedings recommended or alternatively in the case of de­ fendants or respondents the consideration of a grant of legal aid to defend.

The attached record of business for the year shows the importance o f adequate provisions for legal help in domestic and matrimonial cases and in criminal matters. The large number o f matters recorded as ‘not proceeding’ in maintainance and div­ orce cases confirms the Committee’s view that it is not possible to order the activities

of people in these intimate circumstances and that reconciliation may properly occur at any time in such cases. Whenever the Committee is advised o f reconciliations or the like it is able to exercise its power to vary a contribution towards costs where one has been imposed, if there has been a sufficient change in the circumstances of the applicant.

An examination o f the matters handled in the year shows that clear reasons may not always have been adequately communicated to the applicant for the decision, where applicants have been refused legal aid.

The reasons for refusing to grant legal aid are:

(a) that the applicant is seeking aid for a matter being prosecuted or proposed to be prosecuted outside the Australian Capital Territory (see section 5 of the Ordinance);

(b ) that the applicant is not without adequate means to pay his or her own costs; or

(c) that the applicant has no reasonable prospects o f success.

There is no provision in the Ordinance for a judicial appeal from, or review of, the de­ cisions of the Committee to refuse an application or as to the amount o f the contribu­ tion to be made by applicants in respect of their own legal costs. The Committee for

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the reasons stated hereafter do not consider that there is any need for such a pro­ vision. In such cases the Committee, if provided with further information by the appli­ cants or their solicitors, re-examine their decision, and if the additional information justifies such action alter the decision appropriately.

Where an applicant is refused legal aid because of the limitations imposed by the Ordinance as to jurisdiction, the Committee has been able to assist applicants by referring them to other available legal aid schemes or by suggestions as to change of venue enabling the applicant to pursue the application.

No concern should be felt for applicants refused legal aid on the ground that they do not qualify because they do not lack sufficient means to pay for their own costs. The Ordinance is liberal in its provisions in this respect. In some cases where the Com­ mittee has refused a grant because the applicant has not at the time o f the application

been without means the Committee, forseeing that the possibility existed that if the proposed litigation became prolonged the applicant’s means would therefore become inadequate, invited the applicant to make a further application at a later date and in­ dicated that if the applicant’s financial circumstances then qualified the applicant to a

grant that grant would be made. That the provisions of the Ordinance in this respect are liberal is demonstrated by one application where an applicant owning property worth many thousands of dollars but not having any funds available to prosecute his claim to obtain remedies against a mortgagee alleged to be acting oppressively was granted legal aid. In this case the applicant was granted aid on condition that a full

contribution would be made by the applicant to his own costs by way of instalments. The applicant was successful in his case both in the Supreme Court of the Australian Capital Territory and subsequently in the High Court of Australia where the Appeals o f the other parties were dismissed with costs. (The Committee are at present, through the applicant’s solicitors, enforcing the Orders of the Supreme Court and the High Court awarding costs to the applicant and on receipt of these costs will be in a position to refund part or the whole o f the contribution paid by the applicant.)

The decisions of the Committee as to fees agreed to be paid to applicants ’ solici­ tors and counsel have in almost all cases been accepted without complaint. No prac­ titioner has so far exercised the right provided in the Ordinance (see section 59) to tax his costs. The members of the legal profession in the Territory have undertaken the

cases of applicants granted aid and have diligently worked for the applicants with the result that, in an overwhelming number of cases where success could be expected, suc­ cess was achieved. The profession has contributed materially to the success of the Scheme. With the exception of two individuals they have accepted the reduced fees payable under the Scheme. In appreciation of the co-operation received from the pro­

fession the Committee has gone to considerable pains to ensure to the best of its ability that the fees o f the practitioners have been paid promptly at the rates appropri­ ate under the Scheme. The legal profession in the Territory have given the Scheme willing support and have helped the Committee’s staff considerably by taking criminal matters, some­

times at very short notice. In a few instances however practitioners have not kept the Committee periodically informed as to the state of a matter, particularly where it is protracted. This causes the Committee some concern. The Committee is also concerned about cases where divorce and maintenance

costs, although ordred by a Court to be paid to the legally assisted person, have not

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yet been paid and forwarded to the Committee. It appreciates that there will be many occasions because of the poor circumstances of the person involved that it may prove uneconomic to attempt or continue with recovery action. Where costs have been

ordered and not been paid the Committee is pursuing the matter directly with the sol­ icitors who have had the conduct of these cases.

PARTICULARS OF APPLICATIONS

Attached to this report are certain documents thought to be o f value in assessing the nature and effectiveness of the Legal Aid Scheme. They are: 1. A copy of the transcript of the talk by Dr Paul Wilson and a copy o f Mr Button’s letter of July 1972 (See page 13 of this report).

2. An analysis of applications. 3. The report of D. R. Steele Craik on the financial operations o f the Committee. 4. A copy of the Receipts and Expenditure of the Legal Aid Fund for the year ended 30.6.73.

5. Copy of Hansard report of the speech of the Attorney-General, The Honour­ able Senator Murphy, made in the Senate on 13 December 1973. The figures attached do not balance with the raw total of applications. Whilst one file may contain two matters, perhaps maintenance and later divorce, or the committal

and later a sentence, other files may relate to several persons ultimately indicted for a joint trial which for these purposes counts as one trial. Again in a formal sense a de­ cision to pay for an Opinion from or inquiries by a solicitor in a complex matter under section 34 (2) of the Ordinance is not always the result of an application lodged just

for that purpose. There are two matters which have caused the Committee some concern in relation to the cost of operating the Scheme. They are: 1. The apparently undue length of some criminal trials.

The Committee has investigated as best it can the reasons why some criminal trials in the Territory have apparently been taking longer than would a trial of a similar nature in the State Courts. A number of reasons have been suggested as to the cause for this situation. The Committee has not been able to reach any conclusion as to any one cause of this situation but it is able to offer suggestions to the appropriate authorities as to a number of matters which contribute to prolonging trials in the Territory. The Committee having investigated one

suggested cause, namely that Counsel have been deliberately prolonging trials, have concluded that this is not the case. 2. Costs awarded by Magistrates in maintenance cases are unrealistically low. Contributions from applicants and costs recovered from other parties are a sig­

nificant factor in enabling the Scheme to operate with'as little cost as possible to the public purse. As a result of the Magistrates’ Orders as to costs being too low the costs recovered from respondents (or defendants) in maintenance cases are invaria­

bly less than the fees paid by the Committee to the practitioners of assisted ap­ plicants in this type of case. Very rarely is an applicant for aid in this type o f matter able to pay a contribution. The Committee recognise that there may be reasons for the Magistrates ’ low orders

and have requested the Law Society to have its representatives discuss the matter with

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the Magistrates with a view to ascertaining the reasons, or alternatively if no such reasons exist, requesting the Magistrates to increase the quantum of the Orders to more appropriate sums. It is hoped that as a result of this action a considerable saving will be made in the cost of operating the Scheme.

It has been noted that relatively few persons given legal aid in criminal matters are able to make a worthwhile contribution to the cost of their defence.

The overall cost of aid to a person charged with criminal offences constitutes the major item of the overall cost of the Scheme.

The aim of the Committee is to achieve a situation where the Scheme is self­ supporting. This aim will probably never be achieved. Nevertheless it is an aim that future Committees should continue to strive to achieve. The writer proposes to recommend to the Committee that it investigate the possi­

bility o f requesting the Judges and Magistrates when imposing sentence on persons assisted by the Scheme to consider, where appropriate, making Orders as to contribu­ tions to the Scheme. Such Orders would help considerably in the financing of the Scheme.

ACCOMMODATION

During the period covered by this Report, premises were obtained at Beauchamp House. The situation of these premises in close proximity to the various offices of the sections of the Department of Social Welfare and being reasonably close to the Courts and public transport was found to be ideal. At one stage the Committee was

threatened with the loss of its accommodation but thanks to the intercession of Mr Enderby it is still housed at Beauchamp House. However despite the sympathy and understanding of Mr Hemer, the Director of the Welfare Branch of the Department of Capital Territory, who also has accommo­

dation problems, moves are being made which have resulted in the accommodation available to the Committee and its staff being reduced to a point where it is inad­ equate for the requirements of the Scheme and is causing problems to the staff. The main problem has been the lack of space to provide for private interviews for

applicants. It is frequently necessary to carry out interviews and obtain personal infor­ mation in the presence of other applicants. This is embarrassing to the applicants and to our staff. There is also insufficient accommodation for applicants awaiting attention.

There are also problems as to heating owing to overload o f the electricity circuits available. It is hoped that these problems will be overcome.

In an effort to overcome the Committee’s accommodation problems (and also those of Mr Hemer) the writer obtained an interview with Mr Enderby, who at the time of the interview was Minister for the Capital Territory. It was suggested to Mr Enderby that a solution to the problem might be to move the Family Planning Bureau from Beauchamp House to a situation closer to the Department of Health. It was

pointed out to Mr Enderby that it seemed more appropriate a situation for such a body. The desirability of retaining the Committee’s accommodation close to the Wel­ fare Offices, public transport and the Courts was also pointed out to Mr Enderby.

Mr Enderby was sympathetic and indicated that he would make efforts to assist. He pointed out however that he anticipated difficulties in solving the problem.

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To date the problems have not been solved and the writer has been instructed by | the Committee to pursue the matter with Mr Enderby, Mr Biyant, the present Minis- · ter for the Australian Capital Territory, and with you. It would be desirable to have accommodation at a ground floor level to avoid the problem of disabled applicants mounting stairs.

It is hoped that with the assistance of the above-mentioned gentlemen and with your assistance the accommodation problems will be overcome. ί STAFF

The Committee has been fortunate in obtaining staff who have been diligent, hard­ working and enthusiastic. It is apparent that they are motivated by factors other than remuneration. In order i to keep the Scheme working they have frequently worked overtime during the week- I days and even on Sundays. j!

The staff regularly forgo their lunch break to assist applicants. They also take j work home. I feel I should record the appreciation of the Committee for their hard work and ‘ the sympathetic assistance given to applicants.

I am sure the members of the legal profession also appreciate their help. Notwithstanding the sterling efforts of the staff the Scheme has only been able to function as well as it has as a result of the time devoted to it by the various members of the Committee, especially Mr Wheeler. Without Mr Wheeler’s efforts there is no doubt that the Scheme would not have been able to achieve the success that it un­ doubtedly has. No one of the private practitioners could have afforded to devote the time Mr Wheeler has found necessary to devote to the affairs of the Scheme. If as a result of the time given by Mr Wheeler to the affairs of the Scheme, Mr Wheeler may have been unable to attend adequately to his ordinary duties as a Prin­ cipal Legal Officer in the Attorney-General’s Department (as I believe would be likely), I feel that this report should include reference to the facts stated above and that it should also be noted that Mr Wheeler’s assistance to the extent it has been given was made necessary in the earlier stages of the period covered by this report by the inexperience o f the then secretary, Mrs Berryman, and later, after Mrs Berryman’s retirement, by the fact that the Committee decided not to appoint a secretary to replace Mrs Berryman as it considered the applicants for the position who responded to the invitation for appointment to such position did not have the qualifications required for what has become such a demanding position. The Committee has decided to recommend that the position of Secretary to the Committee be regarded as one requiring qualifications and experience justifying the j appointing of a person who could reasonably require to be paid a salary in excess of | that of a senior legal officer. ;

The salary authorised by the representatives of your Department as a result of dis­ cussions which took place at the time of Mrs Berryman’s retirement was that which was equivalent to that of a senior legal officer. As stated above the advertisement inviting applications for the position resulted in a response from only two persons, neither of whom were considered suitable.

The reasons for the Committee’s recommendations are: 1. The increase in the population of the Territory.

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2. The wide scope of the Scheme (unlike other schemes in operation elsewhere in the Commonwealth). The Scheme covers all types of matters in Courts, Ad­ ministrative Tribunals and Arbitrations.

3. The increase in the number o f applications. 4. The increase in the size of the staff administering the Scheme. 5. The necessity to have a person able to give ad hoc advice to applicants, not­ withstanding the availability o f advice from the Law Society’s Legal Advice

Scheme. The Committee believe that to be qualified to give such advice a per­ son of considerable practical experience is required. The Committee also be­ lieve that such a person would be able by virtue o f his experience and the giv­

ing of such advice, be able to reduce considerably the cost o f administering the Scheme. 6. The necessity of having a person capable of assuming the responsibility of making decisions which can now only be made by the Committee. The last-mentioned reason may require an amendment to the Ordinance. If such an amendment were made it would, the Committee believe, also result in savings in

administrative costs.

RECOMMENDATIONS

1. Mr Button, my predecessor as Chairman of the Committee, for the period 1.7.72 to 30.6.73 in his report published 18.12.73 recommended, inter alia, that sections 58 and 59 of the Ordinance be amended in the manner suggested by his letter of 12.9.73. The Committee notes with some concern that the

amendments to the Ordinance recommended by Mr Button have not been made. The recommendations are renewed. 2. For the reasons given at page 9 of this report the Committee recommend that applications be invited for the position of Secretary to the Committee of an ex­

perienced legal practitioner capable of administering the Scheme, capable of assuming the responsibility o f giving ad hoc advice on a wide range of matters and capable o f making decisions in respect of applications which hitherto may only be made by the Committee, such person to be at all times answerable to

the Committee. The Committee recommends that a salary range of up to $16,700 be offered. Should any amendment to the Ordinance be necessary to enable the Secretary to exercise the recommended enlarged functions, such

amendments should be made as soon as possible. 3. That the premises to be occupied by the Committee and its staff be in close proximity to the Courts, public transport facilities and the Welfare Branch of the Department of the Capital Territory, and (if possible) that they be situated

where disabled applicants will not have to mount stairs. Note—reference should be made to the recommendations of the Committee at p. 10 of this report. These recommendations have been made on the assumption that legal aid in the Ter­

ritory will continue to be administered under the existing Scheme. The Committee has been handicapped in planning for the future of the Scheme by reason of the uncertainty as to the future role of the Scheme created by announce­ ments made from time to time by members of the Government as to its intentions in respect of the Australian Legal Aid Office in particular and legal aid generally.

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The Committee has endeavoured from time to time to ascertain just what is the intention of the Government. These endeavours have not been successful. The pos­ ition remains obscure. The Committee concurs with the views expressed by you in your speech report in Hansard, from the Parliamentary Debates 13.12.73, as to the desirability (many would say necessity) of maintaining ‘a strong and independent legal profession, that ; can stand between the Government and the citizens not least in the fields of human ! rights, civil liberties and criminal matters generally ’.

It is apparent however from an examination of other parts o f the transcript of your j speech that you were under a misapprehension as to the effectiveness of the Legal Aid ; Scheme operating under the Ordinance at the time of your speech, and in fact since ! 1 March 1972. j

With respect, your comment ‘Up to the present, the Law Society schemes have ' failed to provide adequate legal aid for divorce proceedings. Where legal aid has I been provided, substantial contributions towards the costs o f the proceedings have j been levied upon the applicant’ is completely inaccurate as to the position in the Territory.

There is also in the Territory no basis for the statement reported as made by you ‘There has been much criticism of the failure of most legal aid schemes to provide representation in magistrates’ courts’. In respect of your comments as to the ‘bottomless pits’ in this speech, I couldn’t but agree. However, it is my view based on my experience in serving on the Com­ mittee (a view which I can support with evidence from the records of the Committee for legal aid in the Territory) that an efficient Committee can ensure that no person need lack expert legal representation of his own choice in any Court or before any tri­ bunal in the Territory or in respect of any arbitration, IN FACT in any conceivable situation where legal representation is required. Furthermore it can also be demon­ strated conclusively that this result can be achieved at a reasonable cost; a cost which j is contributed to by the assisted persons by reasonable contribution made by each of j

them according to their capacity (if any) to make such a contribution, i.e. on the prin- ; ciple, to quote a famous maxim,‘to each according to his needs and from each accord­ ing to his capacity’. How can such a proposition be challenged? It is the Committee’s experience that the majority of applicants wish to contribute to their legal costs. I invite you to examine the records of the Committee as to the extent and cost of assistance given to the persons needing aid in the Territory and to the amounts paid by way of contributions towards that assistance.

I invite you to indicate any instance when a person needing assistance has not received assistance. I invite you to demonstrate that such assistance has not been provided at less than a reasonable cost; at a cost less than any scheme such as you have proposed will entail.

I invite you to challenge the proposition that it is eminently desirable that citizens should be able to select the legal representative of their choice. I invite you to challenge the proposition that citizens need the services of experi­ enced prac ising lawyers and that anything other than such services is second-rate and less than wnat should be provided to achieve the objects which you obviously hope to achieve.

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Finally, I invite you to explain why if something can be done in the Territory it cannot be done elsewhere in the Commonwealth. The Committee feels that the members of the public gain confidence by (as in the present Scheme) being able to select for themselves the legal practitioner they prefer.

You will appreciate the importance of such confidence. The members o f the profession and I feel members o f the public would for obvi­ ous reasons prefer independent lawyers in private practice to represent them in mat­ ters before Statutory Tribunals, such as a Valuation Review Board, the Design and Siting Review Committee and Commonwealth Employees’ Compensation Tribunals.

Announcements made from time to time since your speech referred to above was made suggest that a legal aid system different from that now operating in the Terri- toty, employing government lawyers, may be contemplated. If such is the case, the Committee believes it can demonstrate to you quite convinc­ ingly the desirability for the reasons stated above and other reasons (not the least of

which is the cost) of proceeding with schemes consistent with the views expressed by you and reported in Hansard. In any event, whatever course the Australian Government proposes to take, it is

desirable that the Committee be informed as soon as possible as to the Government’s intentions so that it may plan accordingly. It is recognised that the recommendations made in this report may not need to be adopted if the present Scheme is not to continue.

In this report I have not dealt with the history of the Australian Capital Territory Legal Aid Scheme as this has already been dealt with extensively by Mr Button in his report of 18.12.73. Reference to that report should fill in any gaps apparent in this report.

CONCLUSION

The Committee would like to record its thanks: (i) to the Secretary of your Department for making his officers freely available as and whenever necessary; (ii) for the great co-operation and continued assistance it has received from

officers of your Department; (iii) to the Registrar of the Supreme Court, the Clerk of Petty Sessions and their officers for their co-operation and assistance; (iv) to the legal profession and Law Society for making the Scheme work.

B. R. GALLEN Chairman

Dated 31 July 1974

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ATTACHMENT 1(A)

Radio Special Projects/TH

AUSTRALIAN BROADCASTING COMMISSION GUEST OF HONOUR

Dr Paul R. Wilson Broadcast 16.7.72,2FC, 7.15 p.m.

One o f the cornerstones o f our way of life is our con­ fidence that we will get a fair deal under the law. But do Australians get the lawyers they deserve?

One person who has made a study of law and lawyers in Australia is our Guest of Honour Dr Paul Wilson, Senior Lecturer in Sociology at Queensland University. In conjunction with Duncan Chappell, now Associate Professor of Criminal Justice at the State University of New York, he recently published a comprehensive analysis of the Australian law entitled The Australian

Criminal Justice System. D r Wilson has written three other books on crime and police forces in Australia and has been an advisoty consultant to the Victorian, South Australian and Queensland Police Forces.

a guilty party be established for divorce. Because of this we have the absurd situation where a simple undefended divorce averages out at between $600 and $800 and where a one-day defended divorce is likely to cost about $1,200. In my opinion divorce reform societies in all States have carefully documented these figures, and pro­

vide plenty of evidence to show that a substantial pro­ portion of people involved in defended divorces have to pay $5,000 or $6,000 for them. Cases of clients paying $30,000 are not unknown. With lawyers making some­ thing like $30m a year from current matrimonial cases and procedures it’s apparent that the legal profession does not want to chop off the proverbial hand that feeds it by changing present divorce procedures.

In 1962 Professor Fred Rodell of the Yale University Law School wrote in a leading American Law Journal:

. . . while law is supposed to be a device to serve society, a civilised way of helping the wheels go round without too much friction, it is pretty hard to

find a group less concerned with serving society and more concerned with serving themselves than the lawyers.

What Rodell wrote about the American lawyer in the 1960s applies very much to the Australian lawyer in the 1970s. Members of this exclusive profession are finding

their rearguard extremely vulnerable to criticism on at least three counts: firstly, that their costs in certain areas are excessively high; secondly, that the legal profession has failed to provide legal services within the reach of poorer sections of the community and therefore failed to

give credence to the oft-quoted principle that ‘all men are equal before the law’; and thirdly, that the legal pro­ fession has failed miserably to press for law reform on important socio-legal matters.

Now, as instances of excessive legal charges, the fields of motor vehicle accident claims, divorce, conveyancing and litigation costs in petty cases are very good examples. Lawyers’ fees take an average of a third of accident costs awarded to those injured or killed on the roads—which are seven times more than the medical and hospital costs involved. In fact, as economists Drs P. N. Troy and N. G.

Butlin have pointed out, it is only marginally better to be an injured party than to be a member of the legal pro­ fession dealing with third party cases following road accidents.

However the most obvious excesses in legal charges arise from outmoded laws and simple procedures which only occasionally need expert legal assistance. A classic example is the insistence of both the law and lawyers that

Lawyers’ financial interests in maintaining the legal status quo can clearly be seen in matters of probate and conveyancing. Everyone I think knows that a clerk can, and usually does, most of the work in these areas. Only occasionally are the professional skills of a solicitor necessary to untangle complicated legal problems. How­ ever, even though clerks do most of the work for people

buying or selling a house, fees for conveyancing are cal­ culated on the assumption that the solicitor does the bulk of the work. Now this means that in New South Wales, just to take one State, the legal costs of transferring a

$20,000 property came to $175.60 for the transfer, plus about $20 expenses for the inquiries into the title. And if the buyer takes out a $15,000 mortgage he pays the legal costs of the two solicitors involved which comes to $210—all this for work which takes a clerk one or perhaps two days.

Professor Wootten of the New South Wales Law School has suggested that the establishment of a group of sub-professional lawyers or legal clerks to carty out con­ veyancing and other routine legal work would mean a substantial saving to the Australian public. This step together with an insurance scheme protecting clients against fraud and negligence would really help to lower conveyancing and probate costs. But not unexpectedly the Professor’s ideas have met with strong opposition from the legal fraternity.

Taking some of the law away from lawyers has great advantages in other areas as well. Most people who are owed amounts of money up to $100 or who dispute the price that a plumber has charged for fixing a tap would rarely go to solicitors and then to the courts to settle the matter. They know quite well that the legal costs in­ volved would often exceed the debt which they might collect. The obvious thing to do in petty litigation cases involving small sums of money is to set up a non-legal

12

court. In this court a lay magistrate would act as an arbitrator and settle the matters. Lawyers would be ban­ ned, the rules of evidence eliminated and almost all forms o f paper work prohibited. This would allow people to settle minor claims simply, effectively and

without unnecessary legal costs.

But would law associations agree to this innovation? Given their reluctance to change conveyancing pro­ cedures, to reform divorce laws, to press for changes in motor accident compensation cases one very much doubts it.

My second major criticism of Australian lawyers relates to the scarcity o f legal services offered to the poor and not so poor in this country. In fact the record of Aus­ tralian criminal legal aid is distinguished only by its inad­ equacy. 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 law­ yers. 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. In Queensland, for example, legal aid is available only to those whose assets do not exceed $2,000, and who earn less than $2,000 a year. Effectively, o f course, this means that any low income family which owns a car cannot qualify for legal aid.

If the legal profession and governments are really con­ cerned 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.

Certainly the neighbourhood law firms in the United States or the Citizens Advice Bureaux in England could well be copied here in Australia, providing an inexpen­ sive and accessible legal service in poorer areas. Both

these overseas institutions have succeeded in securing government finance as well as the idealism of young members of the profession. But in Australia the pro­ fession has yet to show the same idealism or ask for simi­

lar government support.

Finally let me turn to my third and perhaps major criticism of the legal profession—their lack of invol­ vement in major social issues and problems confronting Australian society. Now partly this results from the lack of education law students receive in such things as legal aid to the poor and to disadvantaged groups in the com­

munity like Aborigines; it relates as well to the lack of training law students receive in such vital areas as con­ sumer protection law, environmental law, criminology, and social problems generally. To be sure some univer­

sity law schools, particularly those at New South Wales, Monash and Melbourne universities, have courses in these subjects. But most university law schools pay little if any attention to them.

In any case it is likely to be a number of years before a new breed of socially motivated lawyers begins to have a significant impact on Australian society generally and the criminal justice system specifically. And of course their task will be made extremely difficult because of

regulations which effectively prevent lawyers from mak­ ing public statements using their professional titles. This regulation, part of the very strict ban which law as­ sociations employ to stop lawyers advertising, has stifled

criticism of the legal profession, of the courts and the law and also of the criminal justice system generally by the people who are most qualified to criticise these matters— that is, the lawyers themselves. In my view the failure of

the New South Wales Bar Association to speak out forc­ ibly on why. a sergeant who revealed the true state of crime in N.S.W. was dismissed from the police force is quite inexcusable.

The injustices and the contradictions in our civil and criminal laws and procedures are many. For example, the gross inadequacy o f our legal assistance schemes and the paltry sums of money which State governments give

to victims of crime are both topics about which law as­ sociations should speak out. But usually they don’t. They prefer to use the rather weak excuse that these issues are essentially ones which politicians should solve—it is not,

they say, lawyers ’ business. In a similar way this excuse is also used for not attacking Australia’s pre-trial and bail procedures. Although locking a man up in prison before he is convicted of an offence contradicts the precept of British and Australian justice that a man is presumed innocent until proven guilty, in the four largest States on any given day 500 people will be spending an average of

five weeks in prison waiting for their cases to be heard. Now, whether it be on these matters, or on weak pol­ lution laws, or on haphazard and random sentencing practices and inefficient court procedures, the law socie­ ties remain silent. They prefer to hide timidly in pro­

fitable introspective silence. The silence, of course, does nothing to contradict the views of a very courageous Syd­ ney barrister who recently accused the New South Wales Bar Association of simply being a monopoly group intent on limited trade union objectives—the major objective of course being to pour more money into lawyers ’ pockets.

The majesty of the law, like the Australian national anthem, is overwhelmingly British. Ermine-robed judges in full-bottomed wigs continue to sentence felons in a degradation ceremony of imposing splendour. While presumed innocent until proved guilty beyond a reason­

able doubt, the accused sits in the dock throughout his trial, an isolated and guarded figure on display to the court at large.

In his isolation the accused listens to words and phrases which often sound like a foreign language. What Stuart Chase has called gobbledy-gook— using too many and too big words where fewer and shorter words would

do a better job— often appears to be a way lawyers try to keep the law away from laymen. Squandering words, packing a message with excessive baggage and so introducing semantic noise helps to add to the legal

mystique.

Breaking down the legal mystique in all its forms should be the endeavour of every lawyer. But this is simply not the case. And this is precisely the trouble with lawyers. It seems to me that most lawyers prefer to

remain aloof from the common man and apart from the broader problems of Australian society.

13

Professor Rodell, the law professor I mentioned at the doubt at all that unless lawyers change their ways quite beginning of this talk, grandly advocates the abolition of dramatically society will demand a criminal and civil jus- | the legal profession. He wants a world without courts or rice system which does not pivot so much around the lawyers, o f non-lawyer experts deciding disputes, legal profession. One wonders whether this might hot be 1

Rodell’s world will probably never come. But there is no such a bad thing.

!|

14

ATTACHMENT 1(B) IDB:SK 18 July 1972 The Editor ‘Canberra Times’

18 Mort Street Canberra City, A.C.T.

Dear Sir, Re: L egal Aid in the Australian Capital Territory

In the Canberra Times o f 17 July there was reported a talk given by D r Paul R. Wilson over the ABC on 16 July. In view o f the nature o f the report in your paper I decided to obtain a complete transcript of what was said

by Dr Wilson. I have examined it carefully and I have also noted the leading article in the ‘Canberra Times' of 18 July, headed ‘ The Law and the People The report o f D r Wilson’s talk and the transcript of what he actually said contained numerous inaccuracies and many misrepresentations of the actual position. I hope the Law Society o f this Territoiy will make some statement and give the public the facts but I propose to confine what I wish to say to D r Wilson’s statement relat­ ing to the ‘scarcity of legal services offered to the poor

and not so poor in this country ’. I think it is worthwhile to note what D r Wilson has said in this regard and I quote from the transcript:

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 per­ sons 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 o f 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 o f slick salesmen, o f fraudu­ lent hire-purchase agreements, o f high divorce costs . . .

If the legal profession and governments are really concerned with the legal rights o f the weaker, or indeed all, members o f Australian society then the limitations o f Australian legal aid schemes will have

to be recognised. Certainly the neighbourhood law firms in the United States or the Citizens Advice Bu­ reaus in England could well be copied here in Australia, providing an inexpensive and accessible

legal service in poorer areas. Both these overseas institutions have succeeded in securing government finance as well as the idealism of young members of the profession. But in Australia the profession has yet

to show the same idealism or ask for similar govern­ ment support.

O f necessity my remarks will be confined to the position in this Territory: On 1 March 1972 there came into force in this Territory a Legal Aid Ordinance which provides a most

comprehensive scheme of legal aid in criminal and civil matters. Under it aid can be granted in any civil and criminal matter from the Petty Sessions Court upwards. There is no reason whatever why any person in this Territory (nor indeed any person residing elsewhere but

involved in a matter in the Courts here) should not be adequately and properly represented by members o f the legal profession. The Scheme in force here, I believe, has no exact

counterpart anywhere else in Australia. Our Legal Aid Scheme is administered by members of the legal pro­ fession free of charge—other Legal Aid Schemes in Australia are administered on a similar basis.

The legal profession in this Territory has always had an active interest in legal aid and still does. For many years prior to 1 March 1972 it had been pressing the Commonwealth Government to introduce a comprehen­

sive legal aid scheme here but this was delayed until the regulation of the profession was achieved. However the Government had not been idle—it introduced a prelimi­

nary scheme in 1966 and an enlargement thereof in October 1968. The latter continued until the coming into force o f the Legal Aid Ordinance this year. Under these schemes which worked in collaboration with the pro­

fession, many hundreds o f people were provided with aid subsidised by the Commonwealth and carried out by the profession on a reduced fee basis. The present scheme also works on a reduced fee basis

and is subsidised by the Government to the extent o f 100 per cent of the reduced fees. This will continue until such time as there are sufficient funds in the Fidelity Fund of the legal profession, when payments for legal aid will be

met from that fund. Under the present scheme 237 applications for legal assistance have been received. However, prior to 1966 and indeed subsequently, legal aid was provided by the legal profession as far as it could, with the consequent actual financial contribution

by it of many many thousands of dollars. No profession could continue on that basis; the Government recognised that as well, hence the introduction of the interim schemes in 1966 and October 1968 and the Ordinance earlier this year.

The provision of proper and comprehensive schemes of legal aid is just as necessary in the interest of the com­ munity at large as health schemes. Both the Government and the profession have long since recognised that fact.

So far as this Territoiy is concerned, the statements made by Dr Wilson as to: (1) the scarcity of legal services offered to the poor and not so poor in this country,

(2) that criminal legal aid is distinguished only by its inadequacies, (3) that 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, are all untrue.

Yours faithfully, J. D. BUTTON Chairman

15

ATTACHMENT 2 ANALYSIS OF APPLICATIONS

1. Civil M atters A. Divorce (to petition or defend) g r a n t e d ................................................................... 143

r e f u s e d ................................................................... 16

not proceeding ..................................................... 41

pending ............................................................... 12

applications .................................................... 212

B. Maintenance (to claim or defend) g r a n t e d .................................................................... 99

refused .................................................................... 8

not proceeding ..................................................... 40

applications ..................................................... 147

C. Other Civil Cases (Tort, Contract, Custody in Su­ prem e Court, workers com pensation including appeals) g r a n t e d .................................................................... 66

r e f u s e d .................................................................... 24

not proceeding ...................................................... 17

pending ............................................................... 8

applications ..................................................... 115

D. Opinions in complex matters under section 34(2) g r a n t e d .................................................................... 32

r e f u s e d .................................................................... 2

not proceeding ..................................................... 3

applications ................................................ 37

E. Tribunals and Proceedings before a Coroner g r a n t e d .................................................................... 3

r e f u s e d .................................................................... 1

applications ................................................ 4

TOTAL CIVIL M A T T E R S ........................... 515

2. Criminal Matters A. Serious Summaty Cases (Petty Sessions) g r a n t e d ................................................................... 96

r e f u s e d ....................................................................... 16

not proceeding ..................................................... 19

applications ..................................................... 131

B. Committals (for trial or sentence—Petty Sessions) g r a n t e d .................................................................... 56

r e f u s e d .................................................................... 2

applications ................................................. 58

C. Trials (including some matters which became pleas of guilty or where the Crown ultimately did not proceed as a result of representations made by the applicant’s legal practitioner)

g r a n t e d .................................................................... 52

r e f u s e d .................................................................... 1

applications ................................................. 53

D. Pleas o f Guilty g r a n t e d .................................................................... 47

r e f u s e d .................................................................... 1

not proceeding ..................................................... 4

applications .......................................................52

E. Appeals (to Supreme Court and High Court) g r a n t e d .................................................................... 14

r e f u s e d .................................................................... 2

not proceeding ..................................................... 3

applications ................................................. 19

F. Keep the Peace and Domestic Assaults g r a n t e d ..........................................................................23

refused .................................................................... 4

not proceeding ..................................................... 10

applications ................................................ 37

TOTAL CRIMINAL MATTERS . . . . 350

Civil M a tte rs..................................................................... 515

Criminal Matters ......................................................... 350

TOTAL DEALINGS ...................................... 865

16

71/527

9 August 1973

The Chairm an Legal Aid Committee o f the Australian Capital Territory Beauchamp House Canberra, A.C.T.

Dear Sir, Financial S tatem en ts for year ended 3 0 June 1973

The accounts and records o f the Legal Aid Committee of the Australian Capital Territory and the Statement of Receipts and Payments for year ended 30 June 1973 have been examined and, in accordance with section 23 (2) o f the Legal A id Ordinance 1972, I now report that—

ATTACHMENT 3

(a) the Statement o f Receipts and Payments is based on proper accounts and records;

(b) the Statement is in agreement with the accounts and records; and (c) the receipt, expenditure and investment of money and the acquisition o f assets by the Committee

during the year have been in accordance with the Ordinance except that there were instances where, although the Committee had determined that legal aid granted should be subject to a con­ tribution by the legally assisted person towards the costs of the matter, the amount paid by the

Committee to the barrister and solicitor was not appropriately reduced by such contribution, as required under sections 57 (2) and 58 (3) of the Ordinance. Similar instances, affecting section

57 (2) only, were referred to in the Auditor General’s report on the Financial Statements for the period 1 March to 30 June 1972. No assets were disposed of during the period.

Yours faithfully, D. R. STEELE CRAIK A uditor-G eneral f o r the Commonwealth

17

ATTACHMENT 5

COMMONWEALTH OF AUSTRALIA

Speech by

SENATOR THE HON. L K. MURPHY, Q.C.

Attorney-General and Ministerfor Customs and Excise on

LEGAL AID Ministerial Statement

[From the ‘Parliamentary Debates', 13 December 1973]

Senator MURPHY (New South Wales—Attorney- G eneral and M inister for Customs and Excise) (12.36)—I seek leave to have incorporated in Hansard a Statement on legal aid.

The PRESIDENT—Is leave granted? There being no objection, leave is granted. (The document read as follows)— I undertook to provide honourable senators with a

comprehensive statement upon the subject o f legal aid. This is a highly important subject and I shall deal with the progress already made and the Government’s plans. On 25 July 1973 I announced a major step in the pro­ vision o f legal aid services to persons in need, particu­ larly disadvantaged persons. This was the establishment of a salaried legal service called the Australian Legal Aid

Office that will have offices throughout Australia. It will provide legal advice and assistance on all matters of Fed­ eral law, including the Matrimonial Causes Act, to every­ one in need; and on matters o f both Federal and State law, to persons for whom the Australian Government has a special responsibility, for example, pensioners, Aborigines, ex-servicemen and newcomers to Australia. The offices will provide a referral service in other cases.

Another step that I announced at the same time was the appointment of a widely representative committee to examine all aspects o f legal aid in Australia. Honourable senators will recall that earlier in the year—on 30 April

1973—1 announced Government approval of a grant of $2m to the States on a per capita basis to supplement their existing legal aid schemes. This was an interim grant for this financial year, designed to effect a quick improvement in the availability o f legal aid. This would not, o f itself, ensure the provision o f aid in all areas that might be desired. Apart from this, the Minister for Abor­ iginal Affairs (Senator Cavanagh) had introduced an

Aboriginal legal aid scheme designed to make special provision for aid for Aboriginals through non­ government Aboriginal legal services in the States and Territories. There will be co-operation between the Aus­

tralian Legal Aid Office and the Aboriginal Legal Ser­ vices. A special scheme for the provision of legal aid in cases raising environmental or conservation issues is being developed in conjunction with the Minister for

Environment and Conservation (D r Cass). A grant o f aid has been made to the Tasmanian Conservation Trust in the Precipitous Bluff case in Tasmania.

The Government has taken action because it believes that one of the basic causes of the inequality of citizens before the law is the absence of adequate and compre­ hensive legal aid arrangements throughout Australia. This is a problem that will be within the knowledge of every honourable senator who will on many occasions have had to inform citizens seeking assistance with their legal problems that there is nothing that he can do for

them; that they will need to go and see a private solicitor. With some exception, we in Australia have been slow to respond to the need o f the ordinary citizen for ready and

equal assistance when confronted with a legal problem or court proceedings. The ultimate object of the Govern­ ment is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended

for advice and assistance short of litigation as well as for litigation in all legal categories and in all courts.

There are four 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 th e‘bottomless pit’ of ever encreasing costs o f providing legal aid.

Even a cursory examination of the position in relation to legal aid in each of the Australian States discloses sig­ nificant gaps in the provision of aid and a good deal of unevenness from State to State in the kind and

comprehensiveness of existing legal aid arrangements. The arrangements in some States approach much nearer to the ideal of making comprehensive provision for legal aid for all kinds of litigation and for all courts; in others there are deficiencies either in relation to the nature of

the proceedings for which legal aid is provided or in rela­ tion to the courts in which aid is provided or both. There have been moves by the Law Societies to set up njght referral services but, apart from a quite recent initiative in one State, there is no general availability of legal advice and assistance short of litigation. In some States there is a Public Solicitor with a strict means test and quite limited functions. In all States and in the Australian Capital Territory there are schemes administered by the

19

Law Societies or Legal Aid Committees under which pri­ vate practitioners act in certain court proceedings and are paid a percentage o f their normal fees from funds partly provided by Governments and partly by statutoiy interest on practitioners’ trust accounts. In the Northern Territory there is an interim scheme pending the introduction of a Legal Aid Committee scheme. Up to the present, the Law Society schemes have failed to pro­ vide adequate legal aid for divorce proceedings. Where legal aid has been provided, substantial contributions towards the cost of the proceedings have been levied upon the applicant. There has been a good deal of criti­ cism by divorce law reform associations and others about

the absence o f suitable arrangements for aid. This is a social problem that must be remedied. The grant o f $2m this year should effect a major improvement in most States.

There has been much criticism of the failure of most legal aid schemes to provide representation in magis­ trates’ courts. In some States there are Public Defenders who appear for defendants in trials for indictable offences and in other criminal proceedings in courts other

than magistrates’ courts. It is usually the socially disad­ vantaged person who is unrepresented in magistrates’ courts and persons who are unrepresented are

prejudiced. This has properly become an issue on the part o f organisations concerned with the protection of civil liberties. Many people are ignorant of their legal

rights and what legal aid facilities are available. Indeed, because o f their circumstances or educational back­ ground, many simply do not know how to go about get­ ting help to identify the problem and to seek a solution. In endeavouring to provide proper arrangements for

legal aid, it is worth noting the warning of the Lord Chief Justice o f England, Lord Widgery, who spoke in Perth this year o f the twin ogres of cost and delay. He referred

to the legal aid system operating in England and went on to warn of the bottomless pit that it was feared the English legal aid system might become.

On the problem of the provision of legal advice and as­ sistance on an equal basis throughout Australia, I believe that the Australian Legal Aid Office will make an impor­ tant contribution towards filling the gap between referral services and Law Society or Legal Aid Committee schemes for aid in specified litigation. It is the view o f the Government that legal assistance to socially disad­

vantaged persons can most effectively be provided through a salaried legal service. For this reason the Aus­ tralian Legal Aid Office has been established. The Office will be staffed by salaried lawyers who will work in close co-operation with community welfare organisations, es­ tablished legal aid schemes, referral centres and the pri­ vate legal profession. I hope that the young lawyer with a social conscience will be attracted to join the Office and, in particular, the woman lawyer who has a talent for this

kind of work. I have already received letters both from women lawyers and women law students expressing their interests. To get the Office operating quickly in the capital cities, the existing Legal Service Bureaux that provided advice and assistance to servicemen, ex­ servicemen and their dependants have been utilised. I should add a word of caution—to say that the office will not be able to provide a full service until additional staff

have been recruited. Advertisements have been placed nationally seeking talented lawyers to join the office. The results of this recruiting campaign will be known soon.

The service that the Office will provide, broadly stated, will be: first, a general problem-solving service o f advice and assistance short of litigation to persons with an el­ ement of financial need—this will, in my view, take care o f some 90 per cent of all problems that worry the ordi­ nary citizen; and secondly, the conduct of litigation, par­ ticularly family law, environmental and other litigation in areas of special concern to the Australian Govern­ ment, on behalf of persons who cannot afford the cost of representation in court.

But I do not see the new Office operating merely in buildings in capital cities. I have been impressed by over­ seas developments, with which many honourable sena­ tors will be familiar, that have discarded the traditional conservative approach to legal aid and have set up ‘store-front ’ offices in cities and country areas where law­ yers are few and problems are great. I see the role of the Australian Legal Aid Office as taking the law to the people who most need it. I want to see small unpreten­

tious ‘store-front ’ offices opened in the suburbs of the cit­ ies and in country centres. I want them to be the kind of offices to which the ordinary man or woman faced with a legal problem will go as readily as he or she would go to the garage with an ailing motor car. My intention is that

the Australian Legal Aid Office would work alongside and in co-operation with bodies o f all kinds that are con­ cerned with solving the problems of the citizen and especially, of course, with the private legal practitioner. I

believe that there is not only scope but a clear need for legal aid offices that are spread throughout Australia where need is greatest; offices that are staffed by salaried lawyers and that serve as a centre of legal aid activity.

They would work with law students who wish to come in and help with the legal advice and assistance or with the Law Societies and Legal Aid Committees through which the private legal profession would continue to handle the greater part of litigation in the courts. The role of the Office will be complementary to the role of the private practitioner and, indeed, be an advantage to him in pro­ viding continuity and proper preparation o f legal aid matters referred. Area or regional offices o f this kind appear to have worked successfully overseas, notably in the Province of Ontario in Canada.

There have already been encouraging discussions with student referral services and community legal referral services and it is intended to enter into discussions with Law Societies and other interested bodies as soon as possible. I should add that the Government has made an interim grant of financial assistance to the Fitzroy Legal Service in the suburbs of Melbourne as a pilot scheme of the ‘store-front’ law office type. I envisage that the decentralised ‘store-front ’ offices of the Australian Legal Aid Office could provide administrative support bases

for community services of this kind. It is more difficult to provide a satisfactory answer to the problem of represen­ tation in magistrates’ courts. This applies particularly in criminal cases where the defendants have been arrested or attend on summons and questions of bail, pleas of guilty and adjournments need to be dealt with. In the Australian Capital Territory and the Northern Territory

20

I would propose to have an officer of the Australian Legal Aid Office attend at the Magistrates’ Courts to advise persons in custody on bail, and on pleas o f guilty. If proceedings are to be defended, the defendant would, in appropriate circumstances, be provided with represen­

tation under the legal aid schemes operating in the Terri­ tories or by the Public Defenders’ Offices that I intend to establish in the Territories. Similarly, I would propose to have an officer attend the magistrates’ court in Sydney known as the Special Federal Court. But these arrange­ ments would leave substantially untouched the problem o f providing legal representation before a very great number of magistrates’ courts in the States that handle some 90 per cent of the total volume of litigation.

I think that this is a problem that I should specifically refer to the Committee that I have appointed. One ap­ proach that attracts me—and I hope the Committee will look closely at it—is the scheme o f ‘Duty Counsel’ or

‘Duty Solicitor’ that operates in Scotland and Ontario. This scheme involves attendance by private practitioners at magistrates’ courts on a roster basis. They attend to bail, pleas and adjournments. They give advice to per­

sons in custody and are paid a daily or hourly fee from legal aid funds. Cases would be referred by the Aus­ tralian Legal Aid Office, Legal Aid Committees or refer­ ral services. An alternative would be to employ salaried lawyers but this could be costly where there are many widely scattered courts. I have said that I see private legal practitioners, through their Law Societies or Legal

Aid Committees, performing the major work in the legal aid field, that of litigation in the various courts. I hold firm views about the necessity for a strong and indepen­ dent private legal profession that can stand between the Government and the citizens, not least in the fields of human rights, civil liberties and criminal matters generally.

Having said that, I return to Lord W idgery’s warning about the bottomless pit that legal aid could become. It can vety well become such a pit in Australia unless action is taken to deal with the problem of divorce costs that

have come close to wrecking the legal aid schemes of more than one State. Honourable senators are familiar with my views about the sum that ought to be charged by

solicitors in an undefended divorce case. I shall be introducing legislation to change the basis of divorce from an adversary system to a single ground o f per­ manent breakdown o f marriage for more than 12

months and to simplify procedures. This will in itself reduce costs. I am determined to see that legal aid is made available in divorce matters for everyone in need

and without requiring them to pay excessive contribu­ tions towards the costs. I am also determined to see that divorce does not become the bottomless pit of legal aid in Australia. My own view is that the Australian Govern­

ment will need to provide continuing funds for legal aid but that the funds should not necessarily be made avail­ able in the same way as this year. What future provision

will have to be made can only be assessed after a full examination of the problem. I am looking to the Com­ mittee I have appointed for assistance in this matter. I have previously announced the constitution and

terms o f reference o f the Committee but I should record them for the information of honourable senators. I appointed the following persons to be members of the Committee: Mr Roy F. Turner, a member of the Council

of the Law Society of New South Wales and a Vice Presi­ dent of the Law Council o f Australia, the Chairman of the Committee; Mr Justice J. H. Wootten of the Supreme Court of New South Wales, past President of the Abor­

iginal Legal Service; Mr J. A. Heffeman, Secretary of the Victorian Legal Aid Committee; Mr E. P. Mullighan, a member of the Executive Committee and Honourary Treasurer of the Law Society of South Australia; Mr W. A. Lalor, the Public Solicitor of the Territory of Papua

New Guinea; Miss Eilish Cooke, a barrister and solicitor of Melbourne and a member of the Fitzroy Legal Ser­ vice; and Mr J. P. Harkins, a senior officer of the Attor­ ney-General ’s Department.

The Committee has been asked to examine the areas of need for the provision of legal assistance and advice and, in particular, the areas o f need not covered by exist­ ing schemes; the means by which legal assistance and

advice should be provided and in what areas should they be provided by a salaried legal service; and the means by which finance for schemes of legal assistance and advice should be provided. The Chairman of the Committee has

told me that the Committee expects to provide me with an interim report soon. I shall keep honourable senators informed of progress in the provision of better legal aid. The Government’s aim is that eventually no person anywhere in Australia should suffer injustice because of the unavailability of legal advice or inability to afford the cost o f representa­ tion in court proceedings.

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