Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Australian Legal Aid Review Committee - 2nd report, March 1975


Download PDF Download PDF

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1975— Parliamentary Paper No. 89

AUSTRALIAN LEGAL AID

REVIEW COMMITTEE

SECOND REPORT March 1975

Presented by Command 21 May 1975 Ordered to be printed 29 May 1975

THE GOVERNMENT PRINTER OF AUSTRALIA CANBERRA 1976

Printed by Authority by the Government Printer of Australia

187 Macquarie Street

Sydney

N.S.W. 2000

March, 1975

Dear Minister,

I have the honour to submit to you the

Second Report of the Legal Aid Review Committee.

Yours sincerely,

(Roy F. Turner) CHAIRMAN

The Honoxirable Keppel Earl Enderby, Q.C., M.P.

Attorney-General of Australia

Parliament House

CANBERRA A.C.T.

CONTENTS

Committee

Terms of Reference

Report

Part 1 Introduction 1

Part 2 Duty Solicitor 6

Part 3 legal Services Commission 9

(a) Submissions and Proposals 9

(b) The Need 11

(c) Composition of the Commission 13

(d) Functions of the Commission 17

(e) Co-ordination with law Reform 23

Bodies

Part 4 Funds for Legal Aid 26

Appendices A Submissions by law Council of 27

Australia and law Institute of

Victoria

B Duty Solicitor Scheme - South 31

Australia

C letter from New South Wales 41

Commissioner for Legal Aid Services

to Editor of 'The Sydney Morning

Herald' - 28 November, 1974

LEGAL AID REVIEW COMMITTEE

CHAIRMAN

COMMITTEE

Mr Roy F. Turner

Ms E.J. Cooke

Mr J.P. Harkins

Mr Justice Lalor

Mr E.P. Mullighan

Professor R. Sackville

Mr J.A. Heffernan

Mr A.G. SECRETARY Towill

TERMS OF REFERENCE

The Committee has been asked to examine:

. the areas of need for the provision of legal

assistance and advice and, in particular,

the areas of need not covered by existing 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.

REPORT

Part 1 ; INTRODUCTION

1.1 The Committee was concerned in its first report

to stimulate thought and discussion concerning the provision

of legal aid and to obtain the views of persons and bodies

engaged in this field. Since that time there have been

major developments in every State and Territory in both

governmental and private schemes. All bodies concerned with

legal aid have initiated or proposed substantial extensions

of existing services. The deliberations of the Committee

have been increasingly concerned to consider proposals made

to it as to the manner in which these bodies might be

assisted, co-ordinated and financed, so as to provide

adequate legal assistance throughout Australia.

1.2 The Committee has been greatly assisted in the task

of formulating recommendations as to the provision of legal

aid by proposals made to it by interested persons and

especially by professional bodies administering schemes.

The Committee is particularly indebted to Professor

R. Sackville, Commissioner : Law and Poverty, Australian

Commission of Inquiry into Poverty, for making available

his comprehensive and stimulating Discussion Paper on

'Legal Aid in Australia'.

1.3 In preparing this report the Committee has agreed

that the goal of legal aid services in Australia should

not be limited to the provision of assistance to individuals

experiencing legal problems, although this is a primary

function. The Committee agrees with the conclusion reached

by Professor Sackville in his Discussion Paper (para. 1.7) -

1

Introduction - continued

"One of the fundamental choices to be made in establishing or reorganising a system of legal aid is to determine whether the services provided should be confined solely to meeting the needs of individual clients or should extend to the use of the legal process to attempt to change the political economic and social status of the poor. In Australia the more limited approach has been taken, but if the law is to play a significant role in improving the position of large numbers of disadvantaged people the broader view should be accepted. This approach involves the use of such techniques as test cases brought to develop principles in areas not previously judicially explored or designed to stimulate changes in legislation or administrative practices. In addition legal aid agencies should be prepared to press for the introduction of reforms in the interests of dis­ advantaged groups, by the formulation and presentation of draft legislation and other proposals for change. A further function of legal aid should be participation in activities designed to overcome the 'powerlessness of the poor' their inability to resist or shape the forces that impose inequities and hardship upon them."

Clearly the implementation of a national legal aid scheme in

accordance with this philosophy presents many challenges

and problems. However, with the establishment of the

Australian Legal Aid Office some of these have already been

tackled. One major responsibility of the Legal Services

Commission which this report proposes will be to explore the

means of implementing the changes dictated by a broad philosophy

of legal aid.

1.4 Professor Sackville's Discussion Paper is

primarily concerned with the need for better legal

services for the poor. The Committee considers, having

regard to its terms of reference, that its charter extends

beyond the provision of legal aid for people who can be

classified as poor. The Committee notes, for example,

that legislative provision has been made for legal

aid of a general nature in consumer protection matters in

2

Introduction - continued

the Trade Practices Act Section 170 (2) and by provision

in the Family Law Bill Section 117 (4) for legal aid in

family law matters. The Committee also notes than an

environmental legal aid scheme is being developed in

conjunction with the Minister for the Environment and

Conservation and that the Australian Legal Aid Office will

provide legal aid to assist conservationists wishing to

take legal action to overcome pollution, environmental

damage and other problems of such nature of concern to the

community.

1.5 In this report the Committee has considered three

matters. First, the most apparent deficiency in the

provision of legal aid namely, the lack of legal advice

and representation for persons involved in criminal

proceedings in courts of summary jurisdiction. This is a

matter which has concerned all legal aid bodies and there

is substantial agreement among them that the Duty Solicitor

concept provides, at least, the first step in the solution

to the problem. When it is considered that throughout

Australia there are close to one million persons convicted

each year in these courts the magnitude of the problem is

seen. The Committee considers that there is a need for the

extension of legal aid to courts of summary jurisdiction on

a larger scale than has hitherto been attempted, but that

further information should be obtained before detailed

recommendations are made as to the method in which Duty

Solicitor schemes should be funded and administered.

Accordingly, as will be seen, the Committee recommends the

provision of funds for the establishment of pilot Duty

Solicitor schemes in several Australian States.

1.6 Secondly, the Committee has considered the question

of the desirability of establishing a permanent body

concerned with the provision of legal services on a national

basis. In its first report the Committee recommended as

follows -

3

Introduction - continued

"9. The Committee does not favour the establishment of a legal aid organisation that would control all legal aid services. However the Committee does recommend further consideration being given to the forming of an Australian Legal Aid Advisory Commission."

Since that time the concept of a national Commission has

been considered by the Law Council of Australia and

submissions have been made concerning it by a number of

professional bodies concerned with legal aid. (See Appendix

Ά' - Submissions by Law Council of Australia and Law

Institute of Victoria). From its own viewpoint, the

Committee has been increasingly aware of the need for a

permanent body with adequate staff to carry out the

necessary research upon which a national policy of legal

aid could be formulated and implemented. The Committee is

unanimously of the opinion that a statutory Commission

should be established immediately. Recommendations have

been made concerning the composition of the Commission.

1 .7 The Committee has given consideration to the

question of whether the Commission should be basically an

advisory body or whether it should become responsible for

the provision of legal services by assuming direct control

of the present federal salaried legal service, the

Australian Legal Aid Office. No agreement was reached on

this point and the considerations relative to both views

are briefly set out.

1.8 Finally, the Committee considered the question

of funding legal aid schemes. In the short term the

Committee was concerned to ensure that existing legal aid

services were maintained at current levels. It is clear,

however, that the long-term financing of legal aid in

Australia necessarily involves a substantial commitment of

Australian Government funds. A detailed statement of the

Australian Government's role in the financing of legal aid

is, however, necessarily dependent on the formulation of

policy on a wide range of issues that must be the concern

4

Introduction - continued.

of the statutory Commission the establishment of which is

recommended in this report.

5

Part 2 : DUTY SOLICITOR

2.1 There is widespread agreement that the major area

of need not covered by existing'legal aid schemes in

practice is the provision of representation in criminal

matters in courts of summary jurisdiction. Although some

existing legal aid schemes do extend to representing

defendants charged with offences in such courts, for the

most part accused persons unable to afford their own

counsel, will be forced to appear unrepresented. The

alarming extent to which accused persons are not represented

by lawyers in courts of summary jurisdiction has been

recently documented for New South Wales and the position

revealed in that study, insofar as it represents the position

elsewhere in Australia is plainly one that cannot be regarded

with equanimity by the community. This is especially so when

account is taken of the effect of legal representation on the

favourable outcome of the case from the defendant's point of

view.

2.2 Duty Solicitor schemes are an attempt to provide all

defendants appearing before magistrates' courts with some

basic legal advice and assistance prior to their appearance

in court. Under such a scheme a Duty Solicitor attends

sittings of magistrates' courts and is available to advise

and represent persons charged with criminal offences.

2.3 The Committee sees as the primary function of a

Duty Solicitor to be that of advising a person taken into

custody, and before any appearance to a charge, of his right

to plead guilty or not guilty and his right to apply for bail

or an adjournment. The Duty Solicitor should also make

representations with respect to sentence in minor offences

where the accused wishes to plead guilty after the elements

of the offence have been explained to him. Where an accused

wishes to plead 'not guilty' the Duty Solicitor would seek to

obtain an adjournment so that the accused would have the

opportunity to apply for legal aid from one of the existing

6

Duty Solicitor - continued

legal aid services. The Duty Solicitor would assist the

accused in making his formal application for legal aid.

All accused would he entitled to this assistance from the

Duty Solicitor regardless of means.

2.4 The Committee does not contemplate the conduct of

a defence as a part of the normal function of a Duty

Solicitor because the professional services performed by a

Duty Solicitor are intended to be of a limited nature.

There may be special circumstances where it is desirable in

the interest of the accused and the administration of justice

that the Duty Solicitor should be allowed to conduct a

defence. An example of this would be where an accused is

charged with a relatively minor offence and he wishes to

enter a plea of 'not guilty', The Duty Solicitor, if

permitted to do so, could expeditiously defend the charge

during the period for which he is the Duty Solicitor. The

circumstances may be such that it is apparent that the

accused will qualify for legal aid from one of the existing

legal aid schemes and the administrative cost of referring

the case to an existing legal aid scheme and having the

accused make application for legal aid may be out of all

proportion to the nature of the charge and the nature of the

defence involved. A complete prohibition against the Duty

Solicitor conducting a defence will result on occasions in

hardship to the accused, the unnecessary postponement of

trials and the incurring of unnecessary costs. (Mr Martin Q.C.,

Toronto, adverted to these matters in an address delivered

to the joint meeting of the Barristers' Society of New

Brunswick and the Novia Scotia Barristers' Society on June 30,

1967.)

2.5 In its first report the Committee recommended that

funds should be made available to establish and maintain

Duty Solicitor schemes. Legal aid bodies in all States have

proposed that funds be provided for such schemes and indeed

are already operating in several States. An example of such

7

Duty Solicitor - continued

a proposal is included in Appendix 'B ' to this report.

2.6 In view of the cost of establishing Duty Solicitor

schemes on an Australia-wide basis the Committee has

reconsidered the matter. It has reached the conclusion

that, although Duty Solicitor schemes have great merit,

before any substantial allocation of funds is made to

establish such schemes, an evaluation should be made of a

number of pilot schemes in different areas. The pilot

schemes should be undertaken by law Society legal aid

services, State salaried services and the Australian Legal

Aid Office. One purpose of the evaluation would be to

determine the comparative cost of providing Duty Solicitors

through a salaried service and through private practitioners.

Another would be to develop criteria for assessing the

effectiveness of the schemes, although it is likely that

effectiveness will have to be judged by the participants

in the scheme - lawyers, assisted persons and magistrates.

The pilot schemes should give some indication of the demand

for Duty Solicitor services and the feasibility of meeting

that demand on a national basis.

2.7 The Committee therefore recommends that the sum

of $250,000 be allocated to finance the establishment of

pilot Duty Solicitor schemes in several Australian

jurisdictions each to last for a minimum period of three

months. The areas to be served by the pilot schemes and

the bodies responsible for their administration should be

chosen in conjunction with the Australian Institute of

Criminology, which should be responsible for the evaluation

of the schemes. Upon completion of the study of the pilot

schemes the Legal Services Commission, if it is then in

existence, should be in a position to make longer-term

recommendations with respect to Duty Solicitors.

8

Part 3 : LEGAL SERVICES COMMISSION

(a) Submissions and Proposals

3.1. The Committee has received a number of submissions,

particularly from professional bodies, concerning the

desirability of establishing an independent body responsible

for the provision of legal services on a national basis.

These submissions particularly emphasise the need for

co-ordination of the large number of existing services which

are currently provided.

3.2 In its submission to the Committee, the law Institute

of Victoria expressed the view that a consultative advisory

body or advisory commission should be established. It should

have -

"the necessary standing and authority to ensure that all legal aid activities are co-ordinated and to act as an effective vehicle for '

communication with various governments. Such a body should not control existing legal aid services but it should be mandatory for the body’s views to be sought before any further activity is undertaken. Its members should

comprise representatives from the Australian and State Governments, the respective law bodies, the voluntary services and interested laymen."

The Institute submitted that the Australian Legal Aid Office -"should be established as a statutory corporation as soon as possible. Further, a corporation independent of government would overcome the

philosophical and ethical problems inherent in a government department administering a legal aid scheme."

3.3 The Law Council of Australia in discussions with

the Australian Attorney-General and members of the Committee

and in a submission to the Attorney-General of 2 December

1974 has recommended the establishment of an independent

Commission to be called the Australian Legal Aid Commission,

9

Legal Services Commission - continued

half of the members of which would be nominees of the Law

Council. The functions of the Commission would be -. to oversee and regulate the legal aid operations

of the Australian Legal Aid Office vis-a-vis

the private profession;

. to conduct programs of research and related

matters and to ascertain the need for legal

aid services; and

. to allocate Australian Government funds in aid

of existing legal aid agencies.

3.4 In his Discussion Paper, 'Legal Aid in Australia'.

Professor R. Sackville advocates the establishment of a

Legal Services Commission with extensive powers, whose

members would be drawn from all sections of the community

interested in the solution of the problems of the poor.

The proposed body would have three major roles -. to establish, administer and finance a major

new legal aid system of local legal centres

and other schemes and services throughout

Australia;

. to conduct research and to plan and co-ordinate

the overall development of legal aid in Australia;

and

. to make grants to schemes or agencies that seek

assistance.

The proposed Commission would be a vehicle for social change

in the field of poverty and the legal aid system would have

functions beyond those of traditional legal aid, extending

to law reform, legal education, use of non-lawyers and

community involvement. These would be a network of local

legal centres, with staff employed by the Commission, that

would handle both Federal and State legal aid, the latter

function being funded by the States pursuant to tied grants

from the Australian Government.

10

Legal Services Commission - continued

3.5 In the United Kingdom a proposal has been made by

the legal Action Group for the establishment of a Legal

Services Commission that would be responsible for all

publicly financed legal aid whether provided by the private

profession or by salaried solicitors in centres or elsewhere.

The proposed Commission would consist of 12 or 15 Commissioners,

the majority of whom would be laymen. It would take over

the running of existing legal aid schemes and prepare for

the Lord Chancellor's approval, schemes for any additional

services it considered necessary such as funds for law

centres, a national Duty Solicitor scheme and a scheme for

assistance to appellants at tribunals. It appears that the

Lord Chancellor has rejected the proposal. (New Law Journal

Nov. 7, 1974, p. 1033)

3.6 In the United States of America the Legal Services

Corporation Act of 1974 provides for the establishment of a

Legal Services Corporation, the primary functions of which

are to conduct research and related activities and to provide

financial assistance to qualified programs and to make grants

to individuals, organisations and to State and Local

Governments for the provision of legal assistance to persons

financially unable to afford assistance. The Corporation

is to have an 11 member Board of Directors appointed by the

President and confirmed by the Senate, a majority of whom

must be 'members of the Bar of the highest Court of any

State.1 Corporation funds could not be used to lobby for

or against legislation or for cases involving criminal

charges, political activities, school integration, Selective

Service laws or abortions. The legislation removed legal

services functions from the Office of Economic Opportunity.

(b) The Need

3.7 The urgency of the need to co-ordinate existing

services is evident when one considers the number and variety

of bodies operating at federal, state and local level to

Legal Services Commission - continued

provide legal aid and assistance to persons in need. There

is a combination of government sponsored schemes, schemes

conducted by the private profession, voluntary schemes

promoted by concerned groups and individuals and assistance

provided by organisations such as Trade Unions as part of

"their service to their members. Each of these schemes makes

its own policy decisions as to area and operation and type

of service provided, although of course some consultation

and even official liaison occurs. The Committee believes

that existing schemes should be encouraged in every way

possible and that in many ways a proliferation of agencies

is not undesirable as it increases the network of services

available to people requiring assistance. However, the

Committee considers that there is a need for an independent

body to have regard to the overall picture of the provision

of legal aid to prevent' overlapping of functions in different

areas and to make the best possible use of government funds

applied to legal aid.

3.8 This need is re-enforced by the developments which

have taken place in the year since our first report. Without

attempting to give a detailed analysis of these developments,

it can be said that the year has proved to be a year of

ferment and development in the whole field of legal aid. The

opening of a substantial number of Australian Legal Aid Offices

throughout Australia alone has introduced a new concept in the

field of legal aid. In New South Wales, the year has seen

the appointment of a Commissioner for Legal Aid Services

pursuant to the Legal Aid (Miscellaneous Provisions) Act, 1974,

which effected some important changes in the organisation of

legal aid in that State. Expansion of legal aid services

provided by both the public sector (through the Public Solicitor

and Public Defender) and the profession are planned in New

South Wales. Victoria, South Australia, Queensland, Western

Australia, and Tasmania, which already have highly developed

schemes sponsored by the professional bodies, have extended

12

Legal Services Commission - continued

their activities in a number of fields and have plans for

further extensions of services. The Committee is firmly

of the view that, while there can be no question of direction

by a permanent body to the organisations providing these

services, nevertheless there is a compelling need for a

permanent body to keep abreast of the changing scene and to

assist and advise in the implementation of these developments.

3*9 This conclusion is further reinforced by the obvious

need for continued government finance to ensure that legal

aid and assistance of acceptable quality is available

throughout Australia. The Committee sees no answer to this

need other than the provision of substantial funds by the

Australian Government both to a federal salaried service and

to other legal aid bodies. If such funds are to be made

available they must be disbursed in a manner that takes

account of the most efficient means of providing the required

legal services to the community. This in turn requires the

establishment of a body to evaluate proposals for the

expansion of legal aid facilities and to make recommendations

as to the allocation of moneys to legal aid schemes.

3.10 The Committee therefore accepts that there is a

need for a permanent independent body to plan and co-ordinate

the overall development of legal aid In Australia and to

make recommendations with respect to the allocation of

Australian Government funds to legal aid schemes. This body

should be known as the Legal Services Commission.

(c) Composition of the Commission

3.11 The composition of the Commission is an important

question. The Committee had before it a number of views on

this matter. Broadly they fell into two categories, one

stressing the desirability of a broadly based Commission not

confined to persons and bodies concerned with the provision

of legal aid, and the other stressing the need for expertise

in the field of legal aid and legal services generally.

13

Legal Services Commission - continued

3.12 The first question, then, is whether the Commission

should include a preponderance of practising lawyers or be

comprised of members chosen from a variety of sources. The

Committee accepts the view that there are many groups in the

community with an interest in legal aid that deserve

representation on the Commission. Although a significant

proportion of legal aid will continue to be provided by

private practitioners, a majority of the Committee considers

that there is no need for private practitioners to constitute

a majority on the Commission. It must be remembered that the

primary goal of legal aid services is to assist people in the

community who have been previously excluded from the benefits

of legal advice and representation. The range of individuals

and organisations able to contribute to this goal is very

broad. These individuals and organisations deserve adequate

representation.

3.13 Professor Sackville's Discussion Paper (para. 6.21)

proposes the establishment of a Legal Services Commission

constituted as follows -The Attorney-General or his nominee (to be an ex officio

member of the Commission). Other members should be

appointed in their personal capacity and should be chosen

from - ‘

(a) the legal profession and existing legal aid schemes;

(b) consumers of legal services;

(c) other groups or organisations with experience or

interest in areas relevant to legal aid and the

delivery of legal services;

(d) other persons with special knowledge or skills.

Lawyers in private practice or employed by Law Society

schemes should not constitute a majority on the

Commission. Non-lawyers should constitute at least

one quarter of the membership of the Commission.

14

Legal Services Commission -> continued

3.14 The Committee endorses Professor Sackville's

guidelines concerning the groups from which members should

he chosen and accepts that the Commission, once constituted,

should adhere to those guidelines. It does not think it

necessary to prescribe the proportion of members who may

be private legal practitioners or non-lawyers but, as noted

above, it considers there is no need for private practitioners

to constitute a majority.

3.15 In the United Kingdom the Lord Chancellor's Advisory Committee is drawn from various areas of community

service. Its present members are -The Lord Hamilton of Dalzell. M.C. (Chairman) was formerly

a member of the Council on Tribunals.

Mr Drain is General Secretary of the National and Local

Government Officers' Association and a Member of the

General Council of the Trades Union Congress. He is a

barrister and a magistrate.

Mr Grindrod is a Director of Social Services for the London

Borough of Croydon.

Sir George Haynes, C.B.E. was a member of the Rushcliffe

Committee on Legal Aid and Advice, 1944; former Director

of the National Council of Social Services.

Lady Howe has been a Juvenile Court Magistrate since 1964;

wife of the Conservative Shadow Minister for Health and

Social Security.

Lady Marre is Chairman of the London Council of Social

Service and of the Volunteer Centre and has had long

experience of Citizens' Advice Bureau work.

Professor O.R. McGregor is Head of the Department of

Sociology, Bedford College; he was a member of the Finer

Committee on one-parent families and of the Royal Committee

on the Press.

Master Matthews T.D. is a Master of the Supreme Court (Taxing

Office); formerly a Legal Aid Area Secretary and thereafter

15

Legal Services Commission - continued

Secretary, Legal Aid, The Law Society.

Mr R.EoK. Thesiger, O.B.E. is a barrister and Citizens'

Advice Bureau Worker; formerly a member of the Lord

Chancellor's Office, concerned with legal aid.

Mr Peter Urquhart is a practising solicitor and is Chairman

of the Legal Services Group of the National Association

of Citizens' Advice Bureaux. He has also been Vice-Chairman

of the Legal Action Group.

Mr L.B, Waddilove, O.B.E. is a Director of the Joseph

Rowntree Memorial Trust.

His Honour Judge Wingate. Q.C. is a circuit Judge, formerly

a practising barrister.

3.16 A Commission constituted as suggested by Professor

Sackville1s Discussion Paper would be a new approach in

relation to legal aid in Australia. Hitherto, legal aid

services in Australia have been run exclusively by members of

the legal profession or by Government legal departments. The

experience of the operation of the Lord Chancellor's Committee

suggests that a broad based Commission as suggested by the

Discussion Paper has merit.

3.17 The majority of the Committee suggests that at the

outset the Commission should consist of the fulltime Chairman

together with eleven part-time Commissioners chosen from the

following -(a) One from a law Society Legal Aid Scheme;

One from a State salaried legal aid service;

One from the Australian Legal Aid Office;

Two lawyers from private practice;

(b) Two from consumers of legal aid services;

(c) Two from organisations with experience in the

provision of aid to poor persons, such as the

Australian Council of Social Service and

organisations representing Citizens Advice

Bureaux;

(d) Two other persons: one with expertise in law

16

legal Services Commission - continued

reform and one an economist or statistician.

3.18 A minority of the Committee saw advantages in

having a greater representation drawn from the practising

legal profession than is proposed in the above Scheme.

3.19 The Committee recommends that the Chairman of the

Commission should be appointed for a term of seven years

and that the salary provided should he at a high level,

commensurate with the importance of the task. Part-time

Commissioners should be appointed for a term of three years.

Since it is desirable that continuity be maintained on the

Commission, approximately one-third of all Commissioners

should retire each year. Thus four of the initial

Commissioners should he appointed for a period of one year,

four for a period of two years and three for a period of

three years. Because of the rapid changes likely to take

place in legal aid and the desirability of the infusion of

new ideas into the Commission, the suggested term of three

years for part-time Commissioners is considered desirable.

Commissioners should, however, be eligible for reappointment.

All members of the Commission when acting as Commissioners

should do so not as representatives of organisations but in

their individual capacities.

It is implicit in these recommendations that the

Commission should have staff adequate to perform the functions

entrusted to it. The Committee does not think it necessary

to elaborate further on this matter.

(d) Functions of the Commission

3.20 There has been some disagreement within the

Committee as to the precise range of functions that should

be performed by the Legal Services Commission. However, the

Committee is agreed that, in planning and co-ordinating the

development of legal aid within Australia, the Commission

should have the following powers and duties -

17

legal Services Commission - continued

(i) To assess the extent and nature of unmet

legal need within various areas and to

determine the most effective methods of

providing services likely to satisfy it.

(ii) To assess the value and effectiveness of legal

aid schemes already in existence which seek

government finance, and of proposals from groups,

organisations or individuals within the community

seeking funds to establish legal aid services.

To co-ordinate the operation of such publicly-

funded schemes with the overall development of

other legal aid services.

(iii) To collect and publish comprehensive statistics

on the operation of legal aid schemes under its

control and of other agencies offering legal advice

and assistance.

(iv) To undertake research into all aspects of legal

aid, the provision of legal services, and

aspects of law affecting disadvantaged groups

and individuals. To this end it should establish

a research unit which would itself undertake research

activities and would work in co-operation with

and fund projects within universities and other

academic, educational, research, or professional

institutions.

(v) To make submissions to Governments and other

bodies on aspects of law affecting disadvantaged

groups and individuals and on the effective provision

of high quality legal services.

(vi) To formulate policies under which students within

university law faculties and other educational

Institutions may be involved in legal aid services.

The Commission should co-operate with educational

institutions in providing courses and instruction to

students in matters relevant to legal aid.

18

Legal Services Commission - continued

(vii) To explore, in conjunction with suitable educational

institutions, means of training paraprofessional

staff for work in legal aid and, if appropriate, to

initiate training programs for such staff.

(viii) To draw up guidelines outlining ways in which

non-professionals or professionals in fields other

than law should be utilised within legal centres,

and to assist solicitors in delegating their routine

functions to paraprofessional staff.

(ix) To commission, produce, and publish material

which is likely to increase the efficiency and

knowledge of professionals and non-professionals

operating in the field of legal aid or associated

services.

(x) To conduct, in conjunction with other appropriate

bodies, an educational campaign directed at

increasing the legal awareness of people within .

the community, and at informing them of their rights

and of how they may best be protected. Such a

campaign requires a range of techniques, including

the dissemination of material to schools and other

institutions; the provision of speakers able to inform

a wide variety of groups and organisations about law,

legal rights, and legal services; the publication

of books and pamphlets; and the supply of information

to the media.

(xi) To conduct an advertising campaign, in association

with the Commission's educational activities,

designed to inform people of the existence of local

legal centres and other legal aid agencies, the work

which they undertake, and the advantages of consulting

them.

These are some of the functions of the Commission as

contemplated by Professor R. Sackville, Commissioner for

Law and Poverty, in his Discussion Paper entitled

"Legal Aid in Australia”.

19

Legal Services Commission - continued

3.21 The disagreement within the Committee concerned

the question of whether the Legal Services Commission, in

addition to acting as a planning and co-ordinating body,

should actually become involved in the provision of legal

aid. One view was that the Commission should provide legal

aid services itself, principally through the existing federal

salaried service, the Australian Legal Aid Office. On this

approach the Commission would formulate policy on legal aid

and be directly responsible for what is now the Australian

Legal Aid Office, which would remain the principal means of

providing legal assistance at local level. The other view

was that the Commission's role, in relation to the federal

salaried service, should be essentially advisory and that

the Australian Legal Aid Office, or its equivalent, would be

administered by a separate statutory body modelled on the

lines of legal aid bodies established under State legislation.

3.22 Those members of the Committee who favoured the

Commission's participating in the provision of legal aid

made the following points -(a) The responsibility for formulating policy on legal

aid should be that of a broadly based Commission

representative of a number of individuals and

organisations with an interest in legal aid. If

the Commission's role in relation to the federal

salaried service were advisory only, the effective

formulation of policy by the Commission might be

frustrated by the Commission's inability to have

its proposals carried into practice. One way this

might occur is through opposition from the salaried

service, whose officers might be out of sympathy

with the intitiatives proposed by the Commission.

However, frustration might also be caused simply by

avoidable administrative delays in implementing

proposals formulated by persons other than those

responsible for their ultimate implementation.

20

Legal Services Commission - continued

The effect might be to prevent realisation of the

goals of law reform and community education that are

an important part of the philosophy of legal aid.

(b) The problems of co-ordination of legal aid services

would be increased if the federal salaried service

enjoyed a separate statutory existence. Implementation

of the Commission's policy guidelines would become

the subject of negotiation with the salaried service

and, for the purpose of planning, it might be

difficult to predict the changes that would actually

take place over a given period. The collection of

statistical information and the assessment of legal

aid programs hy the Commission would also be

facilitated if the Commission were directly responsible

for the conduct of the federal salaried service.

(c) A salaried service which came within the umbrella

of an independent statutory Commission would be

more readily seen as independent of the Australian

Government than one which was seen simply as a

statutory incorporation of the existing Australian

Legal Aid Office. Given the origins of the

Australian legal Aid Office as a branch within the

Attorney-General1s Department, it would be difficult

for the Office, even as a separate incorporated

body, to shake off the image of an organisation under

the close influence, if not control, of the

Australian Government. Such an image would be

harmful if, for example, the federal salaried service

is to aid people wishing to challenge the actions of

government.

(d) Insofar as there is a risk of an apparent conflict of

interest in the Commission recommending the provision

of funds both for its "own" service and for other

legal aid services, the position will not be improved

by limiting the Commission to an advisory role in

21

Legal Services Commission - continued

relation to the federal salaried service. The

reality is that Australian Government funds for legal

aid will be disbursed on the recommendation of a

federal body, whether or not that body has executive

as well as advisory functions. There will therefore

always be criticism from State or Law Society schemes

on the ground that they have received less favourable

treatment than the federal service whose needs must

be met entirely out of Australian Government funds.

This criticism is not likely to be muted merely

because the federal salaried service is established

separately from the Commission, especially if the

service adopts readily the policies laid down by the

Commission.

3.23 Those members of the Committee who favour the

Commission as a purely advisory body and a separate statutory

Australian Government legal aid body consider that -(a) The objection in principle to a single Commission

is that, there would be both a real and apparent

conflict of interest in a body 'wearing two hats'.

On one hand, it would be advising Government about

desirable roles for the various legal aid services

and about federal grants that should be made. On

the other hand, it would be running its own extensive

service and would tend to favour or appear to favour

that service. There should therefore be a separation

of the two functions.

(b) The role of the Commission as advisor, if requested,

to State Governments and State law bodies and State

salaried services is likely to be imperilled if it is

seen as a body conducting legal services in competition

with them. An advisory and co-ordinating body would

have a much better prospect of acceptance in a federal

system.

22

Legal Services Commission - continued

(c) An advising and recommending body would leave a

role for Government both Federal and State in relation

to policies and priorities. It is unrealistic to

expect any Government to hand over legal aid policy

to a group of 'experts' however happily chosen.

(d) The recommendation in Professor Sackville's Discussion

Paper that the Commission should have a function of

providing legal aid in State law matters generally is

likely to be unacceptable to the States, particularly

if it is sought to achieve this object by way of 1 tied'

federal grants that required the States to authorise

the Commission to perform that function and to provide

it with money for that purpose. The prospect of

reciprocal legislation would seem to be remote. The

grant of the wide powers and functions proposed for

the Commission in the Discussion Paper has been

criticised by the New South Wales Commissioner for

Legal Aid Services in a letter of 28 November

1974 (Appendix 'C ') because 'the control and

administration of legal aid is a matter for the

States and the private legal profession'.

(e) However that may be, the proposed policy, if

accepted, of providing legal aid in State law

matters could equally be achieved by a grant of

State funds to the Australian Legal Aid Office.

(e) Co-ordination with Law Reform Bodies

3.24 Whichever view is taken of the functions of the

Legal Services Commission, the Committee agrees that legal

aid should not be seen apart from other legal institutions

designed to encourage and implement change in the community.

We have indicated our agreement with the view that the role of

legal aid ought to be wider than the mere provision of

services to individual clients who are experiencing difficulties

of a legal nature. The system of legal aid should be an

23

Legal Services Commission - continued

important element in the continuing process of reform of

legislation and administrative practices which is necessary

if the goal of equality before the law is to be realised. We

have referred to the reforms that can be achieved by means of

test litigation and by the formulation and presentation of

draft legislation and other proposals for change. Legal aid

schemes, supported by appropriate research facilities, have a

potential for achieving reforms in the interests of disadvantaged

people who are otherwise powerless to influence the factors

inflicting most hardship on them. They also have a special

role in identifying areas of need where change is required

and in reflecting the aspirations of people who have previously

been excluded from the opportunity of having their grievances

aired. There are a number of institutions, existing or

contemplated, which are concerned with questions of law reform.

These include general bodies such as the National Law Reform

Commission and more specialised agencies such as the proposed

Family Law Advisory Council. It is vital that these agencies

for change should not work in isolation from the initiatives

created by a system of legal aid such as that proposed by us.

Indeed it is difficult to avoid the conclusion that there

must be a close and continuing relationship between a Legal

Services Commission, concerned to stimulate change in the

interests of disadvantaged people and the bodies responsible

for proposing reforms of the substantive law. As defects in

substantive and procedural law are revealed by test cases and

other legal aid strategies, a mechanism should be available

to ensure that remedial action, if warranted, is taken without

delay. It would be unfortunate if reasoned and carefully

researched suggestions for needed reforms, prepared by lawyers

involved in legal aid work, were to be ignored because they did

not emanate from bodies specifically charged with the task of

law reform. It would be equally unfortunate if the facilities

of an agency such as the Legal Services Commission and those

of a law reform body were used independently to investigate the

same issues. Similarly, the data collected by the research

24

Legal Services Commission - continued

section of the Legal Services Commission will be essential

to the work of any body examining legal issues of social

significance. The systematic collection of data relating

to court proceedings and the work of legal aid agencies in

the manner pioneered by the New South Wales Bureau of Crime

Statistics and Research is indispensable to an informed

approach to law reform.

5.25 The Committee therefore suggests that the Legal

Services Commission should be regarded as one component in

a dynamic and co-ordinated approach to the problem of law

reform. This will require the maintenance of close links

between the Legal Services Commission and law reform bodies

at both State and Federal level. It is beyond the terms of

reference of this Committee to make precise recommendations

as to the means by which these links should be established,

and whether a single body should have overall responsibility

for co-ordinating law reform proposals. However, the issue

is one that bears further examination.

25

Part 4 : FUNDS FOR LEGAL· AID

4.1 The Committee has had insufficient material before

it to consider this matter other·than on a broad basis. The

changing nature of legal aid services, as noted earlier, has

financial implications which will not be able to be assessed

for some time. For example, the progressive entry of the

Australian legal Aid Office into legal aid in matrimonial

causes should, in the long term, enable legal aid bodies to

use funds previously allocated to this field in other fields.

Again, in theory, it might be expected that the operation of

the Australian legal Aid Office might reduce the pressures

on existing schemes. However, this can only be assessed

progressively in the light of experience. It would appear

however, that the unfilled need is so great that a considerable

amount of further Australian Government funds will be required

before an acceptable level of legal aid is available on a

national basis.

4.2 The Committee has noted the provision of funds by

the Australian Government in the last two years to supplement

existing schemes. It is concerned with the level of legal aid

services in the short term and that there should not be any

deterioration in the services presently available. The

Committee recommends that a continuing surveillance be made

to ensure that this level is maintained. In the long term the

Committee sees the question of the provision of funds, the

allocation of priorities and areas of legal aid to be matters

for the legal Services Commission. It again emphasises that

this role involves research and collection of statistical

information on a continuing basis.

26

APPENDIX A

(See Report, Paragraph 1.6)

SUBMISSIONS BY LAW COUNCIL OP AUSTRALIA AMD

LAW INSTITUTE OF VICTORIA

In a letter to the Attorney-General of 2 December

1974 the Law Council of Australia made the following

recommendations on an Australian Legal Aid Commission -

1 There should be an independent commission established

by statute to be called the Australian Legal Aid

Commission.

2 It should be constituted as follows -

A Chairman who shall be the Australian

Attorney-General or his nominee;

Five nominees of the Law Council of

Australia;

Three nominees of the Australian Government;

One nominee of the Australian Council of

Social Service

3 The functions of the Commission, to be defined in

the statute, should include -(a) definition of the scope of the legal aid

services to be provided by the A.L.A.O.

and the definition of circumstances in

which legal aid should be provided to

applicants for legal aid by the A.L.A.O.

salaried service or by other Australian

Government agencies or by the private

profession;

(b) provision of legal aid services to

applicants to the A.L.A.O. by the

A.L.A.O. salaried service and by the

private profession;

27

Appendix A - continued

(c) ascertaining of need for legal aid

services;

(d) the allocation of Australian Government

funds in aid of other existing agencies

including those established under State

legislation;

(e) formulation of guidelines on -(i) legal merits of application;

(ii) means test and contribution requirements;

(iii) allocation of work for applicants

’ to the A.L.A.O. as between the A.L.A.O.

salaried service, the private

profession and any other legal aid

agencies;

(iv) the fees to be paid to the private

profession;

(f) the conduct of programs for research,

staff training, public education and

advertising

4 State and Territorial Committees of the Commission

should be formed the composition of which will be -Two nominees of the local legal professional

associations and two nominees of the Australian

Government - or

to be constituted in such other manner as may be

agreed upon between the Commission and the legal

professional associations in each State or Territory

The role of these Committees should include -(a) supervise the implementation of the

guidelines;

(b) supervise the allocation of work to the

private profession;

(c) when any basis is agreed between the

Committee and a State or Territory Law

28

Appendix A - continued

Association, determine fees payable in

accordance with that basis;

(d) supervise the method of payment of fees;

(e) entertain appeals from assessments of

contribution

5 A panel of two (the senior A.l.A.O. Officer and a

nominee of the State or Territory Law Association)

should assess contribution in each area served by

an Australian legal Aid Office

6 Australian Legal Aid Commission funds should be

derived from -(a) Australian Government grant;

(b) contributions;

(c) costs recovered;

and the Commission should have sole control of its

budget, its funds and the employment of its staff■

7 The Commission should report annually to the

Australian Parliament upon the execution of its

functions

In its submission to the Committee the Law

Institute of Victoria made the following statement on an

Australian Legal Aid Advisory Commission -1 The Law Institute submits that a proper and

comprehensive legal aid scheme requires, among other

things, the proper management and utilization of all

legal resources available for that purpose. In

addition the considerable experience and knowledge

accumulated by the legal profession in providing the

established legal aid schemes should not be ignored.

It therefore is submitted that some means be devised

to assess needs and the resources available to satisfy

them. This could be achieved by the establishment of

a consultative advisory body having the necessary

29

Appendix A - continued

standing and authority to ensure that all legal aid

activities are co-ordinated and to act as an

effective vehicle for communication with various

governments. Such a body should not control

existing legal aid services but it should be

mandatory for the body's views to be sought before

any further activity is undertaken. Its members

should comprise representatives from the Australian

and State Governments, the respective law bodies,

the voluntary services and interested laymen.

The Legal Aid Review Committee recommended the

forming of an Australian Legal Advisory Commission.

The proposed function and duties of such a commission

were not stated. If, however, its functions were

similar to those proposed for the consultative body

the Institute would support its establishment.1

1 Co-ordination is important also for another reason.

The establishment of voluntary services and the

Australian Legal Aid Office in addition to the

legal aid scheme already operating could very well

cause confusion among the public as to the proper

place to seek aid. Such confusion would not only

be self-defeating but it would add unnecessary

burdens to those least able to carry them. It would

be most undesirable if a citizen, believing that

aid was available, was required to attend three or

perhaps even four different centres to seek that

aid. The aim should be to provide aid at the first

instance. Thus a clear delineation of services

provided by each scheme or centre is required and

must be made known to the public. This information

could very well be performed by the consultative

body or advisory commission.1

30

APPENDIX B

(See Report, Paragraph 2.5)

DUTY SOLICITOR SCHEME - SOUTH AUSTRALIA

Duty Solicitor services are conducted in Adelaide

and the metropolitan area of Adelaide by the private practising

profession and by the Australian Legal Aid Office.

The private profession conducts the services at the

Adelaide Magistrates Court, the Port Adelaide Magistrates

Court and the Christies Beach Magistrates Court. The

Australian Legal Aid Office conducts the service at the

Elizabeth Magistrates Court.

In Adelaide and the metropolitan area there are four

main courts of summary jurisdiction adjacent to major police

lock up centres, namely, Adelaide, Port Adelaide, Christies

Beach and Elizabeth. There are many other suburban courts

but these, as yet, do not have the volume of work of those

abovementioned. Most of the civil work is done in the same

areas.

Most of the work in the courts of summary jurisdiction

is done by magistrates who are legally qualified. Some work

is done by two Justices of the Peace sitting together or by

a Special Justice of the Peace who sits on his own. Special

Justices of the Peace are former clerks of courts with

considerable experience in the running of courts of summary

jurisdiction. In the main they are used in the Adelaide

Magistrates Court for the hearing of applications for remand,

adjournment and bail.

The magistrates all have knowledge of the legal aid

scheme conducted by the Law Society of South Australia and

many of them had taken assignments when in practice. That

scheme has been in operation since 1933 and has always given

assistance in summary court matters.

31

Appendix B - continued

- ADELAIDE

The major lock up centre is the Adelaide City

Watchhouse which is next door to the Adelaide Magistrates

Court. Bach day there are usually ten courts sitting at the

Adelaide Magistrates Court except on Saturday when one court

sits.

The practice at that court is to bring all persons

arrested since the last sitting before a court presided over

by a Special Justice of the Peace to deal with applications

for adjournment, remand and bail. It is the practice not to

deal with arrested persons upon their first appearance unless

they insist.

Due to their knowledge of the Legal Aid Scheme, in

most matters of difficulty which are so identified by the

Special Justice, the persons charged are urged to seek legal

advice either privately or through the Legal Aid Scheme.

Duty Solicitor's role in this court has been limited

to applications for adjournment or remand and bail, advice

and occasional pleas of guilty in urgent or unusual circumstances.

All persons requiring legal assistance are referred to the

private profession or, if they qualify for legal aid, to the

Legal Aid Scheme conducted by the law Society of South Australia.

The Duty Solicitor acts for any person requesting his

services regardless of type of matter or means of the person

charged. He also assists persons charged on summons.

The Duty Solicitor services do not, at present, extend

to the civil jurisdiction.

The service commenced in Adelaide on 12 June 1974

and has been operating ever since. Initially, two solicitors,

an articled law clerk and an assistant from the staff of the

Law Society of South Australia were in attendance each day.

However, it became apparent that one solicitor was sufficient

and the scheme has since been conducted by a solicitor, articled

32

Appendix B - continued

clerk and the assistant.

An average of about seven persons are assisted

each day, three of whom have been held in custody overnight

after arrest. The assistant from the Law Society is on the

staff of that body and acts as receptionist at that court

and the initial interview. She completes applications for

legal assistance at the court to save the applicant from having

to attend the Law Society offices.

At present there are 39 solicitors and 42 articled

clerks on the roster.

The rostered solicitor and articled clerk attend

the court with the assistant from 9.00 a.m. until work has

been completed, usually between 12 noon and 1.00 p.m. The

assistant keeps appropriate records and statistics and attends

to the roster. Most of her working day is occupied in these

duties.

This service has been effective and is conducted

entirely on a voluntary basis by the profession and the

articled clerks without any remuneration. No charge is made

to assisted persons. The service has been conducted as a

pilot scheme to assess with practical experience the need,

cost and effectiveness of such a service.

PORT ADELAIDE

The magistrates court at Port Adelaide is adjacent

to the cells maintained at the Port Adelaide Police Station,

and sits each day.

The Duty Solicitor service at this court is conducted

by the private legal profession in the area, being lawyers

from two firms of solicitors.

The work done is of the same nature as the Adelaide

service.

33

Appendix B - continued

One solicitor attends court each day from approximately

9.00 a.m. to 11.30 a.m. and is available at other times if

called to the court.

An average of three persons are assisted each day at

that court by appearing for them or advising them in some

detail. Others are assisted with less detailed advice.

No supporting staff is employed at Port Adelaide and

consequently, no statistical information has been kept.

This service has also been conducted free of charge

to the assisted person and on a voluntary basis by the

profession without remuneration.

Referrals are made to the private profession or the

legal Aid Scheme.

CHRISTIES BEACH

This court is also close by a major police lock up

centre and sits each day.

The Duty Solicitor service is conducted by the

private legal profession. Four firms of solicitors have

offices in the area of Christies Beach and conduct the service

on a roster basis organised by them.

One solicitor attends each day usually from 9·30 a.m.

to 11.00 a.m. There is no supporting staff and no statistical

information has been kept.

An average of about 3 persons are assisted each day

and the extent of the service is as in Adelaide and Port

Adelaide.

This service is also conducted free of charge and

without remuneration to those lawyers taking part.

Referrals are also made to the private profession or

the Legal Aid Scheme.

34

Appendix B - continued

ELIZABETH

The Duty Solicitor scheme at the Elizabeth Magistrates

Court is conducted by the Australian legal Aid Office. The

court is also adjacent to a major lock up centre.

The scheme commenced on 12 June 1974 and is conducted

by the regional office of the Australian Legal Aid Office at

Elizabeth. This office is staffed by two lawyers and support­

ing staff.

One of the lawyers attends the court each day.

Two and sometimes three courts sit daily. Once a

week the Family Court visits Elizabeth in its Juvenile Court

Jurisdiction.

An average of 2 persons are assisted each day.

The assistance is advice, applications for adjournment

on remand, bail and referral, pleas of guilty and referral to

the Australian Legal Aid Office for assistance on to the Legal

Aid Scheme conducted by the Law Society of South Australia.

This service is conducted free of charge and is

performed by officers of the Australian Legal Aid Office as

part of their duties.

THE FAMILY COURT

The South Australian Family Court sits at Adelaide

and exercises the jurisdiction of the Juvenile Court and

family law matters outside the Matrimonial Causes Act 1959-1966

and the family law jurisdiction of the Supreme Court. It

sits daily in Adelaide, Port Adelaide, Elizabeth and Christies

Beach as needed and in certain country centres.

The Australian Legal Aid Office conducts a Duty

Solicitor service at sittings of the court in Adelaide and

at Elizabeth.

35

Appendix B - continued

OTHER SUBURBAN COURTS

In addition to the courts maintained above, courts

of summary jurisdiction sit at Glenelg, Norwood, Holden Hill,

Prospect, Unley and Darlington, all of which are in the

metropolitan area of Adelaide. All of these courts are

adjacent to police stations with some lock up facilities but

which are not used as extensively as the abovementioned lock

up centres.

These courts do not sit daily.

They have certain general court days each month and

the magistrate of each court hears contested cases on other

days as well as attending to his country circuit. Courts

comprised of Justices of the Peace also sit in these courts

usually to hear minor matters.

It would seem that a Duty Solicitor service would

only be necessary at these suburban courts on general court

days which, the Committee is informed average two sittings each

day overall.

The jurisdiction exercised by these courts is the

same as the courts at Adelaide, Port Adelaide, Christies

Beach and Elizabeth.

It is estimated that one practitioner would be

required at each court for about four hours including

travelling time should a Duty Solicitor service be extended

to cover these courts.

COUNTRY MAGISTRATES COURTS

Magistrates visit the major country towns in South

Australia on regular circuits usually each month but depending

upon needs.

Most of the towns have either resident private

practising lawyers or such lawyers visit the towns on court

36

Appendix E - continued

days. Consequently, private practising lawyers are almost

invariably present at court in all major country towns when

the visiting magistrate is present.

At present there is no Duty Solicitor service in

operation in the country areas of South Australia but the

private practising lawyers resident in Mount Gambler in the

south east of South Australia propose to shortly commence

such a service.

Such a service will receive the close attention

of the Committee as it will provide a most useful guide as to

what is needed in country towns in South Australia, and the

likely cost.

It seems that there should not be any difficulty

in manpower in providing a Duty Solicitor service in country

towns where such towns have resident or visiting solicitors.

Payment can be made to them for the time actually'

spent on providing the Duty Solicitor service. It would

seem that the organisation of such schemes would have to be

done by the local private practising profession.

As to cost, the Law Society of South Australia has

attempted to estimate the cost of providing a service in

major country towns but it has not had the benefit of any

pilot scheme in the country for guidance.

These estimates are produced in this report for

what they are worth.

There is considerable difficulty in formulating

an adequate Duty Solicitor service in country towns where

there are no resident private practising lawyers. The day

to day business is conducted by courts comprised of local

Justices of the Peace. These courts deal with matters of

bail, adjournment on remand and pleas of guilty. Often

there is no lawyer available for the person charged. Usually

contested matters are held over for the visiting magistrate.

37

Appendix B - continued

This problem must be kept under review to assess

what type of service is required, who should provide it and the

likely cost.

The estimates of the law Society of South Australia

based upon the experience gained from its own pilot schemes

give a useful guide to the cost of Duty Solicitor services

in that State if conducted by the private profession. These

estimates have to be made on the basis of some kind of

remuneration to the private profession and articled clerks.

The amount of $25.00 per hour was chosen, not as the proper

figure, but because some amount had to be chosen. That sum

is less than the hourly rate allowed upon taxation of costs

between solicitor and client by the Supreme Court of South

Australia.

On that basis, and allowing $5.00 per hour for an

articled clerk the estimates are as follows -

Adelaide Magistrates Court

1 lawyer working 4 hours, 6 days each

week at $25.00 per hour $600.00

1 articled clerk working 4 hours, 6 days

each week at $5.00 per hour $72.00

1 assistant at present salary $87.00

$759.00 per week

In addition it is anticipated that there would be

some overhead expenses for stationery, telephone, leave and

the like.

Port Adelaide

1 lawyer working 2·$- hours, 5 days each

week at $25.00 per hour $512.50 per week

58

Appendix B - continued

Christies Beach

1 lawyer working 2 hours, 5 days each

week at $25.00 per hour $250.00 per week

The total cost of these existing services is

$1,521.50 per week in addition to certain overhead expenses

now being met by the law Society of South Australia.

It is submitted by the law Society of South

Australia that due to public holidays and other days when

courts do not sit, 50 weeks in each year is appropriate for

budget purposes.

On that basis, a yearly budget is $66,075.00

plus some allowance for overheads.

Other Suburban Courts

2 lawyers working 4 hours, 5 days

each week at $25.00 per hour $1,000.00 per week

Country Magistrates Courts

The estimates of the law Society of South Australia

are as follows -

Whyalla - 50 hours per month

$25.00 per hour

at

$750.00

Port Augusta - 30 hours per month

$25.00 per hour

3,"t

$750.00

Berri - 20 hours per month

$25.00 per hour

at

$500.00

Mount Gambier - 15 hours per month

$25.00 per hour

at

$375.00

Port Lincoln - 15 hours per month

$25.00 per hour

at

$375.00

$2,750.00 per month

59

Appendix B - continued

Other Country Courts ' $3,000.00 per annum

SUMMARY YEARLY

Adelaide Magistrates Court

$759.00 per week, say $37,950.00

Port Adelaide and Christies Beach

Courts $527.50 per week, say $28,625.00

Other Suburban Courts

$1,000.00 per week $50,000.00

Country Courts $2,750.00 per month

$3,000.00 per annum

$33,000.00

$3,000.00

TOTAL .. .. $152,575.00

In addition there must he some provision for

overheads and country travelling expenses.

40

APPENDIX C

(See Report, Paragraph 3.23)

LETTER FROM NEW SOUTH WALES COMMISSIONER

EOR LEGAL AID SERVICES TO EDITOR OE

'THE SYDNEY MORNING HERALD1 - 28 NOVEMBER 1974

The Editor

'The Sydney Morning Herald'

235 Jones Street

BROADWAY N.S.W. 2007 28 November, 1974

Dear Sir,

It may well be premature to comment publicly on

Professor Sackville's Discussion Paper on Legal Aid

(1Herald1 28 November, 1974). Indeed, the Professor has

paid me the courtesy of including me among those invited

to comment to him on the Paper before his final Report

is presented to the Commonwealth Government.

But the Paper is now public knowledge through

its release to the media, and I cannot run the risk of my

silence being taken as acceptance of many of its conclusions.

There are in particular two points which need to be made

immediately.

Firstly, the Paper is highly critical of existing

legal aid schemes, principally because they do not attempt to

cover some areas of need. I have some reservations as to

whether all the areas cited are a proper function of legal aid

administration - I particularly wonder about some of the

proposals regarding law reform - but that is not the point.

The point is that the limitations of the two major

schemes in New South Wales are forced on them by one factor

only, lack of funds. I am trying to extend the Public

Solicitor and Public Defender systems into new areas; the

41

Appendix C - continued

Law Society is doing its "best to set up a Duty Solicitor

scheme in all the Magistrates' Courts in the State; we are

both working on other projects as well. We are frustrated

by the simple fact that the State Treasury has no funds

available, and the Commonwealth is pouring taxpayers' money

into its own legal aid schemes rather than making realistic

grants for the extension of existing services.

I make no attack on the Australian legal Aid Office.

That office is unquestionably filling a gap in the system,

and I have had nothing but courtesy and co-operation from it.

But I do object to criticism of State and private-profession

services for not filling that gap - and other gaps - when the

funds to do so are withheld. ,

Secondly, the Paper recommends the establishment of

an independent Commission with the widest powers to control

legal aid; on that Commission the private legal profession is

not to have a majority. Wow legal aid is provided by lawyers;

the practice of private lawyers is regulated under State law

and there is no head of power in the Federal Constitution

allowing the Commonwealth Parliament any entry to the field.

On any reckoning, the control and administration of legal aid

is a matter for the States and the private legal profession.

What a fine disregard for difficulties of this kind

is shown by the Discussion Paper. We now have a Commission

of Inquiry, set up by the Commonwealth, about to recommend

to the Commonwealth the setting up of another Commission to

control and administer something that never was any business

of the Commonwealth. One cannot but be impressed.

Yours faithfully,

(signed)

E.J. O' Grady Commissioner

42 (R74-/2092)