Transcript

Legislative Council

GREENS MOTION: Legal Aid funding

March 29th, 2017

On the 29th of March, Mark moved a Greens motion calling on the state and federal governments to urgently increase funding for legal aid.


The Hon. M.C. PARNELL: I move:

That this council— 

1. Notes that the Law Council of Australia's biennial National Access to Justice and Pro Bono Conference was  held  in Adelaide on 23 and 24 March in conjunction with the Law Society of South Australia and the Australian Pro Bono Centre; 

2. Notes the Productivity Commission's 2014 Access to Justice Arrangements Inquir y  Report which called for a substantial increase in legal aid funding which it noted would help prevent legal problems from escalating and reduce cost to the justice system and to the community;  

3. Notes that legal and consumer bodies from around Australia are supporting a national 'Legal  Aid  Matters' campaign to stem the legal aid funding crisis; and  

4. Calls on the state and federal governments to urgently increase funding to the Legal Service Commission, community legal centres and other services  that help  South Australians in their dealings with both the criminal and civil justice systems.

There is a crisis in legal aid in this country. Over many years funding for legal services for some of the most disadvantaged in our community has been cut to the point where many people living well below the poverty line are now regarded as too wealthy to be eligible for legal aid.

In her keynote address to the opening of the Law Council of Australia's biennial National Access to Justice and Pro Bono Conference in Adelaide last week, President Fiona McLeod SC said, 'Legal assistance goes to the very heart of what kind of nation we are.' She then posed the question as to whether we want to live in a society where everyone can get a fair go from our legal system or whether we are happy with the system where justice is only for the rich. That is the question that is answered in large part by our approach to legal aid.

As a young lawyer, 30 years ago, I quickly learnt that most people, given a choice, would prefer not to have to deal with the legal system. The reality of life, however, is that at some stage all of us will find ourselves needing help with the law. For those who are relatively well off, they can pay for lawyers to help them with their property transactions, business dealings, deceased estates, divorces or even the occasional interaction with the criminal justice system. The private legal profession serves those needs but for those who cannot afford private legal help the situation can be dire.

That is where the legal aid system, in all its manifestations, steps in. There are three main components of legal aid that I want to address. The first is what is often referred to as government legal aid. In our case it is the Legal Services Commission of South Australia. According to the president of the Law Society of South Australia, Mr Tony Rossi, in his address to the Access to Justice and Pro Bono Conference last week:

South Australia's Legal Services Commission budget is being cut by $10 million over four years (being a $6  million reduction in State funding and a $4 million cut in Commonwealth Funding). The Commission's 2016-17 SA  budget allocation is reduced by $1.3 million from the forward estimates. Its base funding continues to be reduced each year because of an 'efficiency dividend' imposed by the State Government.

The second arm of legal aid is often referred to as community legal aid, which is represented in South Australia by a number of community legal centres that have either a generalist or a specialist focus. Generalist services are often geographically based, such as the five metropolitan and the five regional services. These include the Central Community Legal Service, the Northern Community Legal Service, the Roma Mitchell Community Legal Service, the Southern Community Justice Centre and Westside Community Lawyers. We also have the regional centres, which are based in a number of locations. These include the Riverland, Mount Gambier, Port Pirie and Port Augusta.

We also have a number of specialist community legal centres. These include the Child Support Service, the Children's and Youth Legal Service of South Australia, the Consumer Credit Law Centre, the Disability Discrimination Legal Service, Mediation SA and the Environmental Defenders Office. We also, of course, have the important Aboriginal Legal Rights Movement, an organisation that is very much at the cutting edge of many of our problems in South Australia. Again, Law Society President Mr Tony Rossi said last week in his address to the conference:

The State's Community Legal Centres are facing a $1.2 million reduction in funding and the Aboriginal Legal Rights Movement, a critical service already operating on a shoestring budget, will inexplicably be stripped of $300,000 in funding come July. The South Australian Government currently contributes 19.5% of total funding to SA Community Legal Centres. All other States except Tasmania contribute between 42% and 60% of the total funding for Community Legal Centres operating in their State. 

The Law Council of Australia's president, Fiona McLeod, pointed out that the community legal centres nationwide were forced to turn away some 160,000 clients. These are 160,000 people who thought that their situation was serious enough to seek legal assistance, and most of these 160,000 people would not have been able to afford to get legal assistance in any other way.

She pointed out in her address that a number of the problems that these people sought legal advice on would have been exacerbated by them not getting timely legal assistance. She also pointed out—and I refer to this in the motion—that the Productivity Commission, those hard-nosed bean counters, has calculated that there are massive costs associated with not funding legal aid properly. They pointed out that there would be a massive saving overall, not just for the individuals involved but also for the community at large, if we properly funded legal aid.

Whilst talking about community legal centres, I probably need to declare, as I have done on many occasions, that I am a life member and former employee of the Environmental Defenders Office, one of the CLCs I mentioned. That is a service that continues to operate despite having 90 per cent of its federal funding cut. It is still going, albeit on a reduced basis, mainly thanks to the generous support of individuals, the private legal profession, Flinders University, the Law Foundation and a small grant from the state government.

The third arm of legal assistance is referred to as pro bono. In short, it is the private legal profession providing free services to the community and to those in need. To put this into context, I will again refer to the remarks of Fiona McLeod SC, the President of the Law Council of Australia. What she said last week was:

As the legal profession's peak body, we have been determined to point out that while a serious access to justice problem has bee n created by the funding crisis— it is a crisis that would be worse were it not for the culture of pro bono ingrained deep in the Australian profession. 

The pro bono work undertaken by Australian lawyers is a matter of enormous pride for us. 

Australian lawyers give away literally hundreds of thousands of pro bono work hours every year to those who have no  one  else to turn to and cannot afford to pay for legal services. 

The Australian  Pro Bono Centre's latest report finds that 402 thousand  hours of pro bono services were provided in 2015 /16. 

That's 35 hours of pro bono legal services, per lawyer, per year. 

Roughly one week of unpaid work a year for every Australian lawyer. 

And of course we know the official numbers will tend to vastly under-represent the actual level of pro bono achieved by private practitioners. 

Yet remarkable though this contribution is, we know pro bono cannot ever be a substitute for properly funded legal aid services. 

Indeed, in order for pro bono to be truly effective a strong legal assistance sector is vital, especially the Aboriginal and Torres Strait Islander  Legal Services  and  Community Legal Centres , both of which are  in fact  predicated on a model which enables legal professionals to work for free. 

That is why cuts to these services are so damaging.

The President of the Law Society of South Australia echoed those comments, saying: 

Pro bono is important and to be encouraged, but it should be a complement to Government funded legal services; it should not be treated as a substitute for Legal Aid. 

I would, at this point, like to acknowledge the efforts of JusticeNet in South Australia. That is our very own pro bono legal facilitation service. JusticeNet aims to provide a safety net for individuals who cannot afford a lawyer or get the help they need from elsewhere. They also operate a self-representation service, which provides direct legal assistance and advice to people representing themselves in court.

One of JusticeNet's most important fundraisers for the year is the annual Walk for Justice, which this year is on Tuesday 16 May. I would urge all MPs to get involved. I know that a number of members of this chamber have participated in the past. Certainly, I have seen the Hon. Stephen Wade there. I think the Hon. Andrew McLachlan may have put in an appearance. In fact, it is a who's who of lawyers in South Australia. There were over 600 people walking for justice last year. My promise to any member of parliament who turns up this year is that I will personally serve you breakfast as part of the JusticeNet's breakfast preparing and serving team on that day.

In terms of where to go in terms of public funding, the Law Society of South Australia has put in a budget submission and in that budget submission they have asked for a number of improvements to the funding for legal aid. Again, referring to Tony Rossi, the President of the Law Society, he says:

In South Australia, the State Government has placed a very low priority on funding the justice system. Not only does it contribute much less to funding legal aid than most other State Governments, the budget for the Courts Administration Authority is very constrained and the courts operate in sub-standard buildings with sub-standard facilities. 

The Society, in its submission to the State Government  budget process will be calling for the Government to, at the very least, immediately restore $6 million in funding cuts to the Legal Services Commission; and  for  the allocation of funding to enable the  Legal Services Commission to provide legal representation in civil matters. The  Society  will also be calling for the  SA  government to increase its share of funding to  Community Legal Centres. A s 40 per cent of the work performed  in  CLC s is in matters pertaining to State-based laws, a 40 percent contribution, amounting to $1.85 million in 2017-18 would be appropriate. And then there is the $300,000 in funding to be restored to the Aboriginal Legal Rights Movement. 

In conclusion, I wanted to put those brief remarks on the record today; however, there is much more that needs to be said about the legal aid crisis in South Australia. In particular, there are some case studies and stories that illustrate why this debate is important to all of us, not just those directly affected by legal aid cuts or the unmet need identified by community legal centres. I do want to put some of these stories on the record, but I will do so at a later date. I would now seek leave to conclude my remarks at a later date.

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