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Opinion Piece: Paltry funding of legal aid will cost the society dear

5 April 2019
 

Opinion Piece by Law Council of Australia President, Arthur Moses SC – published in The Australian, Friday, 5 April 2019.

All Australians deserve access to justice, a sentiment that lies at the very heart of our democracy, and one the Government categorically dismissed in this year’s Federal Budget.

To say the Budget missed the mark when it comes to improving justice outcomes for vulnerable Australians is an understatement.

A paltry legal assistance funding boost of $20 million in 2019-20 means the community will ultimately pay the price for the Government’s neglect of the sector.

This does not come close to addressing the minimum $310 million a year shortfall identified by the Law Council, which included the $200 million recommended by the government’s own Productivity Commission to address unmet legal need in civil law alone.

It is a bitter disappointment for our justice system.

While the Budget may be returning to surplus, Australia will remain in a justice deficit so long as the Government fails to deliver adequate funding for legal assistance.

This is not the fault of the Attorney-General but stems from a broader systemic failure of government and bureaucracy to appreciate that not investing in access to justice is a false economy.

The legal profession has an important role to play in persuading government otherwise, by leading clear evidence to substantiate a business case for change. The Law Council’s Justice Project was a landmark report and an important piece of evidence, but more must be done.

We have called for Australia to follow the UK’s lead and introduce Justice Impact Statements to build whole-of-government thinking on this issue.

Time and time again we see laws introduced, or policies changed, with significant downstream impacts on the demands for legal assistance and capacity of courts.

Justice Impact Statements would ensure due consideration is given to funding the justice system and equip Attorneys-General to approach the Government of the day with an evidential basis to inform fiscally-responsible decision-making.

Former High Court Chief Justice Murray Gleeson once said: “Providing legal aid is costly, however, so is not providing legal aid”.

This sentiment is almost certainly true for funding of all participants in the legal assistance sector, from Legal Aid Commissions (LACs), Community Legal Centres (CLCs), Aboriginal and Torres Strait Islander Legal Services (ATSILS) to Family Violence Prevention Legal Services. None were real winners in this Budget.

Admittedly, the provision of an additional $30 million for the sector over three years starting in 2020-21 does provide some welcome funding certainty. But it does not go far enough.

For too long, the community legal sector has been subject to a hand-to-mouth existence that has impacted on these centres’ abilities to provide services to vulnerable members of our community.

We should not have two classes of citizens in this nation – those who can afford justice and those who cannot. Yet this is the unfortunate reality for Australians.

Vulnerable people in our community will continue to face significant barriers to justice until more legal assistance funding is allocated, as the Law Council’s Justice Project report illustrates.

A corollary of inadequate funding is the increasing need for frontline services to prioritise demand in terms of who can be assisted and the matters that can be responded to.

The Government’s decision to reverse proposed cuts and provide additional funding of $16.7 million over three years for ATSILS provides some relief and certainty.

However, it is not simply the quantum of funding that is important – how funding is to be administered and designed to address need is critical.

The decision to dissolve the Indigenous Legal Assistance Program and roll funding for ATSILS into a single funding mechanism is therefore extremely concerning as this threatens the very independence of these services.

ATSILS provide specialised and culturally appropriate legal services for some of the most marginalised people in our community. They need to maintain their independence to effectively continue their vital work.

To collapse these services is disrespectful and contrary to the principle of self-determination.

While the Law Council supports the establishment of a Commonwealth Integrity Commission, it is uncertain whether the $104.5 million over four years will be adequate.

It is also vital that that a separate stand-alone federal judicial commission is created to provide a fair, independent mechanism to hear any complaints against judges.

A funding increase of almost $7 million for the federal courts in 2019-20 was noted but this also fails to properly address the chronic underfunding and under-resourcing of our over-worked federal courts.

The sum of $35 million set aside to support expanding the Federal Court’s jurisdiction to include corporate crime is welcome, but there was little reprieve for the Family Court and Federal Circuit Court, where families and children are having to wait up to three years to have matters heard.

What this Budget underscores is an urgent need for a thorough review of the resourcing needs of federal courts and tribunals, in consultation with the community and stakeholders.

In his campaign speech, Australia’s first Prime Minister Edmund Barton spoke of the importance of raising up institutions. Institutions, he said, “Under which justice shall be done to all”.

Barton’s Australia needed a nation-building agenda but today Australia needs a restorative agenda.

Public confidence in our traditional institutions needs to be re-established, from our Parliaments to our justice system, our courts, our judiciary and even our legal profession.

This is not just about demanding more money.

This is about ensuring equitable access to legal assistance for the sectors of our society that are missing out, who face significant marginalisation and disadvantage, circumstances often exacerbated by barriers in access to justice. Australians know money doesn’t grow on trees.

But in a week where the Treasurer boasted of $45 billion in surpluses over the next four years, yet delivered a Budget that failed to invest in the basic Australian values of justice, equality and the rule of law, something just doesn’t add up.

The unfortunate reality is that justice is not accessible or affordable to all Australians today.

The Federal Budget represents a missed opportunity to make a direct difference to peoples’ lives.

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