The Government will:
The Access to Justice Advisory Committee said that the provision of effective legal services was at the very heart of the achievement of access to justice. The Commonwealth is committed to making legal services more readily accessible to all members of the community. The Justice Statement contains a package of initiatives, each component of which has been carefully selected to ensure the targeting of legal services in the most cost-effective manner, directed to areas of the highest need. The Commonwealth has sought to lead the way with creative solutions to enable significant advances in the expansion of services for all Australians.
The Commonwealth funds a range of important services, including legal aid commissions, community legal centres, family mediation and financial counselling services. This Statement expands the Government's commitment to each of those areas. The Government already commits over $140 million each year to these services to assist people to resolve legal and associated problems. These funds are primarily provided to legal aid commissions, which are independent bodies established under State and Territory law, with community legal centres and community mediation agencies also receiving funds.
The Government is committed to ensuring that the Australian public receives an efficient and effective service for its investment. The Access to Justice Advisory Committee concluded that the Commonwealth Government had not been sufficiently energetic and innovative in legal aid policy. This Statement will address that criticism and marks a significant shift in the Commonwealth's role in legal aid.
While recognising the substantial financial contribution made by the Commonwealth to legal aid, the Access to Justice Advisory Committee identified a systemic weakness in the administration of legal aid in Australia. The Advisory Committee stated that there had been a lack of strategic direction at the national level that has resulted in inefficiencies and unequal access to legal aid. Notwithstanding that it is the major funder of legal aid, the Commonwealth has not pursued an active leadership role and has not had an involvement in legal aid policy and direction commensurate with its funding contribution. While the Commonwealth is entitled, under the Commonwealth/State funding agreements for legal aid, to set parameters in relation to programs and budgets, it has not done so to the extent that it could to direct priorities for legal aid and specify national standards.
The Access to Justice Advisory Committee considered that the Commonwealth's role should not be limited to providing funds, but that it should also take steps to see that legal assistance throughout Australia is provided efficiently and effectively and should promote national equity in the provision of legal aid.
The Access to Justice Advisory Committee recommended a restructuring at the Commonwealth level to enable the Government to achieve its objectives of increased access and equity. It considered that a body specifically charged with the responsibility of achieving these goals would enable the Government to be more active in legal aid planning in the interests of equity and efficient use of resources.
The Government accepts the need for it to take a more active role in legal aid at a national level. The ploughing of more and more resources into the legal aid system is not a sufficient response. There is a place for some additional targeted funding of legal aid and the injection of additional money into legal aid for specific purposes is further discussed below. However, the principal thrust of the measures in this Statement is to reform key legal institutions in the interests of greater efficiency and to reduce the demand for legal services. For example, expanding mediation and counselling in family law and sponsoring community-based crime prevention as part of our Safer Australia program aim to reduce the demand on courts and the legal system. In respect of legal aid, our focus is also on reforming the way in which legal aid is provided to ensure the best use of public resources to assist those in need of legal assistance.
The Government's aim is to ensure that scarce resources are used efficiently and effectively to provide legal assistance to those most in need in the community. This Statement will also promote national equity in the provision of services so that people are not disadvantaged in gaining access to legal services according to where they live. Furthermore, the Government is committed to ensuring that those who suffer special disadvantages due to language barriers, social dislocation, sex, race, disability or geographic location, are able to access the services provided by legal aid commissions.
The Government will initiate a national approach to ensure Commonwealth objectives are met throughout the legal aid system, to improve coordination of services and guarantee equity of access. The first step in the Government's new approach will be the establishment of an Australian Legal Assistance Board, which will adopt a national role in the formulation of legal aid policy and the development of priorities for the provision of services.
As the principal funder of legal aid, the Commonwealth considers that it has a responsibility to provide strong leadership in the development of policies and procedures administered by the commissions, to ensure that, as far as possible and desirable, access to services is uniform across Australia. Australians should not be disadvantaged by where they choose to live. To overcome the inconsistent eligibility criteria for legal aid assistance that currently operate, the Government, in co-operation with the legal aid commissions, will develop uniform eligibility criteria and will promote means to ensure efficiencies in the delivery of legal services. The Government will also work for the adoption by legal aid commissions of uniform performance criteria. Improvements in these areas will guarantee that administrative costs are kept to minimum levels to maximise resources available for direct assistance to the community.
The regular meetings of the directors of legal aid commissions also provide a vital forum for information exchange and allow directors to develop a coordinated approach to common problems. The director of Legal Aid and Family Services is a member of this forum.
Legal aid commissions are independent statutory bodies managed by boards of commissioners who represent the Commonwealth and State Governments, the legal profession and community interests. The Commonwealth's representatives will be taking an increasingly active role in their contribution to the operation of legal aid commissions.
The responsible Minister, the Minister for Justice, is also advised by the National Legal Aid Advisory Committee. This Committee has produced a number of useful and informative papers covering many issues relevant to legal aid. It is an advisory body that reports directly to the Minister. Its members have included experienced legal practitioners, a representative of community legal centres, a representative of legal aid directors and persons skilled in accounting. It has made a practice of consulting widely with relevant interest groups in developing its recommendations. However, the National Legal Aid Advisory Committee is only a part-time advisory body that has not been able to take a lead in implementing policy. What is needed now, as the Access to Justice Advisory Committee concluded, is a full-time policy development body that advocates change and leads the debate in legal aid.
While valuable work has been undertaken by this range of groups, the Government accepts the concern raised by the Access to Justice Advisory Committee that there has not been a single clear policy direction arising from the activities of these bodies.
In its report, the Advisory Committee identified the need for the central coordinating and funding role of legal aid to be performed by a single national body with responsibility for the efficient functioning of the entire system. This body would be responsible to Government for achieving its program objectives.
The Government will establish the Australian Legal Assistance Board to actively pursue a national approach to the delivery of legal aid to increase access, equity and efficiency. The National Legal Aid Advisory Committee will be abolished and its functions taken over by the new Board.The Australian Legal Assistance Board will report directly to the Minister for Justice. It will comprise three members including a full-time chair. One part-time member will be the director of Legal Aid and Family Services Division and the Board's work will be supported by Legal Aid and Family Services. The Board will have the authority to negotiate on behalf of the Government to bring about change.
The task of the Board will be to ensure that Commonwealth priorities for delivery of services are reflected in funding guidelines. This will promote equity in the availability of legal aid. The Board will work with State and Territory Governments to ensure services are provided on an equitable basis and are targeted to those areas of highest priority.
Most of the strategic planning issues for legal aid are national. Instead of several bodies developing policy there will be a consistent and strategic approach to addressing issues, anticipating legal aid needs and planning solutions. The directors of legal aid and Legal Aid and Family Services have started to develop national responses to common concerns. The Board will work with directors to build on this foundation and develop optimum responses to issues as they arise. It will consult with relevant interest groups where appropriate in its activities.
The Access to Justice Advisory Committee also emphasised the importance of analysing the factors that affect demand for legal aid services. One of the Board's early tasks will be to develop a methodology to quantify and monitor changes in the demand for legal aid services. By identifying factors that affect the level of demand for legal aid services, the Commonwealth Government will be in a better position to determine appropriate methods for distributing funds. It can then negotiate any changes in funding arrangements that may be necessary.
Through the Board, the Commonwealth will identify and promote the best methods of operation in legal aid management and service delivery. The Commonwealth will lead the way in the promotion of innovative approaches to service delivery such as franchising services, legal expense insurance schemes and contingency legal aid funds. The Government sees real benefits flowing from adopting creative and effective practices across the country. The Board will be in a position to undertake the work needed to ensure that the best ideas are not only evaluated but actively promoted.
The Australian Legal Assistance Board will:
There is no question that legal aid must continue to be available to those who need it most. Unfortunately, people requiring assistance, particularly in the areas of family law and civil matters, have not always had access to it, due to the priority being given by commissions to the funding of criminal matters. The Commonwealth is committed to a reassessment of the priorities that are being given to funding all types of cases to ensure that funds go to those most in need of assistance.
While the Government recognises that anyone accused of a serious criminal matter needs legal representation, providing assistance in criminal matters cannot always be at the expense of legal assistance in other matters. These legal problems have different, but equally serious, consequences for the people concerned. For example, women seeking protection from violence may have their lives at risk and an unemployed worker and his or her family may face eviction proceedings without access to legal assistance.
The Government will provide an additional $16.8 million over the next four years to legal aid commissions to enable commissions to deliver more services in civil and family law.At first, the additional funds flowing from this Statement will be targeted to the provision of additional services in specific areas to increase the number of people able to obtain legal aid in family law and civil law.
Ongoing funding will be made available to only those commissions who will reassess their service delivery priorities.
Individual commissions will be required to develop programs that address the Commonwealth's goal in bringing about real reforms in the way in which services are delivered. Commissions will also be encouraged to adopt innovation and efficiencies that enable the maximum number of people to benefit from the funding of legal aid.
The performance of commissions against the Government's objectives will be monitored to ensure services are being targeted to those most in need. It is the Government's intention to create greater access to a comprehensive range of services for as many people as possible in the most efficient way and equitably across States and Territories.
The Commonwealth considers that guidelines for funding should reflect national considerations and achieve equity of access to services, irrespective of the State or Territory in which aid is sought. At present a person may be eligible to receive assistance in a matter in one State and when the matter is transferred to a court in another State, no longer be eligible to receive aid. Clearly this is not satisfactory.
The Commonwealth is committed to creating innovative solutions in the legal aid area. The Government, through the Australian Legal Assistance Board, will encourage commissions to seek alternatives to traditional service delivery.
The Government is committed to ensuring that access is available to a full range of services to assist people to resolve their problems. Often, people only need advice or information and are then capable of resolving a dispute or legal problem by themselves.
Advice may be provided in a variety of ways. Legal aid commissions currently provide a range of advice services, some by telephone and others through a shop-front service for short advice sessions with commission lawyers, which is especially useful where a matter involves detailed documentation or where a group of people need to be involved. Improvements in technology have made it possible to assist people who would otherwise not have information available due to language problems or their geographic location. For example, the use of telephone interpreter services and combined phone and facsimile arrangements increases the number of matters that can be dealt with over the phone.
Timely advice may prevent an issue from developing into a dispute that needs to be resolved in court. However, not everyone can afford to go to a lawyer for the advice that would enable them to decide on appropriate courses of action when faced with a potential legal problem. Consequently, there is a great demand for free advice services but not enough services to meet that demand. Commissions often have long waiting times for access to advice, or are forced to offer shorter interviews than would be desirable. Advice services do not cater for all people, particularly those from non-English-speaking backgrounds.
Legal aid commissions provide advice services without means tests. This will give access to legal advice to people of average means who may not meet the means test for a grant of legal aid but nevertheless cannot afford private legal advice. This Statement will extend the commissions' capacity to provide advice, a valuable and accessible service for many more Australians.
The Government will provide additional funding of $6.9 million over the next four years to legal aid commissions, so that they may provide more people with legal advice that is not means-tested.The Government is keen to ensure that these new funds reach those people who are currently disadvantaged in accessing advice services, particularly people of non-English-speaking backgrounds and people from rural and remote areas. Commissions will be encouraged to explore ways of providing advice services to these people.
Through its legal aid statistical system, the Government will monitor the levels and targeting of advice being provided, to assess the impact that the additional funds have had on improving access to information on the law. We will be able to make sure the advice services provided are those most needed in the community.
Contingency fees will also assist many people who would not otherwise be able to afford legal representation. Lawyers are increasingly providing their services to people in this middle income range on a speculative or contingency fee basis in cases where there is the prospect of an award of money if the case succeeds. Personal injury cases are the most common example. Small businesses may also need a lawyer in circumstances where the expected outcome is a financial gain, such as an order to pay for work done under a contract. At present these commercial matters are not funded by legal aid.
Many lawyers are willing to forgo professional fees until the end of a case or, where the case is important enough, to forgo their fees altogether and take the work on a pro bono basis. Nevertheless, other up-front costs often have to be met by the client in order to take legal action, such as fees for expert witnesses and medical reports. These `disbursement costs' can be expensive and need to be paid before the case is heard and any award paid. Disbursements can thus act as a barrier to access to justice.
While some people are able to borrow to meet these costs, there are many people who do not have sufficient assets to borrow money and who would hence be unable to seek legal redress, even with a lawyer prepared to act on a contingency basis.
The Access to Justice Advisory Committee identified this situation and considered that there is a place for funds that would advance disbursement costs to people taking action on a contingency or speculative basis, on the basis that these costs would only need to be repaid in the event of a win in the litigation.
The Government will provide funding of $10.5 million over three years to establish a national disbursements assistance fund. The fund will meet up-front costs of litigation, where the lawyers in the case are acting on a contingency or no fee (pro bono) basis.The National Disbursements Assistance Fund will advance up-front costs for disbursements but not for legal fees. These disbursements will have to be repaid only if the client wins the case. An application fee will apply. An administration fee will also be imposed on successful cases. The repaid costs and the administration fee will be returned to the fund, with the fund being self sustaining after the initial injection of funds provided for in this Statement.
The Disbursements Assistance Fund will allow people to engage lawyers willing to work on a contingency, speculative or pro bono basis, to pay filing fees and to pay for the collection of evidence from experts. The availability of good evidence at an early stage can also reduce the need for litigation by encouraging out-of-court settlements. This will reduce the time and costs of resolving matters. People funded by the scheme will be encouraged to seek early settlement of their cases or try alternatives to litigation to resolve disputes.
The Disbursement Assistance Fund will be administered centrally by the Commonwealth. Applications will be carefully assessed - only those with good prospects of succeeding will be funded in order to safeguard the viability of the fund as a self-sustaining entity. People will be eligible to apply who are unable to meet the up-front costs of disbursements, who have a good case, and where the amount likely to be awarded or recovered in costs is greater than the amount of the disbursements. In some cases, this may include the respondents to an action where costs are likely to be awarded in the event of success. Small business may also use this scheme.
Similar funds have been established in a number of States. These funds differ in the criteria they apply and their methods of operation. The Australian Legal Assistance Board, which will oversee the development and operation of the fund, will liaise with these services in order to adopt a coordinated approach to the development of these schemes and to avoid overlap.
The Disbursements Assistance Fund will provide additional opportunities for people to resolve legal problems through the justice system in cases where funding is not available currently.
At present, there is a small Commonwealth public interest and test case scheme. However, the scheme has been limited to cases that will resolve uncertain areas of Commonwealth law. This restriction has prevented the scheme from assisting in cases that arise under State law or common law. Yet these cases often have a national importance beyond the jurisdiction where they have arisen, particularly where they involve the interpretation of laws or common law principles that operate in similar forms throughout Australia. This scheme will focus on cases that will clarify laws in areas where the Commonwealth has a particular interest such as anti-discrimination, the environment, consumer law, banking law, company law and constitutional law.
People cannot currently receive assistance from the Commonwealth for the legal expenses needed to take such matters to court, yet the whole community, or significant sectors, may benefit from having uncertainties in the law resolved. Small business, for example, would benefit from having the provisions of laws with which they have to comply clearly interpreted, but individual small businesses usually cannot afford the risk of legal fees.
Test cases fulfil an important function in defining the nature of the rights and responsibilities of government, industry and the community. There is clearly a place for test cases at the national level designed to clarify and develop the law.
The Government will extend the present test case scheme so that it can provide funding, not only for cases arising under Commonwealth law, but also those cases of national importance that arise under state or common law, particularly in areas in which the Commonwealth has an interest such as anti-discrimination, the environment, consumer law, banking law, company law and constitutional law. The Government will provide earmarked funding of $2.9 million over the next four years to assist people to run cases of national importance in previously untested areas of the law, where clarification of the law will benefit the community.The cases funded will be limited to those of national importance. A range of matters will be considered in assessing applications under the scheme, especially the benefit to the public, or any section of the public, that will result from any decision in a particular case. This scheme, like the Disbursements Assistance Fund, will also be available to respondents as well as plaintiffs.
Community legal centres provide services in areas of great concern for many Australians. These areas include consumer credit advice, family law, domestic violence, child support and social security matters.
The first community legal centre in Australia, Fitzroy Legal Service, was opened by a group of community activists in 1972. It started with no government funding and relied completely on volunteers to provide legal assistance to its local community. The spirit and commitment that led to the establishment of Fitzroy Legal Service spread across the nation over the next two decades and continues today. A large number of Australians from many walks of life, but most notably from the legal profession (practitioners and students), contribute to the strength, responsiveness and impact of these services. Communities recognise the value of services that can quickly respond to their needs and have demonstrated this through voluntary management support. This Statement also recognises that these independently incorporated community-managed services are central to the provision of access to justice for those who might otherwise be disenfranchised, unrepresented or simply uninformed about their legal rights and responsibilities. Many services now receive government grants to support their activities.
The Commonwealth Government currently provides over $8 million each year in funding to 91 community legal centres across Australia through the Commonwealth Community Legal Centre Program. The centres funded include specialist networks dealing with child support, disability discrimination and welfare rights matters and services specialising in a number of fields including tenancy, youth advocacy, consumer credit, women, environmental law and HIV/AIDS. In addition, the Government also provides funding for specialist community-based legal services to assist people with intellectual disabilities.
Unfortunately, people living in many areas of Australia still do not have access to community legal centres. Traditionally, community legal centres have been established on the initiative of their communities, rather than in an ordered and planned way. Many communities have not had the resources to develop centres on their own initiative. To address this problem, the Commonwealth Community Legal Centre Program will be boosted by a major injection of funding for a range of targeted community legal services. The Government will work with communities to foster community support for the development of new services in areas of highest need.
Over the next four years, $13.9 million will be allocated to the Commonwealth Community Legal Centre Program to increase the number of generalist and specialist community legal services.Together with the $16 million allocated elsewhere in this Statement for an extensive network of women's legal services and outreach workers, this combined increase doubles the annual Commonwealth Community Legal Centre Program and will result in at least 125 new full-time legal service workers.
The Government will extend the availability of services to areas of greatest need, particularly to rural regions and to high growth outer metropolitan areas. These new services will be resourced to provide advice, community legal education and casework, with some litigation. The services will be able to offer assistance in areas of the law of concern to many Australians including family law, welfare and study assistance rights, employment, consumer and housing problems.
The services will be developed in consultation with the communities they are to serve and will be encouraged to extend assistance through outreach programs and telephone services. The operation of these new services will depend on community volunteers with a range of skills and interests.
The Government recognises that community legal centres' close links to their communities are an important part of their effectiveness and accessibility and will continue to support and foster this fundamental characteristic through encouraging community participation and development.
The Government will establish five generalist community legal services for regional western New South Wales, northern New South Wales, the Riverina region (Victoria/New South Wales), the Sunraysia region of Victoria and the Central Coast region of Queensland.The new community legal centres will be funded on the basis of appropriate criteria and submissions sought from community groups through public advertising. The type of legal services provided by these new centres will be developed after consultation with communities about the needs of their regions.
The Government will establish four new generalist community legal centres in outer western Sydney, the Central Coast of New South Wales, the Gold Coast of Queensland and north Perth. These areas have all been identified as areas with high needs that are currently under-serviced.As with the proposed new rural and regional community legal centres, the new generalist centres will be funded on the basis of appropriate criteria and submissions sought from community groups. The type of legal services provided by these new centres will be developed after consultation with communities on their needs.
The Government will fund three litigation specialists who will be attached to existing community legal centres on a trial basis for the next three years. Assistance will also be provided with the up-front costs of litigation such as the costs of medical reports and witness expenses.If the experience of these litigation advocates is successful we may consider further funding for similar positions in other community legal centres.
In response to this concern, the Government will establish a national network of environmental lawyers, who will be placed within existing services such as community legal centres. The new environmental lawyers will offer advice and assistance in a broad range of environmental matters including urban planning, heritage protection and other issues of concern to local communities. A national network of environmental lawyers will be valuable, as all States and Territories have a need to ensure the protection of the environment.
The Government will establish a national network of environmental lawyers that will significantly increase the range of environmental legal services available in Australia. Seven new positions for environmental lawyers are to be located in services such as existing community legal centres. This will mean that environmental lawyers will be located in existing services to provide an environmental law service in every State and Territory.
To ensure that the network of women's services is as widely accessible as possible, funding will be provided for existing women's services to open satellite services in outer urban regions. Funds will also be provided to extend the network into rural areas by attaching specialist women's legal workers to other community services in those areas.
All of the problems faced by children and young people are exacerbated by their inexperience and may be intensified when families breakdown.
Children and young people need information about their legal rights and also their responsibilities as members of the Australian community. Parents, teachers and other people who are important in their lives are also in need of clear and accurate information and advice.
In order to address the legal implications of these issues in ways that are sensitive and appropriate to the particular needs and priorities of young people, the Government will provide funding for specialist children and youth lawyers.
The Government will fund four new specialist children and youth lawyers. This will increase the availability of legal services and improve access to justice for more Australian children and young people.
The Government will establish a specialist Human Rights and Discrimination Law Centre. This service will significantly increase the availability of specialist legal advice on human rights and discrimination law matters.The Human Rights and Discrimination Law Centre will build up a comprehensive knowledge and understanding of human rights and discrimination law. The centre will develop a high level of practical expertise in dealing with the special needs of people making complaints under that law. As well as providing a service to its target group, the Human Rights and Discrimination Law Centre will play an important role in resourcing community legal centres to deal with special needs when clients seek assistance in these areas. Further details of the new centre are provided elsewhere in this Statement.
As part of the Government's objective of achieving social justice for people with disabilities, we have established a network of specialist disability discrimination legal centres. These services are in every capital city and provide assistance to people with disabilities to make complaints under anti-discrimination legislation to the Human Rights and Equal Opportunity Commission. The specialist disability discrimination legal centres provide legal advice on disability discrimination matters and work closely with the disability community.
These services have already been successful in their efforts to assist people with disabilities who experience discrimination and in actively achieving systemic change. The two smallest services, in the Australian Capital Territory and the Northern Territory, have found that they require additional funds to provide the services their communities require. The Government is committed to increasing the funding that is available for disability discrimination legal centres.
The Government will provide additional funding to disability discrimination legal centres in the Australian Capital Territory and the Northern Territory to increase their capacity to provide legal assistance to people with disabilities.
Community legal centres will be required to be more accountable and to adopt the best methods for service delivery to receive Government funding. There is scope for community legal centres to improve their efficiency by adopting the best methods of service delivery appropriate for the community sector. The Government will co-operate with community legal centres to ensure that they continue to foster such methods and meet agreed standards for delivering services.
The Community Development Project will be able to assist centres to establish standards and benefit from the management and service delivery experiences of other centres. The project will assist centres to implement Government priorities. The Community Development Project will provide an opportunity for the development and distribution of community legal education resource materials.
The Government will establish a community development worker with the National Association of Community Legal Centres. The worker will assist the development and more effective operation of community legal services throughout the country.
The Government will introduce a National Information Scheme for the collection of consistent national data on community legal centres and financial counselling services.Together with information currently collected from legal aid commissions, the information collected from community legal centres will give a better picture of legal aid activity throughout Australia. It will enable future planning for equitable and efficient legal aid delivery to members of the community based on identified needs. The project is being jointly developed by the community legal centres and legal aid commissions for commencement in mid-1995.
Many community legal centres and financial counselling services currently lack the appropriate computers needed for participation in this important project to collect better data on their work.
The Government will resource new services that lack appropriate equipment to participate in the National Information Scheme for the collection of consistent national data on legal centres and financial counselling services. The provision of new or upgraded hardware will enable these services to participate in the scheme.There will be substantial benefits for many services arising from a coordinated national approach to this one-off capital works information technology upgrade initiative. This initiative will provide centres with the ability to manage client information more efficiently and free-up resources for services delivery. With the collection of consistent information, the centres will be better able to service the needs of the community.
The Statement offers a comprehensive package of initiatives that are both innovative and directed at a broad range of people. Through extra funding for legal aid, advice will be available to thousands more Australians. The additional funding in this Statement will allow many more people to protect their rights in the civil and family areas. The introduction of contingency fees accompanied by the Disbursement Assistance Fund will cater for the gap between those who are eligible for legal aid and those that can independently afford a lawyer. Finally the Government, through the creation of the Australian Legal Assistance Board, will ensure that the most cost effective methods of service delivery are pursued. The Commonwealth will also be better placed to pursue its priority of funding more civil and family law cases. Taken as a whole, this package will make a significant contribution to access to Justice for many Australians.
 See `Lawyers'.
 See `National Women's Justice Strategy'.
 See `Human Rights'.