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Reversing legal aid cuts isn’t enough to ensure access to justice

Differences in personal resources and capabilities mean that the most vulnerable Australians find the legal system inaccessible. AAP/April Fonti

The Abbott government cleared another “barnacle” last week when it announced that proposed cuts to legal assistance services would not be going ahead. The inexplicable decision to withdraw this funding jarred with the government’s new and growing commitment to eradicating family violence. It is a sensible decision.

However, the demand for government-funded legal services is large and growing. Simply “not cutting” these services does the community a grave disservice. More must be done.

Need for legal assistance

In December 2014, the Productivity Commission’s access to justice inquiry released its final report. It found that:

Disadvantaged people face a number of barriers in accessing the civil justice system, which make them both more susceptible to, and less equipped to deal with, legal disputes. If left unresolved, civil problems can have a big impact on the lives of the most disadvantaged. The Commission was given many examples of simple problems spiralling into complex problems when legal assistance was not provided. Unmet civil problems can also escalate into criminal matters.

Differences in personal resources and capabilities mean that the most vulnerable Australians find the legal system inaccessible. There is a role for government in assisting these individuals to uphold their legal rights and resolve their civil (including family) law disputes.

Ensuring that laws are fair and processes are as simple as possible are key ways that governments can deliver justice, along with providing financial support for non-government agencies to provide advice and assistance to the many clients who have legal problems and can’t get help.

This should extend to promoting community understanding of legal issues, and actively engaging with policymakers. But recent funding restrictions reduce this important work.

The cuts, the backflip, the impact

Days before the 2013 election, the Coalition announced that it would cut A$43 million from Indigenous legal services across Australia. These cuts purportedly targeted law reform and advocacy activities and wouldn’t impact frontline services. However, these agencies spent about 1% of this funding on specialist policy and law reform roles.

In December 2013, the government confirmed that the cuts would amount to $42 million over four years, but would cover non-Indigenous services as well – stretching to legal aid and community legal centres.

Again, there was a pretence that these funding cuts would not impact frontline services. But in Queensland, for example, these cuts would actually affect:

  • consumer law services in Cairns, helping people that have been the subject of predatory and unlawful business practices;

  • specialist legal services for tenants who are facing eviction across Queensland;

  • a specialist family law outreach service in Coomera;

  • help for the Inala community to access general legal help, from an organisation that recently had to relocate after its premises were condemned;

  • family law services on the Sunshine Coast and in Townsville, helping people when their relationships end;

  • state-wide advice and casework support for people who have disputes with Centrelink; and

  • duty lawyer and outreach services at the Southport Magistrates’ Court when it hears family violence applications.

The government asserted that the cuts would not impact frontline services – and were only focused on law reform, which shouldn’t be funded when there is a budget “crisis”. But the pressure was being applied to frontline agencies, which were starting to cut staff and services.

As these cuts were starting to bite, the Abbott government soon realised that its decision to cut funding conflicted with its commitment to services and strategies to stop family violence. It used this context when announcing its backflip:

For too many years, the issue of domestic violence remained behind closed doors – a stigmatised problem that victims were reluctant to speak about. Sadly, as a nation we were reluctant or afraid to speak about it.

With more victims speaking out about this scourge and seeking help to escape such violence, we are responding accordingly with appropriate resourcing. The government has listened and is acting in the interests of the most vulnerable in our community including Indigenous Australians.

More change (and money) is needed

While reversing cuts is a necessary start, it is also vital that more funding be provided for legal assistance services. The Productivity Commission called for an additional A$200 million for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped to deal with, legal disputes”.

In justifying its unusual call for this significant funding injection, the commission’s report found:

… numerous studies show that efficient government-funded legal services generate net benefit to the community.

As I have previously written, the commission made other sensible suggestions. These included:

  • “unbundling” legal services;

  • better co-ordinating pro bono services, recognising that these contribute less than 3% of legal assistance services required;

  • investigating the appropriateness and effectiveness of family dispute resolution schemes;

  • funding strategic advocacy and law reform activities that seek to identify and remedy systemic issues and so reduce demand for frontline services;

  • making eligibility principles for grants of legal aid consistent; and

  • improving the collection and communication of data and evaluation.

The government is currently consulting stakeholders on reforming the legal assistance services industry. It has an entirely unrealistic target of implementing these changes by July this year. These changes will require new agreements to be negotiated with all states and territories and more than 200 service providers in seven weeks after the budget.

Rather than rushing implementation, the government should partner with service providers and other stakeholders to develop changes that are evidence-based, transparent and effective, and commit to properly resourcing this important work.

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