As the Government and legal profession argue over who is to blame for the underfunding of legal aid, a growing number of Australians charged with serious crimes are finding they have no option but to represent themselves. Leanne Mezrani reports.

Politicians love figures that illustrate why they are better than their political opponents – even when the issue will do little to boost their popularity, like giving money to lawyers who represent criminals.

Attorney-General Nicola Roxon recently patted her party on the back for investing more than $1.3 billion in legal assistance funding and, in the same breath, criticised the Howard government for cutting back funding to this sector.

In 1997, former prime minister John Howard reduced Commonwealth expenditure on legal aid by $120 million over four years. Roxon claims the system is still recovering.

Others say the Labor Government isn’t doing enough.

Earlier this year, Catherine Gale, president of the Law Council of Australia (LCA), slammed the Labor Government’s 2012 Federal Budget for failing to address the “chronic” shortage in legal aid funding. Then, in September, Gale criticised the Attorney-General’s $1.6 million one-off funding boost for legal aid as being too modest and claimed the Commonwealth’s 34 per cent contribution to the total legal aid budget is inadequate.

“Funding shortfalls have forced legal aid commissions in some jurisdictions to tighten eligibility for legal aid to such an extent that many people who are living below the Henderson poverty line are unable to receive legal aid assistance,” Gale told Lawyers Weekly.

Her comments are supported by an Australian Council of Social Service survey, which found a record 11,693 people presenting to community legal services for help were turned away over the past year. The survey also discovered that around 73 per cent of community legal centres in Australia aren’t able to meet demand for their services.

While the Federal Government and industry bodies acknowledge that legal aid is underfunded, neither appears terribly proactive about spearheading a solution.

Roxon, in a speech to the National Association of Community Legal Centres in September,  put the onus on the legal profession to assist those who can’t afford, or are unable to access, legal assistance services. “I am arguing that private sector can, and indeed should, do more to help those needing legal assistance,” she said.

No fund

Australian Lawyers Alliance (ALA) president Tony Kerin says the profession has done more than its fair share by providing legal services at legal aid rates. He argues that responsibility to fund legal aid lies firmly with the Government, particularly as the legal profession does not have the necessary skills to address complex funding issues, an area he believes is familiar terrain for federal and state government politicians.

“The problem has to be front and centre for governments ... they have to come up with the solution,” he adds.
State government politicians are also on the Queensland Law Society’s (QLS) blame list. QLS CEO Noela L’Estrange says Premier Campbell Newman’s withdrawal of state government funding for the Environmental Defenders Office and cuts to a Special Circumstances Court program for criminal matters are “reckless, short-sighted and dangerous ... an extraordinary move, even for a government desperate to save money”.

“It’s been proven that reducing access to justice for criminal matters only pushes people into jail, which comes at an expense much higher than the cost of legal services,” she says.

To illustrate her point, L’Estrange refers to the Sisters Inside program, which helps disadvantaged women appear before the Special Circumstances Court. She claims that the Government thinks it has saved $115,000 by cutting funding for the program when, in reality, it could end up spending more than $18 million for corrective services. These figures are based on Queensland Corrective Services’ projected costs, which take into account that 240 offenders were successfully diverted from prison through the program as of 2010.

Even with these compelling figures, convincing politicians to address legal aid underfunding is a tough sell, says Brian McGowran, principal solicitor of McGowran Lawyers in Rockhampton, Queensland, who points out that the issue “is not a vote winner”.

“It’s hard to get voted into parliament by saying you want more money to represent criminals,” he explains.
McGowran, whose practice includes a large proportion of legal aid work, urges politicians to consider the ripple effects of underfunding, including a growing number of Australians facing “serious jail time” being turned away from legal aid and forced to self-represent.

“Some consequences of cutbacks that are so stark it’s unbelievable,” he says.

Just 10 minutes before speaking with Lawyers Weekly, McGowran advised a client to plead not guilty to a charge for which she will face jail time if found guilty. He explains that, due to resource constraints, legal aid would only have represented the woman if she pleaded guilty. If she pleaded not guilty she would have had to self-represent.

When Lawyers Weekly asked legal aid commissions across Australia to comment on resourcing challenges, the common and only message provided was: “we are trying to make the best of limited resources”. Understandably, they are reluctant to participate in the blame game and inadvertently bite the hand that funds them.

Facing the factsheets

In Victoria, a number of measures have been introduced by Victoria Legal Aid (VLA) to “manage [its] finances responsibly, effectively and appropriately”. An ongoing initiative is the review and refinement of panel processes.
VLA could not comment on the initiative, which is currently in the consultation phase with the legal sector, but a spokesperson did reveal in a statement that the review’s aim is to inform the development of clear panel entry requirements, practice standards and processes for firms and practitioners undertaking legal aid work.

Another VLA attempt to stretch its resources a little bit further is the introduction of a new approach to providing summary crime duty lawyer services. Those facing the most serious charges, and those with complex needs (e.g. intellectual disability), will be prioritised in the Magistrates’ Court. If an accused does not meet the means’ test or priority criteria, they may simply be offered a factsheet about the offence and what happens in court.

McGowran, who worked for legal aid in Darwin and Brisbane from 1996 to 2005, cautions that the use of self-representation kits, like factsheets, don’t adequately prepare defendants for a court appearance.

“It’s like telling someone how to be a prop forward by saying: ‘here’s a brochure ... now get out there in front of those Kiwis, line up and smack ’em’,” he says.

“[Legal aid kits] can’t prepare you for the stress and the difficulty of the experience ... and people under stress don’t make very good decisions.”

Country blues

When it comes to pains associated with limited legal aid resources, country areas are doing it exceptionally tough, says McGowran, who recently provided input to a submission by the Central Queensland Law Society on poor service delivery in the region.

Compounding the problem is the growing number of private practices pulling out of doing legal aid work in country areas. McGowran points out that just three years ago around nine firms were doing legal aid work in Rockhampton and nearby Yeppoon. “Rumour has it that number will be down to three next year,” he reveals.

“Lawyers are voting with their feet ... there’s not enough legal aid work around; there’s no money in it; some are struggling to make billing targets, the money pool is shrinking and it’s going to be easier for many to quit and do something else.”

Struggling to retain lawyers in regional areas is a problem that covers all areas of practice. But what differentiates criminal lawyers are their motives for leaving, according to McGowran. In his firm, criminal lawyers are “thrown in the deep end”, taking valuable practical experience gained in the country to better-paying jobs in the city.

Early exposure to a reasonable volume and variety of work also seems to be the experience of most graduates from the University of Wollongong’s criminal law program, which includes Australia’s only post-graduate qualification in criminal prosecutions.

“The reality is that the workload associated with the Department of Public Prosecutions (DPP) and legal aid is significant and resources are always limited, so graduates are stepping into an environment where they have to hit the ground running,” says Professor Luke McNamara, the university’s law school dean.

For this reason, the program has a strong emphasis on experiential learning, including internships in the office of a private practitioner or the DPP. But McNamara is quick to point out that the internships are “rigorous and well thought through ...  beyond the traditional notion of work experience where a young person comes in to observe and make coffee”.

He credits organisations like the DPP and legal aid, which have been “the biggest and most consistent supporters of our internship program”, for developing an approach to hosting interns that is mutually beneficial.

For the ambitious students who choose advanced subjects, the university offers an exploration of the many contexts in which criminal law applies outside the traditional terrain of crimes of property and personal violence.

“Criminal law practice permeates beyond those boundaries and is being pursued in both private law firms and a diverse range of government agencies and regulatory bodies,” he says, providing environmental protection and occupational health and safety as examples.

This adds to the complexity of criminal law, McNamara continues, which now requires graduates to gain skills that will assist them in interpreting legislation for a variety of settings.

Kerin also says criminal law is becoming more complex, but blames “well-meaning politicians” who have introduced unnecessary legislation.

“Politicians are creating a complex world of criminal law, with many laws that are not well founded making legal practice and application very difficult,” he says.

He adds that this is a worrying trend that has resulted in the enactment of laws that remove rights, such as NSW Premier Barry O’Farrell’s eradication of the right to silence, which Kerin says was “a sad day for justice in Australia”.
University students are also voicing concerns over rights violations, particularly in the international context, claims McNamara.

Recent press coverage of Australian lawyer Melinda Taylor’s detainment and subsequent release by Libyan authorities after meeting with Muammar Gaddafi’s son Saif al-Islam has not deterred graduates, but simply highlighted how they can “combine a deep commitment to human rights and humanitarianism with their skills as criminal law practitioners” by working for bodies like the International Criminal Court, he adds.

But their attention may soon turn to domestic issues, with legal aid underfunding becoming an increasingly hot topic politically and within the legal industry, driven by figures that support claims that the problem is chronic.