Access to justice is a foundational principle of the rule of law and is often phrased as requiring “the right of equal access to justice for all” through governments providing “fair, transparent, effective, non-discriminatory and accountable services.” In Australia, this principle was described in Dietrich v. The Queen as “the equal justice for all principle.”
Legal Aid is an example of an organization created to make access to justice more equitable by providing legal services to those who cannot otherwise afford it. It is a government funded organization providing free legal advice and representation. Funding for Legal Aid differs between jurisdictions in Australia. In New South Wales, funding comes from both the Commonwealth Government and the State Government, though the majority comes from the State Government.
Given Australia has an adversarial system of justice, Legal Aid is incredibly important in ensuring that there is an equal playing field for the parties. Legal Aid allows those without financial means to receive proper legal advice and representation. Legal Aid employs its own solicitors and funds private solicitors and barristers to assist in providing legal advice and representation. Legal Aid New South Wales (LA NSW) reported that in 2022, it represented over 37,000 clients, 26,000 of whom were represented by private lawyers. A high percentage of these clients are First Nations people, people with disabilities and people from disadvantaged backgrounds. In a recent paper Annmarie Lumsden, CEO of the Northern Territory Legal Aid Commission, noted that across Australia, the “Legal Aid Commissions provide over 1.5 million instances of legal assistance a year and are the main providers of legal advice and representation for people experiencing disadvantage in Australia.”
A recent report from PriceWaterhouseCoopers, commissioned by National Legal Aid, concluded that the provision of legal aid delivers $600 million in savings to the public and government. The report highlights the critical need for funding amid increased demand for services. Further, the report, which was presented on February 17 by Lumsden, found every $1 invested in Legal Aid services delivered an equivalent benefit of $2.25.
While private lawyers appearing for legally aided clients are conscious of the public service they are providing, they still expect to be paid, albeit at a lower than commercial rate. In NSW, more than 50% of all criminal cases are funded by Legal Aid. Approximately 70% of those cases are represented by private lawyers. It is therefore essential that there is enough incentive for graduating lawyers to view criminal law as a financially viable career option.
In Milat v. The Queen the High Court held the Legal Aid Commission Act (the Act) entitles LA NSW to determine the fee rate that it pays to private practitioners undertaking Legal Aid work. However, §32 of the Act also requires LA NSW to consult with the New South Wales Bar Association (NSW BA) when making those determinations.
Funding issues with Legal Aid have increased over the years, leading to the legal community raising serious concerns. Despite increases in funding in other areas of the criminal justice system, such as policing, prosecuting services, community corrections, and corrective services, the minimal increases in legal aid rates in NSW over the last decade have seen it fail to keep pace with these other areas or with the Consumer Price Index.
The hourly rates and daily rates paid to private lawyers by LA NSW, in general, represent less than a third of private lawyers’ usual rates. Additionally, a large disparity exists between rates paid to Crown Solicitors and the rates paid by Legal Aid to private lawyers. Further, the hours allocated by Legal Aid to complete a particular task often do not reflect the actual work undertaken by the practitioner with the result being the further diminution of the real hourly rate. For example, LA NSW’s estimate of hours spent on case management for a non-complex trial (i.e., drafting documents, motions, affidavits, agreed facts, readiness hearings, case conference) was 4 hours, as opposed to the NSW Bar Association, whose conservative estimate was 13 hours. All of this has caused an ongoing debate between LA NSW and the NSW Bar over what would represent fair compensation to lawyers appearing for legally aided clients and what is affordable within the Legal Aid budget.
The United Kingdom paints a graphic picture of why change is urgently required in NSW. The Bellamy Report, handed down in November 2021, was an independent review of the criminal legal aid system in the UK. It noted a number of key issues around funding:
– The fixed fee for services provided at police stations were set in 2008 and have not been increased since.
– Fees set for court appearances were cut by 8.5% in 2014 and a further 8.5% in 2015.
– Fees have not increased in 20 years, which represents a fall in real terms of 42% since 1997, with lawyers now being paid less than they were in 1997 for legally aided work.
Funding cuts and stagnant rates have had serious consequences for the criminal justice system in the United Kingdom. Following concerns in 2018 that the lack of defence lawyers would result in the extinction of these lawyers within 5 to 10 years, the UK conducted a survey of law students in 2019. The overwhelming majority stated they would not enter criminal defence practice because it was not a financially viable career option.
The Bellamy report also noted that, because of inadequate funding, lawyers in the UK are unable to properly prepare matters. They are also taking on a higher volume of work to survive. This reduces the quality of the representation and raises significant concerns for access to justice.
Following the release of this report, criminal barristers in the UK, on several occasions, engaged in industrial action, citing their concerns over funding.
Based on the findings, the Bellamy report recommended an immediate initial increase in funding of 15% as a bare minimum to prevent the collapse of the criminal justice system in the UK. The government, however, announced it would increase the funding by only 11%. The Law Society responded on January 12, stating it would consider judicial review if the government did not amend this decision.
The Bellamy report also recommended introducing a system similar to the Early Appropriate Guilty Plea Scheme (EAGP), which has operated in NSW since 2018. This is a statutory regime and refers to legislation applicable to all indictable offences. It is to encourage pleas of guilty while cases are still in the early management stage, with the intended result being a reduction in the backlog and congestion of cases awaiting trial.
The EAGP scheme rewards the offender with a larger discount the earlier the plea. It was introduced in response to the Law Reform Commission’s finding that lawyers enter around a quarter of guilty pleas on the day of trial. The system requires a Case Conference between a senior lawyer for both parties at an early stage in the prosecution process. The theory is that this allows for proper analysis of the case and sound legal advice. In turn, this should result in lawyers entering pleas earlier, reducing time and costs.
Following its introduction in NSW, the EAGP saw a positive increase in the fees for pre-trial preparation and negotiation for barristers with the view of rationalizing and expediting trial matters. However, practitioners are now finding issues with the EAGP. One issue involves a recently reported practice of the ODPP not briefing Crown prosecutors, but instead trial advocates or solicitors, to appear at the Case Conference. In response, and seemingly in parity, LA NSW is not funding barristers to appear at the Conferences. This jeopardizes the effective operation of the system and its intended role. The issue appears to be a budgetary one.
While many of the issues highlighted in the Bellamy Report are either not relevant or not as dire in New South Wales (for example, due to a difference between the UK and NSW law regarding the cautioning of suspects, NSW does not require by law publicly funded solicitors be present or available at police stations), many of the other concerns are still apposite.
James Trevallion, the co-chair of the NSW Bar Association’s Legal Aid Committee, notes the Association has already recognized a number of the same concerns in NSW as were raised in the Bellamy Report. Of particular concern are:
– Insufficient private practitioners interested in the type or location of work
– Practitioners “loading up” cases to make work viable
– Juniorisation of work
– Potential gaps in the profession in the future because reduction in criminal law work for the junior bar means fewer senior barristers in future.
The justice system depends on justice actually being done, and a lack of expertise in the criminal justice system has the potential to result in significant miscarriages of justice. This damages the reputation of the justice system and reduces the public’s trust.
The solution to the issues outlined above requires an increase in the Legal Aid budget, with funds specifically allocated to fairly compensate private lawyers. The alternative risks an increasingly inequitable representation for marginalized and vulnerable people charged with serious criminal offences.
Sophia Richards is a fourth-year law student at the University of Newcastle, Australia, and is a research assistant for a criminal barrister. James Trevallion is a barrister who has been practising at the NSW private Bar for the last 22 years and is currently the co-chair of the Bar Associations Legal Aid Committee.
Suggested citation: Sophia Richards and James Trevallion, The Impact of Stagnant Legal Aid Rates on Access to Justice in Australia, JURIST – Student Commentary, May 8, 2023, https://www.jurist.org/commentary/2023/05/richards-trevallion-legal-aid-rates-australia/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
