Federal Attorney-General Robert McClelland has hinted at a revamp of the Rudd Government’s legal aid funding regime.
In particular McClelland, speaking at the National Association of Community Legal Centres Conference last week, said he was reviewing the current policy under which Commonwealth legal aid funds could be used only for Commonwealth matters. McClelland said he realised that this policy, which was introduced in 1996 by the Howard government, had created “some artificial barriers to justice”.
Hugh de Kretser, the executive officer of the Federation of Community Legal Centres (Victoria), believes that the Commonwealth-state distinction has created significant problems, particularly in family law matters that often involve both state and Commonwealth issues.
He said that issues falling under the Commonwealth Family Law Act — such as divorce — could be funded by Commonwealth legal aid, but the Commonwealth would not fund related state-based issues such as domestic violence and child protection actions.
“So you get this arbitrary distinction [where the Federal Government says] ‘Well, we are only going to pay for the custody and property issues, but we’re not going to pay for the related family violence or child protection’,” de Kretser said.
Hamish Gilmore, the chair of National Legal Aid and director of the Legal Services Commission of South Australia, agreed that this distinction had added extra complexity to family disputes and need reform.
“We would like to see that rather than artificially separating funding between Commonwealth and state family law matters, we could use [Commonwealth funding] in a more general way so that the whole family disintegration can be handled — at least at the legal aid level — in one matter,” Gilmore said.
As well as family law matters, civil law matters — which are state-based — have also been significantly affected by the distinction, de Kretser said.
He explained that when the policy was introduced, Legal Aid had to refocus their expenditure so that the bulk of their Commonwealth funding went towards family law matters, and state funding towards criminal law matters.
The result, he said, was a dramatic reduction in funding available for civil law actions. Accordingly, community legal centres — non-government organisations to which the Commonwealth-state distinction did not apply — were inundated by civil law matters.
“We’re basically left to fill the gap in the justice system, so the underfunding of civil matters for legal aid has an impact on community legal centres and we support Legal Aid and their calls for funding,” de Kretser said.
He said that civil law matters now make up about 60 per cent of the work that community legal centres do, however they don’t have the necessary resources to provide sufficient legal advice or representation.
“It’s very hard for us to take on a large number of matters and to represent people in court, de Kretser said. “There needs to be a drastic increase in funding for civil law matters through community legal centres and Legal Aid because at the moment [people’s] rights are being rendered meaningless by the fact that they can’t actually get the assistance to pursue them.”
Gilmore concurred: “[Community legal centres] have very limited resources. They can’t hire you a lawyer to fight your builder or your secondhand car dealer or whatever, so there are great gaps in the system at the moment because of this federal-state divide,” he said. “The untapped need out there for civil help is enormous.”
McClelland is currently reviewing the Commonwealth legal aid funding policy, and the issue is on the agenda of the next meeting of the Standing Committee of Attorneys-General in November.
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