Access to legal assistance services Submission to the Senate Finance and Administration Committee

TRIM no 2014/653104

Submission to the Senate inquiry – Access to legal assistance services

Introduction

Legal Aid (LAQ) welcomes the opportunity to make a submission to the Finance and Public Administration References Committee inquiry into Access to legal assistance services.

LAQ is a statutory agency established under the Legal Aid Queensland Act 1997 that provides legal assistance services to financially disadvantaged people in Queensland.

LAQ is funded by both State and Commonwealth governments under the National Partnership Agreement on Legal Assistance Services. Other legal assistance service providers in Queensland funded under the National Partnership Agreement include the Aboriginal and Islander Legal Service (Qld) Ltd (ATSILS), community legal centres and Family Violence Prevention Legal Services. All of these services provide legal assistance services to Aboriginal and Torres Strait Islander people.

There have been many previous inquiries into issues relating to the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system that have explored the many causes of Indigenous disadvantage in our community that lead to their involvement in the justice system. In the interests of brevity, rather than repeat the findings and recommendations of these inquiries, we assume that the committee will be considering those inquiries and their reports under its terms of reference.

LAQ will be limiting its submission to addressing the first two terms of reference of the inquiry.

a. The extent to which Aboriginal and Torres Strait Islander Australians have access to legal assistance services

LAQ’s services

LAQ is committed to providing services to Aboriginal and Torres Strait Islander people. Indigenous people can access all of LAQ’s services subject to meeting our means and merits tests. During 2013-14, LAQ services specifically targeting Aboriginal and Torres Strait Islander people included:

• Providing funding to support the ATSILS to provide duty lawyer services in and communities • Funding outlays in legal matters such as counsel for ATSILS clients in criminal law and other matters • Promoting our Indigenous Information Hotline, which gives priority to Aboriginal and Torres Strait Islander callers so they can access legal information and advice for the cost of a local call from a landline anywhere in Queensland • Providing outreach services in Aurukun, , , Charleville, Cooktown, Cunnamulla, Dirranbandi, Doomadgee, Goondiwindi, , Mapoon, Miles, Mossman, Napranum, New Mapoon, Normanton, Palm Island, Ravenshoe, Roma, Seisia, St George, Tara, , Tully, Umagico, and to help ensure Indigenous clients in these areas can access free face-to-face legal advices • Hosting a workshop by Dr Diana Eades titled, “Telling and retelling your story: implications for working with Indigenous clients” for solicitors and barristers to examine cultural and communication issues for Aboriginal people in legal settings • Holding an information staff at the Musgrave Park Family Fun Day event in during NAIDOC Week

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Submission to the Senate inquiry – Access to legal assistance services

• Maintaining best practice guidelines for in-house and private lawyers performing legal aid work to ensure legal services are provided to Aboriginal and Torres Strait Islander clients in a culturally appropriate way • Publishing legal information brochures, factsheets, wallet cards and posters that specifically target Aboriginal and Torres Strait Islander people.

Services to Aboriginal and Torres Strait Islander people

Aboriginal and Torres Strait Islander clients receive a significant proportion of LAQ services as can be seen from Figure 1 below. Our highest percentage of service provision to Aboriginal and Torres Strait Islander people is in the area of grants of aid for legal representation in criminal law matters. In the last financial year 16.06 percent of our grants of aid in criminal law matters were to Aboriginal and Torres Strait Islander people.

Figure 1 Percentage of LAQ services provided to Aboriginal and Torres Strait Islander people, 2013-14

Criminal% Family% Civil% Total%

Legal advice 5.57 4.19 4.97 4.84

Applications received 14.98 8.19 9.78 12.17

Applications approved 16.06 8.60 11.47 13.57

Relationship with the ATSILS

LAQ has a close working relationship with the ATSILS in Queensland. The senior managers of our organisations meet on a regular basis to discuss service and policy issues to ensure appropriate service coverage across Queensland so that disadvantaged Queenslanders have access to necessary legal assistance services.

The ATSILS have an enormous service delivery challenge to provide legal assistance services to Aboriginal and Torres Strait Islander people across Queensland. Many live in regional and remote areas of Queensland that are difficult to physically access. Many of their clients are the most socially disadvantaged and vulnerable in our community and have multiple social, health and legal problems. Due to their disadvantage, Aboriginal and Torres Strait Islander people pose particular service challenges as a client group. The ATSILS in Queensland is led by a professional and experienced management team which has the respect and confidence of other legal assistance agencies. The ATSILS are well-positioned to provide appropriate and responsive legal services to Aboriginal and Torres Strait Islander people in Queensland.

LAQ’s Criminal Law Duty Lawyer Service provides a good example of the cooperative working relationship between LAQ and the ATSILS. The Criminal Law Duty Lawyer Service operates in magistrates and childrens courts across Queensland. The service offers free initial legal advice and representation to people charged with criminal and some traffic offences, who are on bail or in custody. Duty lawyers can enter guilty pleas,

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Submission to the Senate inquiry – Access to legal assistance services

make bail applications or request remands for clients. In 2013-14, our criminal law duty lawyers represented 77, 738 children and adults before the courts.

Under LAQ’s service arrangements with the ATSILS, criminal law duty lawyer services are offered in magistrates and childrens courts in 114 locations across Queensland. In 40 of those locations, in mainly remote areas, LAQ relies soley on the ATSILS to provide the duty lawyer service. LAQ also provides reciprocal arrangements in the courts where we provide services when ATSILS are unable to provide a lawyer.

We also have arrangements with the ATILS to take referrals of clients when they have a conflict and provide financial assistance for them to provide duty lawyer services in Gulf and Cape communities and to fund disbursements for outlays for counsel and other expenses in criminal matters.

b. the adequacy of resources provided to Aboriginal legal assistance services by state, territory and Commonwealth governments

The Australian Indigenous Legal Needs Project

Over the past several years National Legal Aid and individual legal aid commissions across Australia contributed to funding the Australian Indigenous Legal Needs Project, which researched the legal needs of Indigenous people across Australia. The project was also supported by an Australian Research Council grant. The product of this research has been a series of jurisdictional reports on the civil and family law needs of Indigenous people. We would recommend the Queensland report to the committee titled, The civil and family law needs of Indigenous people in Queensland, by Chris Cunneen, Fiona Allison and Melanie Schwartz from James Cook University.

A key finding of the report in relation to legal service delivery found:

There are significant gaps in legal service delivery in terms of capacity to meet this need, and this is in large part due to under-resourcing of the legal assistance sector. More funding is required, with priority given to Indigenous legal services as primary providers of legal assistance to Indigenous people for further resourcing, including so as to enable ATSILS to expand its current focus on criminal law work to include more emphasis on civil and family law matters. Indigenous people need to have a choice of services, however, and for this and other reasons non-Indigenous services also need more funding so as to better assist Indigenous people with civil/family law issues. (p. 14)

Productivity Commission report into access to justice arrangements

In its report Access to Justice Arrangements (report No. 72 released in September 2014) the Productivity Commission recommended that in the short-term significant funding is needed to address the most pressing legal service gaps:

Legal assistance funding for civil matters has not kept pace with increasing costs and demand. Accordingly, there has been a growing ‘justice gap’ for the disadvantaged…A recent review of legal assistance found: Current arrangements do not equip legal aid commissions to provide grants of legal aid to all disadvantaged clients in all matters within stated service priorities …

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Submission to the Senate inquiry – Access to legal assistance services

The nature of matters that fall in the gap is particularly concerning. Assistance with family law matters, including domestic violence and care and protection of children, is not comprehensive in its coverage. The Commission finds the gap in independent lawyer services for children especially worrying. Other gaps in civil law assistance, such as employment and tenancy law, can also have serious consequences.

The present means tests used by the LACs are restrictive, reflecting the limited funds available. The income tests are below many established measures of relative poverty. It is not the case that people are ‘too wealthy’ to be eligible for legal assistance, but rather that they are ‘not sufficiently impoverished’.

There is overwhelming qualitative evidence that narrowing the gap would be socially and economically justified. However, the costs to society, and the benefits of closing the gap, are difficult to measure quantitatively … the Commission has instead used an approach that derives funding by comparing the current reach of services against what it judges to be reasonable benchmarks (such as poverty and legal need).

The Commission has estimated that additional funding from the Australian and state and territory governments of around $200 million a year is needed to:

• better align the means test used by LACs with other measures of disadvantage • maintain existing frontline services that have a demonstrated benefit to the community • allow legal assistance providers to offer a greater number of services in areas of law that have not previously attracted funding.

Advocating for increases in funding (however modest) in a time of fiscal tightening is challenging. However, not providing legal assistance in these instances can be a false economy as the costs of unresolved problems are often shifted to other areas of government spending such as health care, housing and child protection. Numerous Australian and overseas studies show that there are net public benefits from legal assistance expenditure. As former Chief Justice Gleeson commented: The expense which governments incur in funding legal aid is obvious and measurable. What is not so obvious, and not so easily measurable, but what is real and substantial, is the cost of the delay, disruption and inefficiency, which results from absence or denial of legal representation. Much of that cost is also borne, directly or indirectly, by governments. Providing legal aid is costly. So is not providing legal aid. (Law Council of Australia, sub. 96, p. 114, quoting State of Judicature, speech delivered at the Australian Legal Convention, 10 October 1999) (p. 30-31 Inquiry report overview)

LAQ commends the Productivity Commission report to the committee.

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