Plans To Cut The 'horrendous' Cost Of Justice

The Sunday Age

Sunday August 17, 2008

Josh Gordon, Melissa Fyfe

MIDDLE Australia is being pushed out of the justice system by soaring court costs and a diminished legal aid system, federal Attorney-General Robert McClelland has warned.

Signalling a major overhaul of the courts and legal aid, Mr McClelland said Australia was facing a profound "emerging tension", with the bulk of middle-income earners unable to afford litigation.

In an interview with The Sunday Age, he said justice was now available only for the "very wealthy" or those on lower incomes who could access legal aid.

"If you are a middle-income-earning Australian, as the bulk of us are, the prospect of any substantial litigation is horrendous, because of the cost," Mr McClelland said. "You are literally risking your house for any substantial litigation and we've got to ensure that we maintain access to the courts by middle Australians."

He said the rule of law was only relevant "to the extent to which all people have reasonable access to address their grievances", warning it would be unfortunate if Australia were to go down the American path, with costly speculative cases bogging the courts and leading to soaring insurance costs.

The Federal Government has been negotiating with the states on an overhaul of legal aid funding. The Sunday Age understands it is almost certain to involve abandoning a rule where Commonwealth funds can only be used to fight federal cases.

In particular, the Government wants Commonwealth funds available to help families and children embroiled in cases before state courts, particularly those involving child protection and family violence.

Laws introduced by the Howard government mean that Commonwealth legal aid money cannot be used in cases involving child protection agencies or departments of community services, placing a huge additional burden on the states.

The case for an overhaul will be outlined in a speech by Mr McClelland to be delivered to the National Association of Community Legal Centres tomorrow. The speech, given to The Sunday Age, says the policy of restricting Commonwealth legal aid funds to Commonwealth matters has created "artificial barriers to justice".

Victorian Attorney-General Rob Hulls said the Commonwealth's contribution to Victoria Legal Aid was a "debacle".

He said it was pleasing that the Federal Government had acknowledged the justice system "should not just be the fiefdom of large corporations". The cost of justice has to be urgently addressed, he said.

Mr Hulls said the Brumby Government believed the answer to a cheaper justice system was using courts "as an absolute last resort". In this year's state budget, the Government significantly boosted funds for alternative dispute resolution - where parties try to solve their differences before starting litigation.

The Federal Government is also keen to pursue cutting of court costs through dispute resolution, and by improving court administration.

Mr McClelland said there was also "a very strong case" for additional Commonwealth funding for legal aid and the community legal sector, with the states now shouldering a larger proportion of legal aid funding than the Commonwealth, a reversal of the situation 12 years ago.

Australia's legal aid system has been gradually whittled down over the past decade through funding cuts and spending restrictions. After a $17 million one-off funding boost, legal aid received $178 million from the Federal Government last financial year. This year, with the absence of the one-off payment, the figure is expected to be $164 million, less than half the estimated $331 million chipped in by the states.

Victoria Legal Aid has left 10 vacant job positions unfilled and will review future vacancies after being hit with funding problems on two fronts.

The economic downturn and property market decline has skimmed $4 million from the Public Purposes Fund, which holds the interest on solicitors' trust accounts.

Also, the Commonwealth's contribution, which has left the state with less legal aid funding per capita than any other state, is not enough to continue services at current levels, said Bevan Warner, managing director of Victoria Legal Aid.

© 2008 The Sunday Age

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