¹ A recent research report listed twenty-one “changes” that are relevant to legal aid in Australia. Dewar, J., Giddings, J. & Parker, S., The Impact of Changes in Legal Aid on Criminal and Family Law Practice in Queensland (1998)Google Scholar

² For a detailed discussion and evaluation of the various legal aid schemes operating in the early 1970's see Sackville, R., Legal Aid in Australia (1975)Google Scholar.

³ Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2802 (Lionel Murphy, Attorney-General).

⁴ For a short history of Commonwealth involvement in legal aid see: Access to Justice Advisory Committee, Access to Justice– an action plan (1994) at228 and for more detail see: National Legal Aid Advisory Committee, Legal Aid for the Australian Community (1990), Chapter 3.

⁵ Legal Aid Ordinance 1977 (ACT); Legal Services Commission Act 1977 (SA); Legal Aid Commission Act 1977 (WA); Legal Aid Act 1978 (Qld); Legal Aid Act 1978 (Vic); Legal Aid Commission Act 1979 (NSW). It was ten more years before the Northern Territory and Tasmania formed commissions– Northern Territory Legal Aid Act 1990 (NT); and Legal Aid Commission Act 1990 (Tas)

⁶ For a more detailed discussion of the financial and regulatory structure of legal aid see Access to Justice Advisory Committee, n.4, p 231

⁷ National Legal Aid Advisory Committee, n 4 pp 36-37

⁸ Access to Justice Advisory Committee, Access to Justice: an Action Plan Canberra 1994 at230

⁹ National Legal Aid Advisory Committee, n. 4 at pp xvii - xix

¹⁰ For a discussion of the history of Aboriginal Legal Services see M, Chapman, “Aboriginal Legal Service– A Black Perspective” in Neal, D., (Ed) On Tap, not on Top - Legal Centres in Australia 1972-1982 (1984) at 35Google Scholar and Lyons, G., “Aboriginal Legal Services” in Hanks, P. & Keon-Cohen, B.(eds), Aborigines and the Law (1984)Google Scholar.

¹¹ For a discussion of the history of Community Legal Centres see Basten J., Graycar, R. & Neal, D., “Legal Centres in Australia” (1983) 6 UNSWLJ 163 and Neal, D., “Ten Years After– the Victorian Centres” in Neal, D. (Ed), n. 10

¹² Noone, M.A., “Community Legal Centres– a mid-life crisis” (1997) 22 Alternative Law Journal 25Google Scholar

¹³ Senate Legal and Constitutional References Committee, Inquiry into the Australian Legal Aid System - Third Report, June 1998, Chapter Eight - The Changing Legal Aid Community at 131

¹⁴ For a discussion of the policy issues related to this change see Fleming, D., “Australian Legal Aid under the first Howard Government” in O'Reilly, J., Paterson, A. & Pue, W. (Eds), Legal Aid in the New Millennium (1999)Google Scholar.

¹⁵ Attorney-General's Department, Renegotiation of the Commonwealth-/Territory Legal Aid Agreement's - Discussion paper (1996) at 1

¹⁶ For the actual amounts paid see table in Senate Legal and Constitutional References Committee n 13, p 5

¹⁷ D, Williams, Law and Justice for Australians-1997-98 Budget, Press Release, No 20 (August 1996)Google Scholar Attachment 3.

¹⁸ Reynolds, S., “Contracting for Chaos” (1997) 22(1) Alternative Law Journal 22 at 23Google Scholar

¹⁹ Attorney General's Department, n 15, p 3.

²⁰ Ibid at 4. See generally the discussion below.

²¹ National Legal Aid Advisory Committee n.4

²² At the time of writing a new set of agreements are being negotiated with the States and Territories for the period 2000- 2004. The Commonwealth is making available an additional $63 million dollars over this four year period. Williams, D., More Money for Legal Aid, Press Release No. 15 (December 1999)Google Scholar

²³ Senate Legal and Constitutional References Committee, n 13 at Appendix 5 - table setting out the differences in agreements.

²⁴ Ibid at 4

²⁵ Attorney General's Department, n 15, at 7ff

²⁶ Corporatisation “requires that government activities that are commercial in their nature are made to work under conditions that approximate to those of their private sector counterparts and occasionally their competitors”: Davis, G., Wanna, J., Warhurst, J. & Weller, P., Public Policy in Australia (1993) at 119Google Scholar

²⁷ Such as the Crimes Compensation Unit at Legal Aid Commission NSW which operates on “a no win no fee” system.

²⁸ Section 12M Legal Aid Act 1978 (Vic) gives the Attorney-General power to direct VLA in relation to the performance of its functions or exercise of its duties and any policies, priorities or guidelines of VLA. Although the Act prevents the Attorney General from interfering with individual grants of legal aid, the power to direct enables the AG to order that certain classes of individuals should or should not get legal aid, to the exclusion of others. This amendment gives the Attorney General the power to limit the availability of legal aid in particular types of cases and to particular groups of people. See section 63 Legal Aid Queensland Act 1997 (Qld).

²⁹ For more detail on the lead up to this review see Giddings, J. Legal Aid in Victoria: at the crossroads again (1998) Ch.3. Similar reviews were undertaken in other states but none precipitated the significant changes that occurred in Victoria. It was the alteration in the Commonwealth/State relationships that brought about significant structural changes in the other states.

³⁰ Cooper, D., Review of the Delivery of Legal Aid Services in Victoria (1994)Google Scholar.

³¹ Alford, J. & O'Neill, D. (Eds), The Contract State; Public Management and the Kennett Government (1994) at 4Google Scholar.

³² Cooper, D., Review of the Delivery of Legal Aid Services in Victoria (1994), recommendation 7Google Scholar.

³³ Ibid, recommendation 6.

³⁴ The Legal Aid Commission (Amendment) Act 1995 (Vic) (the Act) received Royal Assent on 14 June 1995 and Part One came into effect on that day. The remaining sections of the Act, which contain the substantive changes, came into operation on the 14 December 1995. Section 4 of the Act amends the title of the Legal Aid Commission Act 1978 (Vic) to Legal Aid Act 1978 (Vic).

³⁵ The State Attorney General had 3 nominations.

³⁶ The Commonwealth Attorney-General had 2 nominations. However, there are no longer any Commonwealth nominees on The Board–see n.47

³⁷ s.12D(3) Legal Aid Act 1978 (Vic)

³⁸ Noone, M.A, “What the Justice Statement didn't say” (1995) 20(3) Alternative Law Journal 143Google Scholar.

³⁹ Quoted in Senate Legal and Constitutional References Committee, n 13, p 136.

⁴⁰ There were no related legislative changes in South Australia, Northern Territory, Australian Capital Territory, Tasmania or Western Australia. There have been no amendments to the Legal Aid Act 1977 (Cth).

⁴¹ Pursuant to the Legal Aid Queensland Act 1997 (Qld) which replaced the Legal Aid Act 1978 (Qld).

⁴² Legal Aid Queensland, Annual Report 1997/1998 (1998), at 6.

⁴³ Section 49 Legal Aid Queensland Act 1997 (Qld)

⁴⁴ Legal Aid Commission Amendment Act 1997 (NSW) was assented to in part on 2 July 1997. Sections 50(3) & (4), which provided or the removal of all other commissioners apart from those appointed by the Commonwealth, were not assented to although a “new” commission was appointed.

⁴⁵ “Legal Aid Bodies must remain integrated and funding be maintained” (1997) 35 (3) Law Society Journal 39 at 40Google Scholar

⁴⁶ Section 1(c) listed four purposes: (i) the altering of the composition and the method of appointing VLA Directors; (ii) replace Legal Aid Review Committees and Legal Aid Appeal Committees with Independent Reviewers; (iii) to impose limits on the total amount of payments that can be made to a practitioner: and (iv) Provide for the appointment of panels of practitioners.

⁴⁷ Section 13 of Law and Justice Legislation Amendment Act 1997 (Vic) amended s.11 of the Legal Aid Act 1978 (Vic).

⁴⁸ Section 10(1)(g) omitted by Legal Aid Amendment Act 1997 (ACT).

⁴⁹ Section 10(g) omitted by Legal Aid Commission Amendment Act 1997 (NSW).

⁵⁰ Section 72A(1)(b) Legal Aid Commission Amendment Act 1997 (NSW).

⁵¹ Section 13 of Legal Aid (Amendment) Act 1998 amended section 2(1) of Legal Aid Act 1978 (Vic).

⁵² Section 7 of Legal Aid Queensland Act 1997 (Qld).

⁵³ Section 49AA of Legal Aid Act 1978 (Vic).

⁵⁴ Section 63 Legal Aid Queensland Act 1997 (Qld).

⁵⁵ In 1994, Legal Aid Queensland adopted “Total Quality Service” as its business philosophy. In 1998 Legal Aid Queensland won the Quality in Law award which recognises achievements in quality management and best practice in the legal profession throughout Australia: Legal Aid Queensland, Annual Report 1998/99 (1999) at 8.

⁵⁶ Section 3(1) of Legal Aid Queensland Act 1997 (Qld).

⁵⁷ “Legal Aid Arrangement” is defined in section 7 of Legal Aid Queensland Act 1997 (Qld). Under such an arrangement any entity including but not limited to the State and/or Commonwealth purchases legal services from LAQ and can direct which legally assisted people will receive such services. This gives the State and Commonwealth Governments the power to direct LAQ to spend allocated funds only on cases involving their respective legislation.

⁵⁸ Various legal aid commissions have piloted “innovative” schemes. LACV conducted a “franchising” pilot in 1994. The final report of the pilot recommended that franchising be introduced and implemented in conjunction with competitive tendering in relation to summary criminal casework. Neither LACV nor its successor VLA have acted on this recommendation: see Giddings, J., “Preferred Suppliers and competitive tendering: the future of legal aid” in Giddings, J. (Ed) Legal Aid in Victoria –at the crossroads again (1998) p72-73Google Scholar.

⁵⁹ Dewar, Giddings & Parker, n 1

⁶⁰ Giddings, J, n 58, at 77-78

⁶¹ See below for further discussion.

⁶² Law Council of Australia quoted in National Legal Aid Advisory Committee, n 4, p 233-4.

⁶³ National Legal Aid Advisory Committee, n.4, p 233-5.

⁶⁴ Attorney-General's Department, n.15, at 8.

⁶⁵ The Chief Executive officer of LAQ states that the decision to introduce a preferred supplier list of legal firms who were prepared to act on behalf of legal assisted persons was made after consultation with the legal profession but the Senate Committee report suggest otherwise. Hodgins, J., “Provider Paradigm and Beyond” in O'Reilly, J., Paterson, A. & Pue, W. (Eds), Legal Aid in the New Millennium (1999) at 64Google Scholar and Senate Legal and Constitutional References Committee, n.13, p 140.

⁶⁶ Hodgins, J., n 65, p 6

⁶⁷ Ibid p 64 . For a detailed discussion of the issues involved see Giddings, J., “Legal Aid Franchising: For Thought or Production Line Legal Services?” (1996) 22 (2) Monash Law Review 344Google Scholar

⁶⁸ J, Giddings, “Legal Aid at the Crossroads again” in J, Giddings. (Ed) Legal Aid in Victoria at the crossroads again (1998) at 7Google Scholar.

⁶⁹ P, Innes. “Does legal aid have a future in Victoria?” (1998) 72(3) Law Institute Journal 10 at 11Google Scholar.

⁷⁰ Child representation is ordered by the Family Court in complex cases. Child representation is a priority under the Commonwealth Priorities and Guidelines.

⁷¹ http://www.nla.aust.net.au;http://www.vicnet.net.au/~viclegal;

http://www.legalaid.nsw.gov.au;

http:// www.legalaid.qld.gov.au ; http://www.legalaid.wa.gov.au/ ;

http://www.legalaid.canberra.net.au/

⁷² Victorian Legal Aid, Annual Report 1998/99 (1999), at 18.

⁷³ In October 1997 LAQ replaced its Telephone Information Service with the LAQ Call Centre. The Call Centre provides information on LAQ services, legal processes and referral to other community agencies for the costs of a local call anywhere within Queensland. The Call Centre training program is the first in Australia to be accredited. Upon completion staff receive a Certificate III in Legal Information Services. The LAQ Call Centre appears to be unique amongst legal aid organisations. In 1998/99, the Call Centre answered 227,191 calls with 68% calls for legal information (all incoming calls for LAQ go through the Call Centre). 12.7% of calls related to criminal law, 40.7% to family law and 46.6% to civil law. The most requested information was about: motor vehicle offences (criminal), debt (civil) and children (family). Legal Aid Queensland Annual Reports 1997/98 and 1998/99.

⁷⁴ LAQ launched its Internet site in December 1997. In November 1998 LAQ added to its site its “Information and Referral Database” to increase access to legal information. There are three LAQ information Kiosks, situated in LAQ's Brisbane, Southport and Woodridge Offices: Legal Aid Queensland Annual Report 1997/98 (1998) at 12.

⁷⁵ LAQ received funding from the Commonwealth Government to establish a network of video conferencing and Internet access sites throughout Central-West Queensland to enable rural and remote communities to access legal information and advice services. Legal Aid Queensland Annual Report 1997/98 (1998) at 8.

⁷⁶ VLA has developed a Somazone CD ROM in conjunction with the Australian Drug Foundation and the Department of Human Services. The purpose of the CD Rom is to allow young people to explore lifestyle options and make individual choices about their behaviour, while improving their knowledge of health and legal issues. Victorian Legal Aid Annual Report 1998/99 (1999) at 4.

⁷⁷ Regan, R., “Criminal Legal Aid: Does Defending Liberty Undermine Citizenship?” in R, Young. & D, Wall. (Eds) Access to Criminal Justice: Legal Aid, Lawyers and the Defence of Liberty (1996)Google Scholar

⁷⁸ Tomsen, S., “Professionalism and State Engagement: Lawyers and Legal Aid Policy in Australia in the 1970's and 1980's” (1992) 28 Australian and New Zealand Journal of Sociology 307 at 314CrossRefGoogle Scholar.

⁷⁹ Giddings, n 67, at 13.

⁸⁰ Victorian Legal Aid Annual Report 1998/99 (1999) at 13. The actual number of cases went from 10,466 in 95/96, down to 8,865 in 1996/97 and rising to 11,224 in 1998/99.

⁸¹ B, Slade. “Not Enough Lawyers Legal Aid and Civil Law Delivery” (1998) 12 Law Society Journal of New South Wales 58Google Scholar.

⁸² Australian Law Reform Commission, Managing Justice: a review of the federal civil justice system, Report No.89 (2000) Recommendation 43 at 343-348.

⁸³ See discussion below.

⁸⁴ See discussion below.

⁸⁵ For example there was no definition of “legal assistance” under the Legal Aid Act 1978 (Qld) but Section 5(1) of the Legal Aid Queensland Act 1997 (Qld) defines legal assistance to include the giving a legal service including legal advice, provided it is free or for payment of an amount that is less than the cost of giving the service. NSW inserted a similar provision, s11A, in its amending legislation-the Legal Aid Commission Amendment Act 1996 (NSW).

⁸⁶ For example at VLA the numbers of approvals dropped from 38,361 in 1995/96 to 34,743 in 1998/99 whilst the approval rating has improved from 82.58% to 84.57%. See Victoria Legal Aid, Fourth Statutory Annual Report 1998/99. p.12. For further discussion on this issue see Senate Legal and Constitutional References Committee, n13 at 18-22.

⁸⁷ For a discussion of both tests see Senate Legal and Constitutional References Committee, n 13 at 63-69.

⁸⁸ The advantages and disadvantages are discussed in detail in Senate Legal and Constitutional References Committee, n 13 at 79-95.

⁸⁹ South Australia introduced capping in 1991; Queensland in December 1996; New South Wales introduced a cap of $15,000 for family law matters in 1996 for each party where both parties were legally aided. Victoria introduced capping also in 1996 in anticipation of a shortfall of funds from the Commonwealth due to the termination of the funding agreement. In Family law the fee ceiling was $15,000 for existing grants of assistance and $10,000 for grants made after 15 October 1996. Ceilings were also placed on criminal trials in County ($15,000) and Supreme Courts ($30,000): Victoria Legal Aid, 2nd Statutory Annual Report, 1996/1997 at 7. For a discussion of situation in NSW see Richardson, M., “Contemporary comments; a Background to the Current Legal Aid Funding Issues” (1997) 9(2) Current Issues in Criminal Justice 153; Legal Aid Queensland, Annual Report 1997/98 (1998) at 12Google Scholar.

⁹⁰ For details of the fee ceilings see Senate Legal and Constitutional References Committee, n 13, Appendix 4.

⁹¹ Springvale Legal Service, Hitting the Ceiling (1998); Crossroads Family and Domestic Violence Unit, Trial by Legal Aid: a legal aid impact study (1999).

⁹² Troup, M., “Cuts to Legal Aid: The impact on women's access to justice” (1997) 9 The Australian Feminist Law Journal 151CrossRefGoogle Scholar; Giddings, J., “Women and Legal Aid” in Giddings J. (Ed), Legal Aid in Victoria; at the crossroads again (1998)Google Scholar.

⁹³ Dewar, Giddings and Parker, n.1. This perception is shared by the Chairman of Victorian Criminal Bar Association who stated that “junior barristers are taking work that should be done by much more senior barristers to the detriment of the client”: Innes, P. n.69. In response to concerns from the private profession VLA increased certain payments to private practitioners in 1998/99. Family law matters in particular attracted higher fees for certain stages of proceedings. In July 1998 LACSA ceased its interim “rationing” of expenditure in family law matters.

⁹⁴ “Legal Aid Bodies must remain integrated and funding be maintained”, n. 45 at 40.

⁹⁵ Dewar, Giddings & Parker, n.1

⁹⁶ National Legal Aid Survey of legal firms doing legal aid family law work January 1999 as quoted in ALRC report n 82, at 345.

⁹⁷ Most legal aid Commissions wound back the provision of services in civil law. For example, the Civil Law Section of the Legal Services Commission of South Australia (LSCSA) ceased to operate as a separate casework section with its own manager. LSCSA made a decision in 1997/98 to limit civil law matters to those in non-costs recovery jurisdictions. The majority of civil grants are now for representation in Youth Court protective hearings. There is a large unmet need for civil law services. LSCSA notes that 42% of all advices (a free 30-minute consultation with a legal or para legal staff member), were for civil maters. Only 5% of all grants for 1998/99 were for civil matters. LSCSA Annual Report 1998/99 at 18.

⁹⁸ Access to Justice Advisory Committee, n 4, at 259.

⁹⁹ The 1995 Act provided the legislative framework for a Law Aid Scheme .The scheme is a joint undertaking between the Law Institute, Victorian Bar and the Victorian government. Under the scheme Law Aid pays for all disbursements (except counsel's fees) while the legal practitioners agree not to charge until the litigation has been successfully concluded.

¹⁰⁰ The scheme pays for court preparation outlays such as court filing fees, the production of specialised reports (ie-medical reports) and expert witness fees. It does not pay for solicitors or barrister's fees “...as they are primarily required to speculate their professional fees.” The Public Trustee of Queensland provides funds for the scheme: Legal Aid Queensland Annual Report 1998/99 (1999) at 16.

¹⁰¹ Robertson, D., “Pro bono—New Strategy for public interest litigation?” (1994) 19 Alternative Law Journal 15Google Scholar.

¹⁰² For a brief summary of schemes see Regan, F., “Legal Aid without the State; Assessing the rise of pro bono schemes” in O'Reilly, J., Paterson, A. & W, Pue. (Eds), Legal Aid in the New Millennium (1999) at 56Google Scholar.

¹⁰³ Senate Legal and Constitutional References Committee, n 13, at 23 and 24.

¹⁰⁴ In 1996 National Legal Aid estimated that an extra $64.9 million was needed to restore legal aid eligibility rates to those that existed in 1987/88. This was before the Commonwealth reduced funding by an additional $100 million. Giddings, J. n 68 at 3.

¹⁰⁵ See n 39.

¹⁰⁶ Sackville n 2 at 164.