Legal aid now just a Band-Aid

RICHARD ACKLAND May 17, 2013

Illustration: Simon Letch

Let's call it the funnel effect. A great quantity of material is piled in at the top which ultimately squishes down to droplets coming out the bottom.

So it is with law 'n' justice. Masses of new laws are passed that extend the boundaries of criminality.

In recent parliamentary sessions we've seen the introduction of a new Bail Bill, which largely retains the presumption against bail; evidence of silence amendments (abolition of the right to silence); anti-consorting laws; move-on powers; declaration of outlawed organisations; and mandatory life sentences where police have been murdered.

Concurrently, the budgets, resources and powers of the police force also are expanded.

Meanwhile, at the tail end of the production process, the provision of legal aid services for accused, there are tireless cutbacks and reduction in capacity to apply quality control to the manufacture of new criminals.

Last week the legal aid people in NSW internally circulated a board decision to stop funding a large number of defended cases in the Local Court. Only those cases where there is ''a real possibility of a jail sentence'' will be considered for grants of aid.

The Local Court is where 90 per cent of criminal prosecutions are finalised. Last year NSW Legal Aid assigned $12 million for Local Court cases, almost three times the amount of six years earlier.

So accused people facing charges for offences such as shoplifting, goods in custody, assault, assaulting police, resisting arrest, offensive language and minor drug offences are on their own.

Either they'll have to represent themselves or find a pro bono lawyer, or just plead guilty and do their bit for the expansion of the population with a jail sentence.

A memo from the director of Legal Aid's criminal law division, Brian Sandland, explained that these cuts will produce ''teething problems'', including ''managing client expectations and managing the reaction from the bench''.

''Teething problems'' may be a generous use of words, judging by reactions from the bench in Victoria, which has gone through a series of legal aid cuts.

In that jurisdiction, entire cases were stayed only because there were no fees for instructing solicitors and, horror of horrors, barristers were expected to fly solo.

The notion of having a trial with only one defence lawyer, apparently, is a novelty.

In NSW the new policy is considerably more punishing, because it amounts to no lawyers at all for Local Court cases, unless the prospects of prison for a defendant loom exceedingly large. For cases where prison is an unwelcome surprise, then tough luck - you might pick up some aid for the appeal.

The scything of legal aid funding has been with us for a long time. Lawyers squeal, but one is never quite sure if they are squealing for themselves or their poor, blighted clients.

To some extent, at least in NSW and to a lesser extent in Victoria, the funding has been propped up by a delicious hollow log at the governments' disposal - the public purpose fund. This is the fund into which is squirrelled the interest on solicitors' trust accounts. In other words, it is the interest on clients' money that is subsidising the lawyers for clients who don't have money. What could be fairer? Except that it has allowed governments to take a relaxed view about stumping up their own money for these services.

The public purpose fund has been so comprehensively plundered by the state that even that tap is drying up.

The political attitude must be that legal aid goes only to the most disadvantaged people, and no one cares about them. Lawyers sometime cry out on their behalf, but who is listening?

The total income for legal aid in NSW last year was $243.6 million, and it spent more than it got. The NSW Police expenditure for the same period was $3.2 billion.

Helpfully, the wonderful Bureau of Crime Statistics and Research has just published a bunch of figures on Local Court activity.

Last year nearly 7000 people were sentenced to imprisonment by NSW Local Courts. That gives some idea of the scale of the cutbacks proposed by Legal Aid.

At the same time, the magistrates were able to finalise fewer cases - about 6 per cent fewer last year than the year before.

It's been going on in the Old Dart as well, where the Tory government has come up with the brilliant idea of outsourcing legal aid work for criminal cases.

The cuts there are so bad that a record number of barristers are applying for jobs on the bench, where at least the income is steady.

It's been called the ''stampede for the purple lifeboat''.

The Ministry of Justice is looking to save £220 million ($340 million) from the criminal legal aid budget.

As part of that project, private companies are being invited to tender for criminal legal aid contracts. A subsidiary of a trucking-haulage company, Eddie Stobart, has emerged as a contender to provide this service. Trucking and el-cheapo legal aid is not a traditional connection, but this is the era of innovation.

There's also been lots of speculation that Serco, the private incarceration specialists, might also tender for the work. There's a certain synergy between representing the accused and then managing their imprisonment.

It's the sort of thing that might be attractive to an Abbott-type government.

It's the funnel effect in all its glory.