Poverty and the Law — the Limitations of Australian Legal Aid
| Author | James J. Spigelman |
| DOI | 10.1177/000486586900200204 |
| Date | 01 June 1969 |
| Published date | 01 June 1969 |
Poverty and the Law
- the Limitations of
Australian Legal Aid
JAMES J. SPIGELMAN*
"Open
thy
mouth,
judge
righteously
and
plead
the
cause ot
the
poor
and
neetiu."
(Proverbs
31: 9)
THE
availability
of equal
justice
to all is
one
of
the
fundamentallegitimising
pillars
of
the
Australian
legal system.
Perhaps
for
this
very
reason,
the
existence of
such
equality
is
rarely
challenged
except. by
the
most
perfunctory
expressions of concern. No less
than
other
established
groups,
the
legal
profession is
adept
at
employing
the
social
mechanism
of
expiation
by cause celebre, by
which
asingle
instance
of a social
injustice
is
taken,
publicised
and
remedied.
God-fearing
citizens
can
then
return
to a
blinkered
bliss
with
easy consciences.
The
injustice
returns
to
the
end
of
the
public
concern
queue.
We
have
recently
witnessed
this
process
in
operation
within
the
New
South
Wales legal system. ASydney
magistrate,
G. M. Locke, S.M.,
first
granted
bail
to
the
defendant
invalid
pensioner
then
withdrew
the
grant;
refused
his
requests
for
an
adjournment
to
obtain
legal
representation;
and
referred
with
stern
disapproval
to
alist of convtctions
which
had
.neither
been
proved
nor
even
admitted
in evidence
and
which
the
defendant
denied. On
appeal
Holmes J.A.
declared:
The
picture
is
one
which
shows how
the
poor, sick
and
friendless
are
still
oppressed by
the
machinery
of
justice
which
needs
aFielding or
aDickens
to
describe
in
words
and
a
Hogarth
to
portray
ptctortally.t
This
is a
serious
allegation
and
yet
the
interest
of
the
legal profession
in
this
case was
concentrated
on
the
rap
over
the
knuckles
given to
the
magistrate
concerned.»
Corbishley
failed to
stimulate
any
debate
about
the
position of
the
poor
in
the
Australian
Iegal system.
The
case itself shows
that
the
law
can
deliver justice, if
used
properly,
but
there
appears
to be
no
realisation
that
such
cases
may
only
represent
the
tip
of
an
iceberg.
The
Australian
situation
stands
in
marked
contrast
to
the
fervour
of
activity
in
the
United
Sta.tes of America,
out
of .
which
'has come asertous
attempt
to
reform
a
system
in
which
justice
is
rationed.
The
legal
profession is a
key
participant
in
the
newly
fashionable
debate
on poverty.
*B.A. (Hons.),
Tutor
in Government, University of Sydney.
1. Ex
Parte
Corbishley;
Re
Locke
&
Another
(1967), 86 WN (NSW),
Part
2. 215
at
2<18.
2.
See
also R. v.
Mahoney-Smith
(1967) 2,
NSWR,
154.
87
88 AUST. &N.Z. JOURNAL OF CRIMINOLOGY (1969): 2, 2
Considerable research
has
already been
carried
out
in
the
U.S.A. on
the
peculiar
legal problems of
the
poor,"
In
the
field of family law, problems
of desertion, child abuse
and
illegitimacy
often
raise difficult legal ques-
ttons.s
In
relation to housing,
the
poor
are
often
denied
their
legal
rights
in eviction proceedings
and
in
the
landlord's failure to
repair
or to
meet
housing code requirements.e Acombination of deceit
and
lack of consumer
education
poses
further
problems particularly in
relation
to
credit
for
con-
sumer
purchases
from
merchants
and
door to door salesmen.? Acrucial
field of concern is
the
administration
of government welfare expenditures,
open to
the
same abuse as
other
fields
with
which
administrative
law is
concerned. Restrictive regulations
and
admmtstrattve
requirements
are
rarely
challenged in
the
welfare field.
Particular
problems
may
be caused
by
such
administrative
decisions as eligibility determination.?
Research
has
revealed
the
difficulties facing poor persons
in
the
criminal
process.s
"The
most
serious of
these
disadvantages
[are]
in-
adequate
defence
representation,
inadequate access to investigative
re-
sources
and
expert
assistance
needed to
prepare
and
conduct adefence,
commitment
to
jail
pending
trial
for inability to
make
bail,
commitment
to
jail
after
conviction for inability to pay fines, disproportionate
sus-
ceptibility to sentences of
imprisonment
for
want
of community
relation-
ships
which
facilitate
programs
of supervised release . . . These dtsabtltties
are
cumulative,
they
often
combine to deny equal
justice
to
the
impoverished
defendant
regardless of his innocence or guilt,
at
every
step
in
the
proceeding."9
Attention
has
also been given to
substantive
criminal law, e.g.,
3.
For
brief
summaries
of
the
literature
see Z. F.
Hostetler,
"Poverty
and
the
Law"
in
Ben B. Seligman (ed.),
Poverty
as a Public Issue,
Free
Press,
New
York
(1965),
or
J. E.
Carlin
and
J. Howard,
"Legal
Representation
and
Class
Justice"
12 UCLA Law Rev., Pt. 1
(1965). A more
comprehensive
survey
is P. M. Wald,
Law
and
Poverty
(1965).
Report
to
the
National Conference on Law
and
Poverty,
Washington,
D.C., 1965.
4. J.
Ten
Broek,
"California's
Dual
System
of
Family
Law"
16
Standford
L. Rev. 257, 900
(1964) 17
Stanford
L. Rev. 614 (1965). J. Pollier,
"Problems
Involving
Family
and
Child",
in
National
Conference on Law
and
Poverty,
Washington
D.C. 1965.
[Henceforth
Conf.
1965.] Also a
number
of
papers
by Paulsen, Kay
and
Phillips, Lewis
and
Levy in
the
excellent
Berkeley
symposium-54
California L. Rev. 319, Pt. 1,
March
1966, pp. 319-1014.
5. J. Levi,
"Problems
Relating to Real
Property"
in Conf. 1965, op. sit.; L. M.
Friedman,
"Public
Housing
and
the
Poor",
and
C. Schier,
"Protecting
the
Interests
of
the
Indigent
Tenant"
in 54 California L. Rev. 319 (1966); J. H. Levi,
"F
ocal Leverage
Points
in
Problems
Relating to Real
Property",
60 Columbia L. Rev., Feb. 1966.
6.
David
Caplovitz, The
Poor
Pay
More,
Free
Press, New
York
1963; A. Dunham,
"Consumer
Credit
Problems of
the
Poor
-Legal
Assistance
as an Aid in Law
Reform"
in Conf. 1965,
op. cit.;
Consumer
Action
and
the
War
on Poverty,
Conference
Proceedings,
Washington
1965; R. M. Viles,
"The
War
on
Poverty.
What
Can
Lawyers
(Being Human) Do?", 53
Iowa
Law Rev, 1967, 122; pp. 140-9, 161-8.
7. H.
Jones,
"The
Rule of Law
and
the
Welfare
State",
58 Columbia L. Rev. 143 (1958).
E. V.
Sparer,
"The
New
Public
Law"
and
E.
Wickenden,
"The
Indigent
and
Welfare
Administration"
in The
Extension
of Legal Services
to
the
Poor, U.S. Dept. of
Health,
Education
and
Welfare,
Washington
D.C. 1964.
(Henceforth
Conf. 1964.) C. Reich,
"The
New
Property",
73 Yale L. J., April 1964; C Reich,
"Individual
Rights
and
Social
Welfare:
the
Emerging Legal
Issues"
74 Yale L. J. 245 (1965); E. Wickenden,
"Administra-
tion
of
Welfare
Rights"
and
E. V. Sparer,
"The
Poor
Man's
Lawyer
and
Governmental
Agencies"
in Conf. 1965, op. cit., E. V. Sparer,
"The
Role of
the
Welfare
Client's
Lawyer"
12 UCLA L. Rev., Pt. L 1964-65. J. F. Handler,
"Controlling
Official Behavior in
Welfare
Administration",
54 California L. Rev., 319 (1966).
8.
Report
of
the
Attorney-General's
Committee
on
Poverty
and
the
Administration
of
Federal
Criminal
Justice,
Washington
D.C. 1963 (Allen Committee). J. Allison,
"Poverty
and
the
Administration
of
Justice
in
the
Criminal
Court",
J. of
Criminal
Law, Criminology
and
Police Science,
June
1964. R. M. Calkins,
"Crimlnal
Justice
for
the
Indigent",
42 Uni-
versity
of
Detroit
L. J., 305 (1965). A. K. Pye,
"The
Administration
of Criminal
Justice"
in Conf. 1965, op. cit.
9.
President's
Commission on Law
Enforcement
and
the
Administration
of
Justice,
Task
Force
Report: The Courts,
Washington
D.C. 1967, p. 58.
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