The State of Australian Legal Aid

Date01 March 2001
Published date01 March 2001
Subject MatterArticle
Mary Anne Noone*
Recent comment on the Australian legal aid system has focussed on the declining
levels of funding and the consequent impact of this reduced funding. Little attention
has been given to the range of other changes that have occurred within the legal aid
system in the last five years.1 There have been changes at all levels: in the
organisational structures of legal aid organisations; the management of the provision
of legal aid services; the form and number of legal services; and the relationships
between the stakeholders in the system. Many of these changes did result from severe
Commonwealth funding reductions in the 1997/98 funding year and the shift to the
"purchaser/provider" model of Commonwealth government funding. Other changes
are representative of broader developments in technology, management and
government. Different changes have occurred in different States but a fundamental
change has been the shift away from seeking a unified approach to the provision of
legal aid across Australia.
This article documents some of these changes. The focus is on two distinct but
related aspects of change in the state of Australian legal aid: the impact of
"corporatisation" on the management and infrastructure of legal aid; and the related
development of new approaches to service delivery including utilisation of new
The period under review is 1995–1999. The year 1995 was chosen as the trend
towards corporatisation was encapsulated in legislation introduced into the Victorian
parliament that year to make the then Legal Aid Commission of Victoria (LACV) "a
more corporate like body".
This account illustrates that the Australian legal aid system is in transition. In
assessing the state of Australian legal aid, contradictions in recent developments
become apparent. Innovations and improvements are occurring in parts of the system
* Mary Anne Noone, Senior Lecturer, Director, Law Program, School of Law and Legal
Studies, La Trobe University. Mary Anne has been a member of the Board of Victoria Legal
Aid since February 2000 but the views expressed here are entirely personal and in no way
represent those of VLA. Special thanks to Russell Bennett for research assistance and
Professor Margaret Thornton for comments on early drafts of this paper.
1A 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)
38 Federal Law Review Volume 29
but simultaneously other aspects of the system are regressing. More people are able to
access advice and information but the numbers of people receiving legal representati on
has decreased. Legal Aid agencies are running more efficiently but the service levels
have not increased proportionately as the funding available has declined. Government
seeks to call on the legal profession to provide more pro bono work whilst seeking to
limit their input into legal aid decision making bodies.
Legal system pre-1995
Prior to 1973 the principle mode of legal aid delivery was through State based judicare
systems run by the private legal profession as well as some salaried services in New
South Wales, Victoria and Queensland. There was no consistency or equity in policy
or practice across the States in the provision of legal services to the poor.2
During the period 1973-1975, the Australian legal aid system went from a
fragmented State based system, to one where the Commonwealth government sought
to take the lead and establish a national system called the Australian Legal Aid Office
(ALAO). In 1973, the Federal Attorney-General Lionel Murphy, said about the opening
of the ALAO:
The Government has taken action because it believes that one of the basic causes of the
inequality of citizens before the law is the absence of adequate and comprehensive legal
aid arrangements throughout Australia. ...[T]he ultimate object of the government is that
legal aid be readily and equally available to citizens everywhere in Australia and that aid
be extended for advice and assistance of [sic] litigation as well as for litigation in all legal
categories and in all courts. 3
With a change to a Liberal government in 1975, the legal aid system moved to an
arrangement where the States had the responsibility for the provision of legal aid but
funding was shared between the States and Commonwealth governments.4 By the end
of 1979, State based legal aid commissions, were legislatively established in all but two
of the States and Territories.5
Legal aid commissions are independent statutory bodies constituted by a board of
commissioners prescribed by State legislation. Prior to 1995, this usually included
nominees of the State and Federal Attorneys-General, the local law society and bar
association, an organisation representing recipients of legal aid and community legal
centres.6 The primary function of legal aid commissions is to provide legal assistance
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).
3Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2802 (Lionel Murphy,
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 commissionsNorthern Territory Legal Aid Act 1990 (NT); and Legal
Aid Commission Act 1990 (Tas)
6For a more detailed discussion of the financial and regulatory structure of legal aid see
Access to Justice Advisory Committee, n.4, p 231

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