Legal Aid Funding Cuts and the Right to a Fair Trial


The right to a fair trial is an essential cornerstone of our legal system, but the Federal Government’s cuts to Legal Aid funding look set to erode this important safeguard.

The government’s tough budgetary measures have resulted in widespread funding cuts, and it seems that the legal system is no exception.

Established in 2000, the Expensive Commonwealth Criminal Cases Fund (ECCCF) provides funding for serious and lengthy Commonwealth criminal trials which cost more than $40,000 to defend.

These include serious Federal cases including terrorism, drug importation and exportation, and certain Commonwealth fraud cases such as substantial Centrelink fraud charges.

However, the recent budget cuts have seen the amount of money in the fund drastically decrease to $2.7 million in the 2014/2015 financial year, down from $10.8 million in the previous year.

This massive reduction means that the ECCCF fund had reportedly dried up by December 2014 – with more than 6 months left to go until the next injection of funds.

This has caused Legal Aid NSW to make the unwelcome decision to cease funding Commonwealth criminal trials lasting 10 days or more from April this year.

The move comes at a time when there has been a significant increase in the number of serious criminal cases before the courts.

There have also been proposals to cut funding in some Commonwealth civil matters and family law cases, sparking concerns that spouses and children are at increased risk of suffering family violence.

Is There a Legal Right to a Fair Trial?

The right to a fair trial is something that has often been taken for granted in first-world democracies such as Australia.

Yet the recent cuts have created concerns that the right to a fair trial will be adversely affected.

Though there is no explicit legislative provision which enshrines the right to a fair trial in Australia, the right is contained in a number of international conventions which Australia has ratified.

These include Article 14 of the International Covenant on Civil and Political Rights and Article 40 of the Convention on the Rights of the Child, as well as Article 13 of the Convention on the Rights of Persons with Disabilities.

The right generally requires accused persons to be treated fairly when before the courts – including giving them a presumption of innocence and a reasonable opportunity to properly present their cases.

The right also includes the right to a public hearing in most cases in order to promote transparency and accountability.

And, of course, courts must be seen to be independent and impartial in order to facilitate fair trials.

The right also incorporates the right to legal representation in serious criminal cases so as not to disadvantage the defendant against the State, which has extensive resources at its disposal including experienced criminal lawyers, various types of investigators and a range of experts.

However, as discussed below, the right is certainly not absolute in Australia.

Case-law

The right to a fair trial has been recognised in several criminal cases over past few decades.

Perhaps the most famous of these is Dietrich v The Queen (1992) 177 CLR 292.

Mr Dietrich was a Victorian man who was charged with a number of serious drug offences.

He pleaded not guilty and sought representation from Victorian Legal Aid, however they refused to grant him assistance unless he pleaded guilty.

Mr Dietrich refused to change his plea and represented himself in a lengthy jury trial, which culminated in him being found guilty of drug trafficking.

He was sentenced to 7 years imprisonment.

He appealed the decision to the High Court, arguing that he had been placed at a disadvantage as he had not been afforded legal representation.

While the High Court’s decision fell short of directly recognising a right to legal representation, it did find that where a defendant is facing serious criminal charges and is not legally represented, the court should allow their matter to be adjourned so that they are able to obtain legal representation.

The Broader Impact of Funding Cuts

While the decision in Dietrich clearly sought to promote fairness and equality before the courts, it has had the unintended effect of delaying serious criminal proceedings given the current lack of funding to Legal Aid services.

Since the funding cuts, there has reportedly been an increase in the number of adjournments and stay applications filed with the courts, creating a backlog of cases.

Coupled with changes to the Bail Act that make it harder to get bail in serious criminal cases, there is a serious danger that defendants will remain locked up for lengthy periods until their matter goes to trial.

Not only does this impinge on notions of justice and fairness, but it also comes at a significant economic cost, with the taxpayer left to foot the bill for keeping defendants in custody.

In Victoria, two serious criminal trials were adjourned in the first week after the funding cuts were passed when the defendants were refused representation by Legal Aid.

These concerns have prompted calls for the government to review its funding arrangements, with the NSW Bar Association asking the government to dedicate another $4 million towards legal aid services immediately.

These requests have been backed by numerous other organisations, including the Legal Aid Commission and the Productivity Commission, which last year recommended that an additional $200 million be dedicated towards civil matters.

The government has responded by saying that the funding of legal services is currently under review, however it is not yet clear whether or not increased funding will be forthcoming.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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