In the United States of America, it is written in the Constitution that accused criminals have the right to have the assistance of counsel in their defence.
If a defendant cannot afford counsel, then the government pays. In Australia, we have no similar rights enshrined in our constitution, and there is no common law right to free legal representation.
But although we have no written right, the desire to ensure that everyone can have access to legal representation is part of the fabric of our society.
From this belief the organisation known as Legal Aid was born.
Legal Aid operates in every state in Australia, and provides legal services to socially and economically disadvantaged people.
But in NSW, Legal Aid is under increasing threat from budget cuts.
How does Legal Aid NSW operate?
Legal Aid NSW offers free legal advice over the phone, and means-tested representation in court, in a variety of criminal, civil and family law matters. The state government funds the service, and there are restrictions on who can apply for legal aid grants. Funding is used to provide legal representation to those who are disadvantaged in two ways:
- Legal Aid employs a number of in-house solicitors who represent people throughout the court process at no cost, no matter the plea.
- Legal Aid assigns certain cases to highly qualified private criminal lawyers, who represent defendants in court. Legal Aid uses government funding to pay the private lawyers’ fees, at a much lower rate than private clients would be charged. Sydney Criminal Lawyers is proud to have a strong working relationship with Legal Aid NSW, and offer quality representation to those defendants who need it, and don’t have the means to afford private lawyers.
Why has Legal Aid funding been cut?
It is probably not news to learn that the state of NSW is in a budget squeeze.
There have been numerous cuts to funding for a number of government services, including Legal Aid.
According to Legal Aid NSW, reduced funding and a rising demand for its services have created significant challenges.
While the service is working to increase revenue, including through costs recovery, inevitably there have been changes to the way it conducts business, including which types of cases get representation, and which cases get outsourced to private lawyers.
The effects of the funding cuts
The funding cuts have placed a lot of pressure on Legal Aid NSW, particularly on the officers who are responsible for assessing applications for funding grants and directing work to private lawyers.
As a result of funding cuts, there have been staff freezes, cuts to administration, and private practitioners are being assigned fewer cases and are being paid less for the work they are assigned.
For example, Legal Aid has stopped providing free legal advice or representation to children and people at a “special disadvantage” in victim’s compensation matters, or motor vehicle matters.
These people, who are among our more vulnerable in society, will need to see private practitioners only, or represent themselves, in these types of cases.
Local court cases are now rarely being directed to private lawyers, and cases that are set down to be heard in higher courts are not being assigned to private lawyers unless there is a real chance of a prison sentence being imposed.
This places more strain on Legal Aid’s in-house team, and may lead to defendants who are facing charges for offences such as shoplifting, goods in custody, assault, resisting arrest and minor drug offences being on their own.
Either they represent themselves, find a pro bono lawyer, or just plead guilty.
Defendants without legal representation may be more likely to plead guilty, simply because they don’t understand their rights.
Alternatively, these defendants may be found guilty because they are unable to adequately defend themselves, even though they may be innocent.
This strikes at the heart of the fabric of our legal system.
It fundamentally affects a defendant’s right to a fair trial, it impacts upon the ideal that everyone is innocent until proven guilty, and denies a defendant the right to put forward their defence.
Legal Aid provides a vital service within the community, and these cuts affect the fairness of our legal system, and go against the idea that everyone should have access to legal services, no matter their background or circumstances.