The Law Council of Australia warned in July that legal aid funding is at “breaking point”, following a high-profile murder trial in NSW having to be postponed because of the deplorably low pay rates that simply weren’t attracting barristers that could handle such a case.
These criticisms over the lack of federal government funding allocated to legal aid are nothing new. And what it means is that the Legal Aid NSW criteria applying to cases it takes on have grown increasingly restrictive over the last decade.
Legal aid is the provision of assistance to people who can’t afford the services of a regular lawyer. And those who can’t afford a lawyer and are turned away by legal aid fall into what’s known as the justice gap. And the number of these people is growing every year.
But, for those who do fall between the cracks in the NSW legal system, there is a third option. And that’s pro bono schemes. Pro bono work involves lawyers providing their services free of charge or at dramatically reduced rates. And it’s an essential part of the Australian legal system.
For disadvantaged people seeking pro bono legal assistance there are three main avenues they can take: court-based schemes, programs carried out by professional legal bodies, and community legal centres.
Gratis from the courts
Most full-time Local Courts provide a chamber service, which involves a registrar or deputy registrar, who can provide assistance to members of the public with procedures and applications. However, these registrars don’t provide legal advice or representation in court.
So, for individuals who have either decided to or have found themselves in a position where they have to self-represent before a magistrate, they can have the registrar explain the court process to them. And this service is available via appointment.
A number of courts run their own pro bono schemes. Under the provisions of regulation 7.36 of the Uniform Civil Procedure Rules 2005, if a court believes it’s in the “interests of the administration of justice”, a litigant can be referred to a Pro Bono Panel barrister or solicitor for legal assistance.
These included the NSW Supreme Court Legal Assistance Scheme, the NSW District Court Scheme, as well as the Federal Court Legal Assistance Scheme and one that applies to the Federal Circuit Court. And a judge may refer an individual to the Pro Bono Panel based on their circumstances.
Pro bono solicitors
The Law Society of NSW represents the interests of the almost 30,000 solicitors in this state. And the professional association operates its own Pro Bono Scheme. The society can put eligible people in contact with law firms that are willing to provide their services for free or at reduced rates.
And what makes an individual eligible for these services is firstly, having been rejected by Legal Aid. Then they must satisfy a means test, their matter must be of merit or have a reasonable chance of success, and it must be the type of case the scheme covers.
Matters that it takes on include AVOs, criminal law, divorce and immigration services for refugees, while it doesn’t provide assistance for defamation cases, car accidents or personal injury claims. Those interested in this service can apply online.
Barristers on the house
The NSW Bar Association runs its own Legal Assistance Referral Scheme, which tries to meet an individual’s request for legal support with the barrister or mediator best suited for their particular case.
The scheme is for people whose household income is below $1,000 a week before tax. And there are three steps to applying. The first is filling out the detailed application form. From there the associations’ board considers the matter, and if successful, the case is matched with a lawyer.
Another initiative run by the Bar Association is the Duty Barrister Scheme. This involves barristers assigned to particular Local Courts to help those who can’t afford a lawyer, have been refused assistance by Legal Aid, and have a matter before the court on the day.
The NSW Bar Association explains that its “schemes reflect the strongly held view of the bar that a person’s rights and access to justice should not be diminished because they have little or no money.”
Representing the marginalised
There are over 40 community legal centres in NSW. And in many ways, they provide the legal backbone for those facing economic hardship and discrimination in the community. And these independent, non-government organisations provide legal services free of charge.
Some community legal centres provide general services, such as the Redfern Legal Centre and the Inner City Legal Centre, while others specialise in specific areas, like the Women’s Legal Service NSW and Justice Connect.
Bringing about social change
The Public Interest Advocacy Centre (PIAC) is a community legal centre that has a focus on taking on cases with a social justice or human rights bent that will not only bring about success for the litigant, but will also lead to systemic change.
In deciding on whether to take on a case, the PIAC considers whether it’s an issue causing considerable harm, if it will benefit a disadvantaged sector of the community, whether it has a reasonable prospect of success, as well as if it will produce a significant impact.
Some of the areas the PIAC specifically focuses upon are asylum seeker health rights, discrimination, policing, Aboriginal and Torres Strait Islander justice, homelessness, and a fairer National Disability Insurance Scheme.
First Nations justice
The Aboriginal Legal Service (ALS) NSW/ACT first began operating in 1970, out of a shopfront in Redfern, providing free legal assistance to Aboriginal people. It was at a time when local Indigenous people were subjected to a 9.30 pm curfew, as well as arbitrary police detention.
The ALS was in response to injustices stemming from an imposed legal system. And fifty years later, the legal service now provides assistance with criminal matters, childcare and protection law, the family courts and tenancy matters.
Too little, too late
Of course, Legal Aid NSW provides free services as well. And the reason it has to turn away so many is due to underfunding. However, that might be about to change, as NSW attorney general Mark Speakman just announced an $88 million funding injection to be delivered over the next four years.
Indeed, after 12 years of wage flatlining, the hourly rate paid to lawyers is to be increased by $45 an hour gradually over those coming years. The move came after many lawyers had threatened to remove their services if wages continued to stagnate.
However, NSW Bar Association president Tim Game SC said at the time that the staggered one-off investment wouldn’t adequately address the justice gap. And the extra funding is only about a third of what Legal Aid NSW has asserted would make the difference that’s so desperately needed.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.