By Blake O’Connor and Ugur Nedim
Unlike in the United States, there is no general right in Australia to a defence lawyer for those who cannot afford it.
In fact each year, tens of thousands of people across the country find themselves in the ‘justice gap’ – where they cannot afford private legal representation but are ineligible for legal aid funding or assistance from a community legal centre.
As the Law Council of Australia explains:
“At least 45,000 Australians have been forced to represent themselves in court, often up against powerful and well funded legal teams, due to the crisis in legal aid that has seen hundreds of millions of dollars ripped from these vital services”.
This ‘justice gap’ continues to grow in Australia because government funding for vital legal service is being significantly outstripped by demand.
The potential implications are that more and more innocent people are pleading guilty for fear of having to represent themselves in court, or are unfairly being found guilty due to their lack of an effective defence.
The situation has now led to calls for businesses associated with criminal activity, such as pubs and casinos, to contribute to the cost of public legal services.
Calls for additional funding have been enhanced by an article in the Australian Financial Review, which found that New South Wales is in better financial shape than ever before.
According to the report, “the state has just wiped out its net debt, the budget is in surplus, unemployment is the lowest of any state in the country and infrastructure spending is at record highs”.
Despite this, the government has proposed to reduce funding to legal aid and community legal centres.
One of those calling for governments to increase funding, and for businesses to contribute, is NSW Bar Association President, Will Alstergren QC.
“Everybody recognises there is a massive gap in funding between what is required and what is actually available. We want to get the message out to the community that there is a real need for more funding…” he stated.
“it’s about the community itself where so many people should be entitled to access to justice but are not getting it”.
Mr Alstergren suggests that a levy be placed on businesses who contribute to the use of the legal system, such as the gambling, alcohol and tobacco industries.
Justification for levy
It has been estimated that between 20% and 25% of problem gamblers in Australia commit crime to fuel their habits, especially fraud offences.
Gaming venues – such as pubs and Star Casino – are also known for alcohol-fuelled violent crimes such as assaults, which place a heavy burden on the criminal justice system
Both the state government and gaming establishments have benefited from a rise in gambling in our state. In 2015, $73 Billion was put through NSW poker machines, representing a 6% increase from the previous year despite the fact that the number of gaming machines fell by 244 to 93,364 in the same period.
In that context, many feel it is not only fair but warranted for governments to increase funding for public legal services, and that a levy be imposed upon the gaming and alcohol industries.