The Legal Aid Act was established in 1978 so that access to justice for the disadvantaged, poor or excluded Australian citizens would be enhanced in a cost-effective way (Bernard, Snipes and Gerould, 29). The Legal Aid Act established a Legal Aid Commission (LAC) that ensured that the citizens who did not have the capacity or means to hire and engage private legal practitioners were able to access the Australian justice system (Kubrin, Stucky and Krohn, 18).
This fact would help the citizens to enjoy relatively equal and just outcomes of criminal, civil, family and administrative law matters. This Act was also important in that the access to justice and equality would conform to the legitimacy of the Australian justice system. This aspect would therefore help in avoiding social fragmentation between those who would not afford private legal consultations and those who would.
The Legal Aid Act[1] of 1978 contained thirteen parts. The parts included preliminary definitions, establishment and functions of the Legal Aid Commission, its committee and provisions of legal assistance by the commission, reconsideration and review of decisions, finances of the commission, administrative provisions relating to the Legal Aid Commission, committees and reviews.
It also included consultative committees; miscellaneous liabilities of the commission and finally, the transitional and the savings part respectively (Ilana and Bard, 17). Annotations 1.Denniss, R. Fear, J. and Millane, E. (2012). “Justice for All.” Giving Australians greater access to legal systems, Institute paper 8(1), 3-8. Print. According to the article, every individual needs to get fair treatment in the courts.
It is therefore necessary that he procures the representation of a lawyer in any given court case. Lawyers can be expensive depending on the seriousness of the case that needs to be resolved and the ability and capacity of the person seeking representation to pay for legal services. The legal system operates by the rule of law that applies to all citizens.
The high cost of legal representation has fundamental implications on the rights of disadvantaged citizens. Since 1973, the legal aid system of Australia has been providing legal assistance and advice to the disadvantaged citizens who would otherwise not afford the access to justice. The legal aid system has however been “underfunded” since the withdrawal of the Commonwealth[2] funding.
The present funding does not meet the level of needs of the Australian disadvantaged community. The legal aid commissions both at the state and territorial levels use complex forms of mechanisms for rationing and administering legal assistance so that the most appropriate and deserving cases qualify. In reality, the limitation and rationing of legal assistance shows that only the most poor and rich citizens have a high probability of legal representation.
Many Australian citizens belong to the vast middle class. This means that the accessibility of legal aid is low for poor citizens. This fact is true regardless of the strength of the individuals’ cases or the degree of justice that they pursue. Therefore, the legal aid[3] system has certain inclinations to only certain socio-economic cadres of the Australian society.
Australians have not been confident with the Australian legal aid system for a long period of time. 2. Rix, Mark. Legal Aid, the Community Legal Sector and access to Justice: What has been the record of Australian Government? 2007. Plymouth, United Kingdom: Plymouth. Print.
In his book, Rix argued that legal aid services suffered due to the withdrawal of Commonwealth funding.Rix said that there was high concern that the quantity, quality and the degree of legal service assistance to people had declined in Australia. The cooperative model had been replaced by the purchase or provider funding.
This fact had introduced another level of administrative and financial responsibility hence LACs channeled their funding elsewhere instead of using it in the provision of legal services to the citizens. The purchase or provider funding by the Commonwealth only funded matters that were under the Commonwealth law therefore inhibiting legal assistance to the needful.
Many of the legal issues did not completely fall into the category of Commonwealth law and therefore, Australian citizens under the legal issues did not receive legal assistance. An example of a common legal issue that is not covered by the Commonwealth law and therefore receives no legal aid is domestic violence. The funding of only Commonwealth matters leads to results that are insufficient, ineffective and illogical.
Domestic violence should fall under family law which is under Commonwealth law. Domestic violence has a very high percentage of legal issues that need resolution. The purchase or provider scheme effectively reduced the funding required in legal family court issues, war veterans and child maintenance and support. This fact together with the reduction of funding from the Commonwealth completely changed the operations of the Legal Aid Commission.
This restriction of funds meant that certain cases could not proceed and also a number of citizens who desperately needed legal assistance had very limited chances of getting the service. The number of people who could receive legal aid decreased and the probability of an applicant to get legal aid was reduced. The legal aid could also be provided with no charge and without any means of test or any procedural requirements. Legal aid could be in the form of grant money in accordance with part 3 of the Australian constitution.
This fact showed that the commission could provide free legal aid to the applicants and could also determine which matters required the aid (Ivancevich and Matteson, 26). 3. Community Law Australia. (2012). “Unaffordable and Out of Reach.” The Problem of Access of Australian Legal System 12(3), 120-138. Print.
According to the article, the legal system of Australia provides legal assistance to the less fortunate through legal aid commissions, community legal centers, indigenous legal service or other private lawyers who act as “pro bono”[4].
Due to the reduced funding of this service by the government, the legal aid services have been put in a situation that limits the eligibility of individuals who are poor. Therefore, those citizens who need legal help but cannot afford representation do not often get it. The Australian government noted that about 98 percent of the individuals who received legal assistance were considered to be below the poverty line; hence this fact meant that most of the Australian citizens were unable to afford private legal assistance.
Nevertheless, these individuals were eligible for legal assistance. Individuals who have no qualifications for legal aid usually go to community legal centers which deal with civil law. Civil law issues are dealt with by legal aid commissions. A majority of citizens who require legal assistance in civil law issues cannot be attended to. Due to funding challenges, the community legal centers have not been able to provide effective and sustainable aid.
They have only been able to offer limited assistance which in most cases is not enough for the individual seeking legal assistance. Pro bono services and indigenous services are also overused and cannot offer the proper and required legal assistance to people who are in need of them. The need for government funding that ensures provision of legal assistance should be provided to all individuals who are eligible for it. This study focuses on legal aid funding.
Therefore, we shall review the financial perspective of the commission which is part 7of the financial section of the commission. The provision of the legal aid as per section 30 of the Legal Aid Act 1987 states that in accordance to subsections (2) or (4), the commission can provide legal aid. It may determine legal aid depending on the matter at hand. 4. Kirkwood, D. Inquiry to Legal and Access of Justice; Submission to the State and Constitutional References Committee. 2003.
Vancouver, Canada: University of British Columbia. Print. According to Kirkwood, the National Association of Legal Centers noted that there was a significant reduction of legal assistance in civil and family laws and also across all areas of law due to the poor funding by the government. This fact has overseen the reduction of individuals receiving legal aid. Reduction of legal assistance has really caused undue pressure on other legal service providers because most of the people do not receive any assistance at all.
The justice system has however become increasingly complex over the years. A significant improvement of the laws that govern and regulate citizens has continued to be realized. Australian citizens expect their government to expertly manage their own legal issues because they remit tax to the government. The process of out sourcing and privatization in Australia means that the citizens must negotiate with several providers so as to access basic services.
The concept that each Australian citizen is equal before the law has been undermined greatly by funding issues therefore giving an opportunity to only those who can afford private legal aid. This aspect has greatly lowered the community’s confidence towards the justice system and law compliance. The access to justice through legal aid has become an unfulfilled promise of the government since many of the citizens are poor and their cases have not been prioritized.
People who receive legal assistance subsequently get limited aid that is insufficient to resolve their legal matters. Empirical evidence has shown that other factors except the underfunding of legal aid services have greatly contributed to the poor services offered by legal aid services. Previous studies have shown that the legal aid reduction had very little effect on legal aid services.
The study however showed that there was a high percentage of self-representation. The study also revealed that a lot of people in Australia believed that they were not eligible for legal aid. 5. Rosemary, H. Jeff, G. and April, C. (2003).”Law Journal.” Legal Aid and Self Representation in Family Court Australia 12(5), 23-38. Print.
This article focused on the research in the emerging response of self-representation in the family courts in Sydney, Parramatta and Adelaide cities that are populated with people of both middle and lower classes. Most of the earlier research had focused on funding shortages but this research focused on self-representation and the access of legal aid by litigants.
The study researched about the relationship between self-representation and the availability of legal aid funding in family law. The results were presented as statistical analysis. The study showed that from the litigants used in the research, only 12.3 percent had received help from a legal aid lawyer. This figure was small and was a reflection of the number of people in Australia who successfully received legal aid. Part of the cases had moved to court without the appearance of a lawyer.
About 8.9 percent of the sample study went to court waiting for the appointed lawyer from the legal aid commission to represent them. Most of the clients who had successfully qualified for legal aid did not receive any lawyers to represent them due to the low numbers of legal representatives. This number represented about 5.4 percent of the population who had not been served by legal representatives. Majority of people, 44.6 percent, had their grants of legal aid terminated or not extended as the court proceedings were on going.
This fact showed the unreliability of the aid given by the commission. About 3.5 percent of the clients could not get legal aid for the type of legal issues they had because they did not fall under the Commonwealth law and about 5.2 percent could not access legal aid offices due to their geographical locations. These statistical figures gave a reflection of the state of legal aid services rendered to the citizens. The figures showed that only a small percentage of people received legal assistance fully.
Certain clients received legal representation but lacked representation and the grants were terminated. This aspect clearly showed the unreliability of legal aid and led to reduced reliance on it by poor Australian citizens. Case study Dietrich versus the Queen This case is among the important cases in Australian judicial laws. It was decided by the Australian High Court on 13th December 1992.
The case demonstrated the need to accord fair trial to a defendant and exposed the corrupt nature of the Australian justice system. The case was an indictment of the Australian justice system and exposed its malpractices in terms of violation of the human rights of the defendant. The defendant had to be provided with legal assistance and if it would not have been provided, then the trial would have been adjourned until a legal representative was found. The name of the accused was Olaf Dietrich.
The defendant was prosecuted for having been in possession of heroin which he had carried from Bangkok but was apprehended in Melbourne Airport on December, 1986. He had put the drugs in sachets and swallowed them. He was arrested one morning by Australian Federal Police. He was then taken to Pentrige Prison Hospital where he was induced into releasing the remaining sachets from his body. He claimed in court that the drugs had not been his but that the police had “implanted” them on him.
His trial took place in the Court of Victoria in 1988.He was prosecuted under the Customs Act of 1901 for being in possession and trafficking of drugs. During his trial, he had no legal representation although he had applied for it. The Legal Aid Commission declined to accord him legal representation and directed that it would only help him if he consented to all the charges brought against him by the state. He sought for legal representation and even filed for legal aid in the Supreme Court of Victoria without any progress.
He was later convicted of the principle charge. He appealed to the Supreme Court but the court did not hear his appeal. In his appeal, there were several arguments raised. He was represented by David Grace who raised the argument of “miscarriage of justice” on his behalf. He did not procure legal representation throughout his trial and given the nature of the charges, legal representation should have been provided to him.
Another argument was that the judge should have adjourned the trial until he was assigned a legal representative. These arguments were based on common law. Dietrich was convicted of trafficking heroine but not being the owner of the heroine that had been found in a paper bag in his house by the police.
This fact showed that Dietrich could have been acquitted of other charges if he had acquired legal representation from the beginning of the trial. Assessment of legal authorities The Australian legal system is organized and mandated to provide a fair trial to defendants and to deliver justice to the deserving (Lanier and Henry, 25). From the case of Dietrich versus the Queen1, an analysis can be made in accordance to how the trial was handled. The court convicted the defendant through the Customs Act 19012.
This Act prohibited the trafficking of illegal substances and properties including drugs. Pursuant to the Victorian Crimes Act of 19583, every accused person was lawfully entitled to representation. The court however did not wait for him to procure a legal representative and claimed that the law stipulated that the defendant had to pay for his own legal representation.
In addition, the court ruled that the law did not say that the state would cater for legal representation of the victim (Lilly, Cullen and Ball, 15). Australia is a signatory to the United Nations International Covenant on Civil and Political Rights (ICCPR) 4. In article 14(3) of the ICCPR, it states that the accused should have legal representation provided to him. The court however denied that and claimed that it had not incorporated the ICCPR into its domestic laws yet it was a signatory to it.
As a signatory, the court should have taken into consideration the laws that were provided in the treaties that the state had subscribed to.[5] The right to representation was also enshrined in Chapter 3 of the Australian Constitution. The Crimes Act of 19584 gave authority to judges to demand legal representation for accused persons.
These acts allowed representation although many of the legal systems failed to notify the defendants. The legal aid commission was obliged to give aid to indigent defendants and this showed that they were biased. Conclusion The Australian legal aid system should provide services to the disadvantaged people who cannot afford hiring legal representatives.
Legal aid should also be availed to all citizens who need access and representation no matter the seriousness of their crimes (Siegel, 4). The Commonwealth laws should also be put into the contexts of territorial or state laws so as to address legal issues and create eligibility for applicants.
The legal aid also needs to receive more funding from the government so that it can provide effective and efficient services to the community and easier access to justice (McLaughlin, Muncie and Hughes, 23). The rule of law is meant to serve all citizens equally. It should not be used as a form of privilege to those who have the means.
Summary of the folios The folios give a clear reflection of the current state of legal aid in Australia. The underfunding, ineffective and inefficient services provided by the Australian government and the conditions for the access to legal aid for the people underscore the “fragile” nature of the Australian justice system (Hopkins, 14).
Legal aid is meant to serve the disadvantaged but the case study reveals that not all disadvantaged people are eligible for the aid. The annotations also indicate that the services offered by legal aid commissions are inadequate and unreliable (Williams, 12). This fact reduces the little confidence left in the community in this system and therefore, this option is not viewed as a solution during legal issues.
Acts and statutes that clearly state and grant individuals the legal assistance do not really convey this message to the community. This fact has made access to justice by the underprivileged very difficult because of the complexity of the conditions for the aid and also lack of information about the aid. These folios can therefore be used to give evidence of the unjust and unreliable nature of the Australian legal aid system to the underprivileged citizens who have no access to the justice system.
Works Cited
Bernard, Thomas, Snipes Jeffrey and Gerould Alex. Vold’s Theoretical Criminology (6th ed.), Oxford, UK: Oxford University Press, 2010.Print.
Hopkins, Burke. An Introduction to Criminological Theory (3rd ed), Gloucester, UK: Willan Publishing, 2009.Print.
Ilana, Kass, and Bard, O’Neill. The Deadly Embrace, London, USA: University Press of America, 2006. Print.
Ivancevich, John, and Matteson, Michael. Organization Behaviour and Management of communication 3rd (Ed), Tetons, USA: Irwin, 2003.Print.
Kubrin, Charis, Stucky Thomas and Krohn Marvin. Researching Theories of Crime and Deviance, Oxford, UK: Oxford University Press, 2009.Print.
Lanier, Mark, and Henry, Stuart. Essential Criminology (2nd ed), Boulder, USA: Westview Press, 2004.Print.
Lilly, Robert, Cullen Frank and Ball Richard. Criminological Theory: Context and Consequences (4th ed), Thousand Oaks, UK: Sage Publications, 2007.Print.
McLaughlin, Eugene, Muncie John and Hughes Gordon. Criminological Perspectives: Essential Readings (2nd ed), London.UK: Sage Publications, 2003.Print.
Siegel, Larry. Introduction to criminal justice.12th Ed, Wadsworth, USA: Cengage Learning, 2009.Print.
Williams, Katherine. Textbook on Criminology (6th ed), Oxford, UK: Oxford University Press, 2008.Print.
Footnotes
- Legal Aid Act is legislation within the Australian law that aims to enhance access to justice for all citizens.
- The commonwealth refers to the union body of all former colonies of the British rule in the world.
- Legal aid refers to the legal representation and services given to clients.
- Pro bono is a term that refers to free legal services offered to indigent citizens.
- Dietrich V The Queen (1992)2Customs Act 1901(NSW)
3Victorian Crimes Act 1958 (NSW)
4United Nations International Covenant on Civil and Political Rights (December 16th 1966) entered into force (March 23rd 1976)