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From the president: Fair funding needed now

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Cite as: (2008) 82(10) LIJ, p. 4

Upcoming reviews of legal aid funding in this state are long overdue.

In the coming months, the federal and Victorian governments will review legal aid arrangements at both

a national level and a state level.

The Standing Committee of Attorneys-General will also review the requirement that federal legal aid funding be used only for federal law matters, a vestige of the Howard government years.

These reviews are long overdue.

Victoria receives from the federal government markedly less in legal aid per head of population than all other states and territories throughout the country.

In the year ended 30 June 2007 we received from the federal government $6.22 per head of population, compared with $7.23 for New South Wales, $8.21 for Queensland, increasing to $17.77 in the Northern Territory. It is just not fair.

It is a sad fact that over the past decade or more we have seen the gradual impoverishment of legal aid in this state.

The problem is most acute in the criminal law area and if left unaddressed will entrench the current position where some of the most marginalised and disadvantaged members of our community are further disadvantaged in the criminal justice system.

It is a basic principle that the criminal justice system functions most efficiently and fairly when each of its four limbs (the police, prosecution, defence and judiciary) are properly funded and operating at an optimal level.

When there is a marked disparity in funding, when one of the limbs falls far behind, the effect is felt throughout the system. That is precisely what is happening in Victoria now.

It used to be the case that legal aid fees for practitioners in the criminal justice system were set at about 80 per cent of fees charged to private clients. This reflected the preparedness of criminal law practitioners to perform work at a discount - if you like, an entrenched pro bono philosophy.

But with slippage, cuts, delayed increases and other imposts we are now far, very far indeed, from that model.

Recent research commissioned by the LIV shows that in comparison with fees typically charged in private practice the fees paid by Victoria Legal Aid (VLA) are significantly less than 80 per cent of private rates.

In the Magistrates' Court jurisdiction, where, according

to the Productivity Commission, some 96.5 per cent of criminal matters are dealt with, VLA rates range between 15 per cent and 25 per cent of average private fees.

The situation is made worse because for some years Victorian practitioners doing legally-aided criminal law work have been required to absorb much of the work of administering legal aid grants as a consequence of

VLA devolving, without additional remuneration, the internal grants administration task that it previously performed inhouse.

So the current position is quite simply unacceptable.

You start with a 20 per cent discount off the going rate. You fail to adjust over time as other costs of the profession increase remorselessly. You increase the management responsibility for this already discounted work. And all the while the complexity of procedures in the courts increases.

The net result is hardly surprising.

Senior practitioners choose not to do legally aided work as their experience is not respected in any way and the fees are insulting.

So we find ourselves with a system where legally aided work is becoming the sole province of junior solicitors working with limited supervision.

This is wrong in many ways. It is not fair that junior solicitors have to take on so much responsibility, and this system has implications for the quality of justice that is delivered to Victorians and the efficiency of our courts and justice system as a whole.

Clients in the criminal justice system are entitled to much better and our members who represent them are also entitled to much better.

There is only so far that VLA and the governments which fund it can impose on the goodwill of our members.

That point was reached and breached long ago.

Tony Burke president@liv.asn.au

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