LIV President's Blog 2012

LIV President's Blog 2012

Michael Holcroft, LIV President 2012 on the latest issues and topics. Read and comment.

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Changes to VLA guidelines - access to justice denied

Changes to VLA guidelines - access to justice denied
As of Monday, justice will became a lot less accessible to thousands of Victorians.

From 1 October 2012, most people who need legal assistance in traffic matters will not receive it.

Unless a person has a pre-diagnosed disability or psychiatric condition and that person is facing a term of imprisonment, they will either be left on their own or given limited access to a duty lawyer on the morning of their hearing.

Victoria Legal Aid (VLA) has, with minimal notice and no consultation, changed the eligibility criteria for legal representation for traffic offences.

VLA describes it as a “guideline amendment”. The LIV calls it a “denial of access to justice”.

This is a fundamental change in Legal Aid philosophy. Previously, the VLA test was based on whether a person’s conviction was likely to result in a term of imprisonment, either immediate or suspended. Now, if you are charged with a traffic offence, the likelihood of a person going to jail is irrelevant.

It is, in the LIV’s view, a dereliction of the VLA’s objective which is to provide to the community improved access to justice and legal remedies pursuant to s4[c] Legal Aid Act 1978.

Let’s consider a typical case.
Grace is a 27-year-old single mum. When her children miss the school bus she drives them to school despite her licence having been suspended by a Magistrate six months earlier due to a low reading drink driving offence. She gets caught. She already has two prior convictions for driving while suspended, incurred on different occasions over the previous three years.

This time in the Magistrates’ Court will be very different to her previous two appearances, when she was provided with a lawyer funded by VLA.

This time, Grace will either have access to a duty lawyer for 10 minutes if she is lucky or instead will be given a generalised fact sheet from the court telling her the type of things she might want to say to a magistrate in an unrepresented plea hearing.

In the latter circumstance, when her case is called by the clerk, this young woman with limited education and erudition, will be left to stand on her own before the magistrate to conduct her own plea in mitigation. The magistrate will need “the patience of Job” to draw out all the relevant plea material.

Grace being unrepresented, would add, not only to the magistrate’s frustration, but also all other court users waiting to be heard. Grace will not know all of what is relevant to the magistrate; she might well be overawed by the experience.

Even with 10 minutes to talk to the duty lawyer, Grace is likely to leave gaps in her instructions.

Without question, Grace will be bewildered and frightened as she answers questions she doesn’t understand and tries to makes sense of the situation.

Forgetting to give instructions, or tell the magistrate, of her personal circumstances will harm her case and may see her unnecessarily locked up. Factors such as the fact that her son has cerebral palsy or that her elderly mother, who lives 15 minutes from home, is in her care.

If she is given a jail term, she will not have a proper understanding of her right of appeal, or how to conduct an appeal bail application.

If Grace is fortunate enough to gain access to a duty lawyer, she will be limited to only a matter of minutes to convey her circumstances to her court based representative.

Pressure on the criminal justice system
Duty lawyers are already under immense pressure to deal with a wide range of cases on a daily basis that are increasing both in number and in their level of seriousness and complexity. There will be no time or opportunity to properly investigate potential defences or to obtain plea material that may be significant in persuading a Magistrate that there is a realistic alternative to immediate imprisonment.

In Grace’s case, references as to her previous good character and personal circumstances, or medical reports from her mother’s doctor confirming her need of care and Grace’s role in that, will simply not be able to be obtained by a duty lawyer who has a queue of people waiting to see them each day. 

Where a person’s liberty is at stake, it is reprehensible that they should be hurried through the system purely as a so-called cost-saving measure.

The rule of law in relation to sentencing can only function where all matters are before the court. Where resources are stretched and additional time with a client is unavailable, the court could not be considered to be abreast of all the necessary materials allowing for appropriate sentencing. The resulting injustice, particularly where a person may be unnecessarily imprisoned, is untenable.

Expected to work in this way, duty lawyers themselves may be breaching their professional obligations under the Professional Conduct and Practice Rules 2005 by not attending to the work with competence, diligence and by taking on a matter with insufficient time to do it justice. This is likely to diminish public confidence in the legal profession.

I think LIV members will agree that this “guideline amendment” doesn’t make sense.

False economy
We understand that VLA justifies the change of rules as a necessary cost saving measure. But it is a false economy. The change will result in more people charged with traffic offences being sentenced to immediate terms of imprisonment, further clogging up our already over-stretched prisons.

The Productivity Commission Report of 2012 indicates that a three to six month jail term costs Victorian taxpayers between $29,500 and $59,000.

It will also result in more appeals to the County Court and more appeal bail applications in the Magistrates’ Court. This will in turn impact on the functioning of the courts, and an increased involvement of the Office of Public Prosecutions, the cost of which will come out of the same public purse that VLA is intent on sparing.

In going ahead with the amendment, the VLA seems to be ignoring its own research. Price Waterhouse Coopers has calculated that for every $1 spent on legal aid, $1.68 is saved down the track.

The country accused charged with careless driving who has no access to public transport and loses their licence because of inadequate representation, for example, is likely to be back, charged with driving while disqualified, causing further expense to the police, courts, duty lawyer service and, if imprisoned, the state.

The LIV has written to the Attorney-General Robert Clark, chairperson of VLA Andrew Guy and managing director of VLA; Bevan Warner, imploring the VLA to suspend implementation of the new guideline so that the LIV and the Victorian Bar can together discuss these matters with VLA.

The LIV has received no positive response to these calls.

A devastating impact on criminal justice
I reiterate the main points of the correspondence with members here. The LIV submits that these changes will have a devastating result on criminal justice in the following ways:

  • Greater number of appeals, appeal bail applications, associated costs and court delay.
  • Increase in the number of people going to prison, and therefore cost to the community.
  • Increased pressure on duty lawyers.
  • Loss of confidence in VLA.
  • Widespread injustice.

Even one of those effects makes taking these changes off the table worthwhile.

More VLA funding required
The LIV, which has enjoyed and valued a close working relationship with VLA, well appreciates the financial pressures on the largest criminal defence practice in Victoria.

In our letter to the Attorney-General, we ask – again – that the state government provide urgent additional funding to VLA to remove the need for these changes to the traffic eligibility guidelines for assistance.

For the sake of the justice system, the LIV strongly urges VLA to suspend its tightening of eligibility guidelines relating to traffic offences, at least until proper consultation can take place and alternatives can be fairly considered.

The LIV is also drafting letters that members can use to help lobby their state and federal MPs to increase their legal aid spend in the hope that the “Graces” of our community will receive a proper level of legal service.

Tell us - what do you think will be the impact of these changes?

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Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

Deb Leonard, Leonard & Associates
As a firm that regularly provides duty lawyer services and undertakes a significant amount of legal aid work, I also feel strongly about this matter.

I note Saul Holt's comment that "anyone who is facing a risk of prison is a priority for our duty lawyers". The Duty Lawyer Guidelines are in conflict with this statement. The Duty Lawyer Guidelines provide that priority is to be given to people:
"- with an intellectual disability, an acquired brain injury or other mental health issue;
-who are experiencing homelessness;
-who cannot effectively communicate in English; or
-who identify as Indigenous Australians".

The guidelines imply that people facing imprisonment are not a priority, but are, nevertheless, eligible to be represented by the duty lawyer (subject to meeting the income test).

I am happy to hear Gavin Green's comment that "we do not impose a time limit on our duty lawyer service". The new forms for Duty Lawyer's to complete about each client are so comprehensive that at least 5-10 minutes needs to be taken obtaining the client's details and financial circumstances before instructions can be taken about the offence. However, overall, this seems a waste of resources.

Also, I note that although VLA does not impose a time limit, they only pay for a maximum of 6 hours of duty lawyer time.

Of major concern, is that many regional and rural Courts do not have a duty lawyer available every day. For example, Wonthaggi is only scheduled to have a duty lawyer available every third or fourth Court hearing day. I query what would happen to “Grace” if her matter was listed on such a day, particularly if her file has been marked "no further adjournments".

I agree with the statement that the cost savings are a false economy. The cuts mean a significant more amount of court time will be required to deal with self-represented parties, duty lawyers will take significantly longer at court due to the delays, and having to deal with significant matters on the day, more adjournments, increase in the number of appeals, clogging of prisons, and the list goes on...
5/10/2012 1:45:27 PM

Michael Brett Young
The real issue here is obtaining sufficient funds for VLA to meet the expectations of the community. This is the time for VLA and LIV to work together to push Government for adequate funding.
28/09/2012 10:02:24 PM

Saul Holt, Victoria Legal Aid
"Pondering bystander" - I would have thought that the issues raised here are important enough to mean that no-one should hide behind an anonymous name.

The most important thing to do is reject as offensive the idea that VLA - or anyone who works here - thinks that any vulnerable person in the justice system doesn't matter. They are the very reason we are here. The reality is that we have to make decisions between competing and acute need all the time. And to say it again - we are more than criminal law - we are family law, family violence, debt, tenancy, mental health and disability advocacy, refugee law, child protection, anti discrimination and so on and so on.

It is also important to understand that anyone who is facing a risk of prison is a priority for our duty lawyers who are highly skilled and effective.

Our New Lawyers Program is not a luxury nor a 2 year training junket. It is simply a smart way to bring very high quality lawyers into the organisation and train them in a coordinated rather than ad hoc way. From day 1 they are in offices and courts and tribunals acting for clients. By being required to rotate through regional locations and different areas of law they become really good legal aid lawyers. We could go back to recruiting junior lawyers on an ad hoc basis but that would be backward looking and ultimately reduce both efficiency and quality.

The Trial Counsel Development Program - if we can maintain it for even 5 years - will see more than 80 junior counsel better prepared and trained to run legally aided cases. It is a program targeted at medium and long term change. Legally aided clients and the system will function better through well run trials.

When times are tough everything needs to examined. Your comments suggest that VLA's internal costs are immune from that. That is simply wrong as anyone who works here at the moment will attest.

However, to simply end things like the New Lawyers Program and the TCDP would be short sighted and ultimately cost more.
28/09/2012 6:56:54 PM

Bevan Warner
This conversation highlights the difficult task of making choices. If a "windfall'' million dollars was gifted to the LIV to be used on publicly funded legal assistance I wonder how the Administrative Law and Human Rights section, Family law section, Criminal law section, Elder Law and Workplace Relations sections, to name a few, would collaborate and what framework they would use to come up with recommendations to the LIV Council, on how to spend this limited amount of money wisely and for the greatest public good. PS I think dereliction was a bit gratuitous.
28/09/2012 5:29:07 PM

The Pondering Bystander
There is no doubting that VLA provides much needed assistance to disadvantaged members of society.

However, where funding is finite and times are tough maybe VLA need to thoroughly consider their internal costs.

Legal Aid Queensland faced serious funding issues between 2007-2009. One of the many tough decisions they made was to suspend their graduate recruitment program. This program has still not returned to operation.

VLA continues to fund such items as their New Lawyers Program. An expansive 2 year program for lawyers who have already completed post-graduate training (e.g. PLT) and are admitted to practice (or at the very least eligible for admission prior to commencing the program). This 2 year luxury is one that many other government departments and statutory authorities do not have, and certainly not one afforded to young lawyers in private practice.

Then there is the training and career assistance available for the chosen few allocated to the Trial Counsel Development Program.

This would seem an awful lot of money to spend where there is apparently no guarantee that the young lawyers, nor the junior trial counsel will continue to work with, for, and in the legal aid sphere.

How can VLA justify this over the assistance that should be given to people facing charges in court.

Or does the largest criminal defence firm in Victoria simply believe that some accused before the court actually don't matter?
28/09/2012 5:29:04 PM

Michael Brett Young
Thanks for your comment Kristen. Let me reiterate that we applaud the work that VLA does in a myriad of legal circumstances, but the LIV believes that all legal situations, including traffic offences leading to jail time, are significant, and that we need increased funding to cover all bases for all vulnerable Victorians.
28/09/2012 4:44:09 PM

Kristen Hilton, Director, Civil Justice, Access and Equity, VLA
I’m the Director of Civil Justice, Access and Equity at Victoria Legal Aid.

Earlier this month our migration lawyers secured Australian asylum for a Chinese man who had been involved in peaceful anti-government demonstrations in his home country. He had spent 9 months in a Chinese prison where he was interrogated and tortured.

We settled a case for a young disabled man who for a number of years had requested without success that his building manager install a lift so that he would be spared the indignity of asking his mates and his Mum to carry him up flights of stairs.
After two years of sustained advocacy we wiped a $180,000 debt that Centrelink had erroneously charged against a couple of elderly and frail pensioners.
Last week our VCAT duty lawyers saved a schizophrenic man from homelessness. The man was living in a rooming house and had a possession order granted against him on the basis he was a danger to other residents. The order was granted in his absence while he was receiving hospitalised treatment for his condition. Our lawyers intervened and the possession order was overturned.
In one day before the Mental Health Review Board we secured the release into the community of three people who had been involuntarily detained in psychiatric facilities, one of whom had received electro convulsive therapy right before their hearing.
This is part of the vital work that our organisation does on a daily basis.
You can’t talk about access to justice without considering the whole picture, without acknowledgment of the myriad legal issues that people face and without a realisation that homelessness, deportation, crippling debt or involuntarily detention can be just as significant as a short term jail sentence.
It is only right that considerations of vulnerability, priority, consequence and the utility of the intervention come into play when VLA is making decisions about the best way to deliver our range of services across Victoria.
28/09/2012 4:15:37 PM

Judy Small, Director, Family Youth & Children's Law Services, VLA
Changes to the traffic guidelines are made in the context of a very real, ever-growing and pressing need for help with family law problems. There has been, for example, a 47 per cent increase in the number of family violence intervention order applications in the Magistrates’ Courts in the past five years. Every week we are called upon to assist large numbers of women and children affected by family violence whose lives have been devastated by the emotional betrayal that violence evinces, not to mention its physical and psychological toll.
We’re also responding to a marked increase in child protection matters on behalf of children who have been removed from their families. They are traumatised, afraid, and confused by court proceedings.
Just this week in the Family Court we represented children in a case where allegations of child sexual abuse are being made and the children are confused and torn between needing to be safe and wanting to keep their relationships with both their parents.
Achieving the right balance of support and help for all these many different people and their urgent legal problems that could benefit from legal aid is a continuous challenge.
28/09/2012 4:13:25 PM

Katrina Koniuszko, Policy Lawyer, Family Law, Collaborative Practice, International Law and Workplace Relations Section, Law Institute of Victoria
The LIV expresses its disappointment that Victoria Legal Aid has provided limited notice and failed to actively consult with the legal profession regarding these 'guideline amendments'. VLA has sidelined the LIV rather than adopting a collaborative approach for the benefit of those who require access to justice.

With reference to Gavin Green's comment, "... VLA has to make tough decisions about whether it is more important to fund someone who is on their third drink driving charge, or a 10 year old at the centre of a child protection matter ..." the LIV notes that these "tough decisions" have also been made by VLA recently to financial assistance provided in Interim Accommodation Orders. On 14 August 2012, VLA distributed formal correspondence to legal practitioners who practice in the Children’s Court. In that letter, VLA advised the following:

“From 1 September 2012 VLA will limit assistance to a maximum of four IAO hearings and four adjournments per grant of aid in State Family cases unless costs orders are sought and granted against another party, for example the Department of Human Services, for causing the adjournment. We will fund three Directions Hearings. Where there are secondary interim applications, i.e breach applications, a further two IAO hearings and two adjournments will be allowed..."

On 22 August 2012, VLA published the new policy on its website. Notwithstanding the formal correspondence and the online publication, VLA also failed to consult with the legal profession prior to implementing their policy. Furthermore, the legal profession were provided with limited notice in which to consult and/ or object.

Whilst the financial changes to Interim Accommodation Orders have already been implemented, time still remains for VLA to actively consult with the LIV regarding the 'guideline amendments'.
28/09/2012 3:35:57 PM

Michael Brett Young
Thanks for your comment Gavin. While we do not doubt the skill and proficiency of VLA lawyers, the LIV believes that proper representation of people facing severe penalties requires a lawyer to be prepared to the best of their ability, including meeting with their client and preparing before their day in court. We believe that VLA and the LIV should jointly lobby government for extra funds which would enable representation for all who need it, particularly those facing jail time.
28/09/2012 3:11:07 PM

Gavin Green, Acting Director, Criminal Law Services, VLA
While we understand LIV’s concerns, there are many misconceptions and inaccuracies being floated here about the impact of the new guidelines.

It is simply incorrect that people will be left to their own devices in traffic matters or that most people who need legal assistance will not receive it. Anyone facing imprisonment will still be represented in court by one of our experienced and capable duty lawyers, or a lawyer in private practice, depending on their circumstances.

To take the example of ‘Grace’, under the new guidelines, she would still be represented in court, as people facing a jail term will still be a priority for help from our duty lawyers.

Our lawyers would take the time to assess her circumstances and after hearing her story and establishing she was at risk of imprisonment, take the steps needed to represent her interests strongly and professionally. If further information was required to explain her circumstances to the court and this information would make a real difference to the outcome, this would be obtained before the case proceeded.

It is disappointing that your blog seems to underestimate the skill of duty lawyers. Our duty lawyers are highly skilled advocates - we have every confidence in the capacity and ability of duty lawyers to help people with their legal problems.

In fact, our duty lawyer service’s help and professionalism is very well-regarded by people who use it, with our recent independent client satisfaction survey showing that 85 per cent of duty lawyer clients were satisfied or extremely satisfied with their service.

Whilst demand for our help is high, we do not impose a time limit on our duty lawyer service. Some people only need 10 minutes with a duty lawyer – some people need a lot longer. Our approach is about directing help to those most in need because of the seriousness of the charge or the complexity of their needs.

This change responds to the reality that in low level traffic matters where the penalties are set, having a lawyer stand up for you in court makes absolutely no difference to the outcome. Appearing for everyone is not the most effective use of time or finite resources and is the cause of much unnecessary delay currently experienced in the Magistrates Court.

In administering taxpayers’ money effectively, VLA has to make tough decisions about whether it is more important to fund someone who is on their third drink driving charge, or a 10 year old at the centre of a child protection matter, or pensioners about to lose their house.
28/09/2012 2:18:03 PM

Hugh Middleton
Thanks for picking up this issue Michael, I couldn't believe it myself when I got the news, I appreciate the coverage you have given this.

Regards Hugh Middleton.
28/09/2012 1:36:35 PM

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