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LIV President's Blog 2012

LIV President's Blog 2013

Reynah Tang, LIV President 2013 on the latest issues and topics. Read and comment.

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Trying to 'budge it'

Trying to 'budge it'
The Victorian Coalition government’s 2013-14 state budget, released on Tuesday, is unfortunately a case of a band-aid solution for legal aid and the justice system. The Law Institute had been calling on the state government to make an immediate one-off $10 million injection into legal aid funding and then, via the budget, provide appropriate ongoing recurrent funding.
Instead the government has promised only $3.4 million a year over the next four years. The amount is paltry compared to that allocated to areas such as policing, PSOs and prisons, exacerbating the imbalance in the system.
A state in crisis
Victoria Legal Aid Managing Director Bevan Warner indicated in a press release that the funding would only allow VLA to “continue services at the level set by the introduction of our new eligibility guidelines”.  In other words, legal aid remains in crisis in Victoria.  Much of the reason for this is the government’s tough on crime policies. Tough on crime means more people charged with offences and greater demand for legal aid.
Effect of cuts could be catastrophic
When one looks more closely at the budget papers, especially regarding legal aid, it raises more concerns. Budget Paper 3 (p184-5) identifies a targeted reduction of over 3000 grants of aid, and a targeted reduction of over 8,000 duty lawyer services, on 2012-2013 figures. The reductions are explained by reference to tightened eligibility guidelines.  Because grants of aid in the Magistrates Courts have been restricted to cases where immediate custody is likely, the combined effect of these cuts will be very severe, if not catastrophic.
Not only is this gravely concerning in and of itself, it seems inconsistent with statements made by Treasurer Michael O’Brien on budget day that the additional money granted to legal aid in the budget would fund “additional case work and duty lawyer services.” 

Changes to VLA funding guidelines
At roughly the same time as the Treasurer rose to his feet to deliver the budget in parliament, news arrived regarding temporary changes VLA has made to its funding guidelines for indictable criminal matters. As members will recall, from January, VLA had restricted funding for solicitors to appear in court for complex indictable criminal matters to only two half days.  This change was introduced without consultation with the profession

The LIV immediately raised its concerns with VLA that the funding was woefully inadequate and would lead to unfair trials. 
VLA did not budge. In February, the LIV took the extraordinary step of intervening in the matter of Victoria Legal Aid v MK before Justice Terry Forrest in the Supreme Court. The LIV argued that the VLA guideline limiting the presence of instructing solicitors to only two half days in court was inadequate and would lead to an unfair trial. Justice Forrest agreed and the trial was stayed. VLA eventually provided funding for a second counsel and the matter proceeded. At about the same time as MK was before the courts, the matter of Chaouk was before Justice Lasry in the Supreme Court. Justice Lasry also stayed the trial because of concerns about an unfair trial in the absence of an instructing solicitor. In light of these decisions, we sought to negotiate workable guidelines with VLA, but to no avail.

The Director of Public Prosecutions then applied for leave to appeal the decision in Chaouk out of time.  He argued that the effect of the VLA’s decision not to fund an instructing solicitor or second counsel made the stay permanent. On 2 May, the Court of Appeal upheld Justice Lasry’s findings and dismissed the appeal. It was only following the Court of Appeal decision that VLA finally listened and announced temporary changes to its funding guidelines in relation to solicitors in complex indictable crime matters. It will now fund instructing solicitors in complex indictable crime trials ‘as and when required’.

Federal funding is also required
Of course, as State Attorney-General Robert Clark has been at pains to point out, the legal aid crisis is not just a state issue.  As I have previously observed, there are major concerns in relation to the denial of representation for vulnerable parties in family law matters, as well as stresses on the system caused by a government focus on domestic violence.  The Federal government ought to shoulder its fair share of this burden.

The Federal Budget is next week and the LIV is looking to the Labor Party to reflect its core values and return its contribution to the funding of the legal aid system to 50 per cent, as it was prior to 1997.

Whatever the result, the LIV will maintain the pressure on both the state and Federal governments to return legal aid funding to appropriate levels.

QUESTION: What (minimum) standards of representation do you think indigent Victorians deserve?
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