‘Nation’s great shame’: most vulnerable turned away from neglected legal aid

A woman seeking a Family Violence Order to protect herself and her children from a violent ex-partner. A migrant family beginning a new life in Australia being forced to pay above market rent or face the threat of unlawful eviction.

A young minimum-wage worker being denied employee benefits by an unscrupulous boss. A victim of bureaucracy who has had a social security payment unjustly decreased or ceased due to an administrative error.

These are the people experiencing significant vulnerability, need, hardship and stress that turn to our legal assistance services for help each and every day. Our legal assistance sector – legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and family violence prevention legal services – is designed to be there for members of our community in times of need.

But, to this nation’s great shame, this sector is chronically underfunded and unable to meet an ever-increasing demand. Services have no choice but to turn clients in desperate need away. As highlighted by the recent final report of the Independent Review of the National Legal Assistance Partnership (the NLAP report), the legal assistance sector is heartbreakingly hamstrung by a decade of funding neglect.

This means many Australians facing the greatest need for assistance are having to walk away from legal battles to assert their rights, or represent themselves – which can delay and even deny their access to justice. In the worst-case scenario, it can put their livelihoods and lives at risk.

Alarmingly, much of the funding our legal assistance services do get is set to expire in 12 months and there is currently no guarantee from our Commonwealth and state and territory governments that it will continue, yet alone be increased in line with the recommendations from the NLAP report.

Imagine being a business trying to operate in an environment where you do not know if your income will continue. Community legal centres, faced with this uncertainty, are beginning to consider a hiring freeze or even laying staff off. Many workers, who are in this sector because of a passion to make the law more accessible, will have no choice but to look elsewhere because contract extensions are unable to be guaranteed.

Without funding certainty, these are the decisions legal assistance services are having to make right now. As community legal centres make the strategic decision to contract their services, rather than grow and expand, demand will further outstrip supply.

While we have long warned governments this abyss was looming and have striven to convince them to bridge the resourcing gap, intervention is now urgent. This week, the legal profession has come together to call on all governments to work together to prioritise support for our legal assistance sector. Governments have an easy-to-follow blueprint, thanks to the NLAP report, and the need that exists in our community is undeniable, especially in under-resourced locations, such as regional, rural and remote areas.

Legal assistance services cannot wait until next budget to know how much, or how little, their work is valued by our governments. In an open letter published this week, we have demanded the Commonwealth, states and territories meaningfully partner with the legal assistance sector to progress the NLAP report’s recommendations.

These recommendations are targeted towards a greater investment in the legal assistance sector, ensuring better justice outcomes for First Nations peoples, supporting the long-term capabilities of those in the legal assistance workforce, and improving data collection to support evidence-based decision-making moving forward.

Legal assistance services are at the frontline of some of our nation’s biggest challenges, and we cannot forget they are underpinned by the private legal profession, which takes on approximately 72 per cent of approved legal aid grant cases. The private legal profession undertakes this work, despite receiving appallingly low rates of compensation for this increasingly difficult and complex work.

This state of play cannot be expected to continue and must be resolved as a matter of urgency, in line with the NLAP report’s findings. The next legal assistance partnership agreement cannot simply paper over the cracks in our system. Transformational change is required – and required now – to give these vital services the stability and certainty they need and deserve, and to ensure that access to justice is facilitated for all.

Greg McIntyre SC is president of the Law Council of Australia

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