The Impact of Changes in Legal Aid on Criminal and Family Law Practice in Queensland

In the period March-June 1998 we analysed legal aid in Queensland by interviewing 35 practitioners, judges, Legal Aid staff and community legal centres and surveying the literature and available statistical information.

The research was essentially qualitative not quantitative.

Over the last 5 years the Queensland Legal Aid system has been characterised by a growing gap between government funding and the demand for funds. There has also been a divergence between the remuneration paid to lawyers by Legal Aid Queensland and what can be earned from private clients.

Governments have attempted to deal with some of the financial demands by imposing priorities, guidelines and performance targets, and the Commonwealth has introduced "capping" to put a ceiling on the legal aid allocated to a case.

Legal aid has also virtually been withdrawn from matters such as property disputes between divorcing parties and defended criminal matters in the magistrate’s court. As a consequence there has been a marked increase in the number of litigants in person and unrepresented defendants.

Over the same five year period the number of practitioners in Queensland who take on legal aid matters has reduced by 60% as a consequence of a "preferred supplier scheme".

There has been a "flight" from legal aid work by experienced family law solicitors in Queensland. A significant number has consciously abandoned offering legally aided services altogether. Many firms made a final decision to stop doing this kind of work with the introduction of the preferred supplied scheme in 1997. We also found that most of the experienced solicitors still doing legally aided family law intend to "scale back" the amount they take on in the future.

Amongst family law practitioners there is generally felt to be an increasing need to delegate legal aid work to more junior lawyers because the legal aid rates are too far below the normal "charge-out" rate of experienced practitioners.

Similar trends are evident in criminal law but the tendency there has been for a smaller number of firms to specialise in criminal matters and to do legally aided cases in high volumes as the only way to make it pay. "Juniorisation" is also in evidence in criminal law.

Overall, the changes have been to the disadvantage of those clients who are still covered by the legal aid scheme and those who, but for the changes, would have been granted legal aid.

Clients have fewer choices than a privately funded counterpart. For example, legal aid is not available for certain matters, such as using a barrister at an interim hearing in a dispute about residence of or contact with children. Legal advisers are limited in the reports they can commission or expert witnesses they can use. The pool of experienced practitioners willing to take on a legal aid case is diminishing.

As a result of fixed fees and capping, practitioners have limited time to prepare a case for a legally aided client. A private client with sufficient means might pay for between 2 and 4 times as much preparation.