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

Clients may be diverted into dispute resolution mechanisms that are inappropriate for their kind of case, for example because domestic violence has been present.
  
Defendants charged with summary offences (ie, charges triable only in the magistrates’ court) who believe they are not guilty find it practically impossible to obtain legal aid. This means they must either plead guilty to the charge or must represent themselves. In cases where the Defendant can elect whether to be tried in the magistrates’ court or District Court, some clients are deliberately choosing the District Court, where the maximum penalties are higher, because legal aid is available for their defence.

Defendants in criminal matters are particularly disadvantaged, when compared with the prosecution or a privately funded defendant in the same position, by the limited resources available for investigation, scientific tests and expert advice.

Litigants in person (i.e. unrepresented parties) are apparently increasing in number in all Australian courts. It is clear that the reductions in legal aid are a significant cause of the increase.

They are at a significant disadvantage when compared with a legally represented opponent or with a represented person in an otherwise identical situation.

Litigants in person are less likely to have an objective view of the strengths and weaknesses of their position; to prepare adequate or relevant documentation; or know how to prepare and run a trial. They may be unable to negotiate an appropriate settlement, or to be able to talk persuasively about their own psychological state or condition.

In terms of remuneration we think that the system may be moving from crisis to calamity. Many solicitors feel that while they are motivated by altruism to the needy reliance on their generosity has gone on for too long with no end in sight. If more of them start costing their time ruthlessly and assessing what they really want out of life, given the legal qualifications they spent years acquiring, we think the flight will become a stampede.

The lack of legal aid funds to pay adequate fees should be contrasted with the situation where governments wish to purchase legal services for their own purpose, in which case they are prepared to pay more both on an hourly basis and for the amount of preparation..

More resources need to be devoted to the system if a reasonable equality of opportunity is to exist between Australian citizens in litigation over family breakdown or criminal proceedings. More effective and efficient methods of delivering legal services to those in need may well exist but going too far down that road will open up other disparities between the choices available to private parties and those with few means.

The legal aid system is being floated by a mixture of the profession’s goodwill, the inadequate access to information of clients, and uncertainty about their own motivation and best interests. This seems a very flimsy foundation for a system of civil and criminal justice.