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Legal aid cuts threaten poor, working class

By Stuart Russell

The commission recently ceased funding victim compensation matters, committal hearings and retrials when a first trial results in a hung jury. Following an 18% funding cut, the latest draconian measures will be introduced early next year. Legal aid will then no longer be available to:

• tenants for proceedings in the Residential Tenancies Tribunal, such as evictions;

• people wishing to be represented at coronial inquests;

• unfair dismissal matters before industrial relations courts;

• appeals against criminal convictions before the District Court, which hears the great bulk of criminal cases;

• anti-discrimination actions;

• bail applications in the Supreme Court.

The commission will also refuse to fund "expensive" criminal trials, and will slash the fees it pays to private lawyers in legal aid cases. All least 14,000 people will be affected by the cuts. The vast majority of them will be the poor, women and the working class, for it is these sectors which are disproportionately forced to rely upon legal aid.

Funded by ATSIC, which also has been hit hard by federal cutbacks, the Aboriginal Legal Services will have to cut their services, to the detriment of Aboriginal people. This will contribute to an increase in Aboriginal deaths in custody, which are at an all time high.

Other state and territory legal aid commissions are considering similar measures to respond to the federal cuts, as well as introducing compulsory fees to be paid by clients.

The community-based criminal justice coalition Justice Action condemned the recent federal budget as a "recipe for full jails", and for "state oppression of an underclass that has to rely on its own initiatives to survive". They predict an increase in the number of people on remand and a greater number of incarcerations, due to the absence of legal representation. Not knowing how to argue for their own release, unrepresented accused persons will be more prone to be denied bail.

Appearing in court on bail applications before the Supreme Court, already a daunting experience, will be transformed into a nightmare. Withdrawing legal aid from criminal appeals will result in unjustly convicted people and those suffering miscarriages of justice languishing in jail.

More remands and incarcerations will put added pressure on a jail system which is already suffering from severe overcrowding. It will lead to the construction of more jails — particularly private ones, which provide inferior quality of services. All of this will further fuel the "law and order" lobby and cause further hardship to those who are already suffering from other aspects of the federal government's cutbacks.

Since tenants will no longer receive legal aid before the Residential Tenancies Tribunal, there will be an increase in evictions, which will lead to greater homelessness. Withdrawing legal aid from unfair dismissal matters will incite employers to unfairly sack workers, who will be in an even weaker position before industrial relations courts than before.

These measures will result in greater hardship for those who are already disproportionately shouldering the brunt of the federal government's cutbacks. The middle and upper classes, which have the necessary financial resources to purchase legal services, will not be affected.

This is only the latest episode in an ongoing saga involving the chipping away of the right to legal aid. For the past decade, legal aid funding in this country has been inadequate, and has been getting worse due to a relentless withdrawal of funding.

Established a little only 20 years ago, legal aid was regarded as a hallmark of the hallowed notion of access to justice, which has come to be regarded as synonymous with ideals of due process, equality and the rule of law. It was designed to afford a minimal protection for the poor and the working class.

But it was always conceived as a privilege, not a right, despite the fact that the High Court ruled in 1992 that anyone charged with a serious criminal offence must be represented. As a mere privilege, it has suffered badly from the decline of public welfare measures. But the most recent restrictions threaten its very existence.

In January 1993 the NSW Legal Aid Commission started to refuse people not charged with a criminal offence or involved in a family law dispute. But in October 1993 legal aid was restored in a limited range of civil cases after enormous public pressure.

Similarly, in early November 1996 legal, church, social justice, pensioner and Vietnam veterans groups met to mobilise a campaign against the most recent legal aid cutbacks. This is an encouraging development. However, legal aid needs not only to be defended, but also to be extended and established as a basic right.

Another campaign like the one in 1993 — involving the poor, prisoners' groups, tenants and trade unionists — will be needed to roll back these cutbacks. Radical and progressive lawyers, law students and legal academics must also join this crucial battle for the survival of legal aid.