The arm gets longer and help gets shorter
By Karen Fletcher
The federal budget cut to Legal Aid Commissions of $120 million over three years (from an annual budget of $138 million) will leave the majority of Australians with no means of defending themselves against legal proceedings brought against them by the state, or by the rich. Prior to the federal election, the Coalition's promised to maintain current levels of legal aid funding.
In order to target the cuts, the government has directed Legal Aid Commissions not to use any Commonwealth money to fund matters which arise under state laws. This includes the majority of criminal and civil law matters, and a large number of matters arising under industrial, anti-discrimination and administrative law. In addition, the government has severely restricted access to legal aid in immigration and family law — both areas of Commonwealth jurisdiction.
While legal aid for the public has been slashed, there have been no corresponding cuts to the legal resources of the federal government, or of state prosecuting authorities. Indeed, the budget of the federal government's own legal services branch received a 61.8% increase.
Simultaneously, the government's broader policies have increased ordinary people's exposure to harassment, intimidation and victimisation by the law. Under the "crackdown" on welfare recipients thousands of unemployed, pensioners and students are struggling to fill out impenetrable, legalistic forms, such as the "dole diary" and a 15-page Austudy application form.
The mind bogglingly intricate requirements of these forms, which in some cases require extensive information about entire families, combined with the inter-departmental information exchange and cross-matching made possible by computer technology, increase the exposure of all low-income people to the long, and often random, arm of the law.
Ignorance, as they say, is no defence. Even if it were, a person charged with receiving "overpayments" from the DSS because they did not understand the intricacies of the Social Security Act would have little chance of mounting a defence to prosecution without a few thousand dollars to deposit into the trust account of a private law firm.
Large numbers of Australian prisoners, particularly women, are serving sentences for social security fraud. Prisons are one of Australia's few growth industries — they fill up faster than they can be built, and new ones are constantly being built. Private "corrective service" companies from the US and Britain are making a killing out of Australia's incarceration boom.
But it is not only federal "offenders" who are swelling the ranks of the incarcerated. Every state election in recent years has been dominated by the "get tough on crime" law and order policies of Labor, the Coalition and even the Democrats. All the major parties have struggled to top each other with calls for more police, tougher sentencing laws and closer surveillance of young people and Aboriginal, ethnic and working-class communities.
So, while public money haemorrhages into policing and prisons, defendants are left to rot in police holding cells and remand centres without legal representation. On paper they are entitled to their day in court, but in reality they often don't understand the charges against them and are inclined to take the advice of the overworked duty solicitor (if there is one) who advises them, wearily, to plead guilty because "it's the cops' word against yours, mate".
Then, when they tell their story to the other inmates, or read up a bit in the prison library (if there is one) and belatedly discover a defence, they don't know which forms to file to appeal, can't afford the filing fee and can't get to court to file and serve the documents within the 28-day time limit anyway, because they are in custody. Oh well, private prisons get paid by the inmate, so profits will be up this month.
Even before these latest cuts, ordinary people had next to no access to legal remedies for breaches of industrial, consumer protection, anti-discrimination, administrative or family law. For most workers, welfare recipients, taxpayers and consumers, laws passed for their protection have been no more than leather-bound volumes of waste paper.
The right to sue a bank for a breach of the Credit Act means nothing if you can't afford legal representation. The right of a bank to repossess peoples' homes is guaranteed by the fleet of company lawyers constantly on call at head office.
With the last round of cuts to Legal Aid Commissions, aid in almost every area of the law, except criminal and family, was abolished. Community legal centres, trade unions and consumer advocacy groups were left to carry the load. With shockingly small resources (the centre in which I work has two solicitors to service the entire prison population of Queensland!) it was all these centres could do to run the occasional test case and write the odd, rushed, law reform submission between stress leaves.
Conditions at the Legal Aid Commissions are little better. The director of the NSW Legal Aid Commission, Mike Cramise, told a public meeting on September 12 that 12% of the commission's budget will be spent "bean counting" Commonwealth and state matters under the new system, and a significant proportion of staff time would be spent explaining to clients why their matter could not be taken on.
With the ever tightening hold of economic rationalism in public services, the amount of time lawyers and support staff spend recording and collating client "statistics" is also set to increase.
Is it any wonder that Legal Aid lawyers become infamous for recommending guilty pleas, when they can clock up 10 or more "stats" a day on pleas, but only one in a week or more if they take on a "messy" trial that challenges police evidence, and which they probably won't win?
But where can people go when they are turned away by Legal Aid? Community legal centres are already stretched beyond the limit. The budget inflicted a 3% "efficiency dividend" (read "cut") on centres, which will further reduce their capacity to take on the areas for which Legal Aid will no longer be available.
The $400 million devastation of ATSIC will largely be borne by Aboriginal Legal Centres, leaving the most-often-incarcerated people in Australia in an even more powerless and perilous position.
The Human Rights and Equal Opportunity Commission has already been gutted, and the Coalition proposes to do away with the Industrial Relations Commission.
Even the advice and information provided by government departments such as DSS have been targeted, leaving people listening to endless muzak on hold, only to finally be given wrong information by an overworked and under-trained "telephone information officer".
Civil rights, such as the right to a fair trial with adequate legal representation, have been hard won by centuries of agitation and organisation against repressive and authoritarian regimes. The women's movement has fought hard for anti-discrimination laws and reform of marriage and divorce laws. Workers have waged long battles for laws which provide some protection from rapacious employers, landlords, banks and businesses.
These gains are always under attack. One of the most insidious methods available under capitalism is merely to render the law too expensive to access. This is the way of the current Australian government.
The Australian Law Reform Commission recently announced an "Inquiry into the Australian Legal System". Unfortunately the ALRC, too, suffered a cut of half a million dollars a year for the next four years.