Australian lawyers commitment to pro bono work cannot plug the gaps in legal assistance sector caused by federal government budget cuts

Medianet Release
23 Mar 2017 11:44 AM AEST - Australia's legal assistance sector facing Federal Budget disaster, and pro bono cannot plug the gap The average Australian lawyer is contributing a full week of work every year for free, but even this is insufficient to fix Australia's legal assistance funding crisis, which is set to dramatically deepen after the upcoming Federal Budget. Law Council of Australia President, Fiona McLeod SC, has told the sixth National Access to Justice and Pro Bono Conference in Adelaide today that although the crisis in legal assistance funding had been getting steadily worse over two decades, drastic cuts to take effect from 1 July this year will be particularly disastrous. "Scheduled funding cuts to Community Legal Centres (CLCs) will amount to a loss of $35 million between 2017 and 2020 – that's a 30 per cent cut to Commonwealth funding for services that are already chronically under-resourced," she said. "Last year CLCs were forced to turn away 160,000 people seeking legal assistance. These cuts will lead to 36,000 fewer clients assisted, and 46,000 fewer advices provided. "We are talking here about real people, with real problems. People who thought their situation was serious enough to seek legal assistance. People who would not have had other viable options for legal advice. "How many of those turned away now have exacerbated problems? How have those problems spread within their families, their social networks, their communities? "The Productivity Commission has called for an extra $200 million for legal assistance, because research shows these problems cost the economy long-term. Legal problems are a lot like medical problems – without prompt attention they tend to get much worse. "The Government needs to listen to the experts and reverse these catastrophic cuts." Ms McLeod noted that pro bono cannot ever be a substitute for properly funded legal aid services, remarkable though this contribution of Australian lawyers is. "The pro bono work undertaken by Australian lawyers should be a matter of enormous pride for the profession," Ms McLeod said. "Australian lawyers give away literally hundreds of thousands of pro bono work hours every year to those who have no one else to turn to. 35 hours of pro bono legal services, per lawyer, per year. "But if pro bono is to be truly effective it needs a strong legal assistance sector. Aboriginal and Torres Strait Islander Legal Services and CLCs assess cases and refer work to appropriate pro bono lawyers. Without proper funding this link is broken and many more people fall through the cracks." You can access the Law Council President, Fiona McLeod's speech here. To learn more about the legal aid crisis visit: www.legalaidmatters.org.au.
Contact Us	© Australian Associated Press, 2017

Australian Attorney-General Senator George Henry 'Soapy' Brandis finally obeys the court

For these reasons I consider that the decision communicated to the applicant by letter dated 13 June 2014 that a practical refusal reason exists because the work involved in processing the request(s) would substantially and unreasonably interfere with the performance of the Attorney-General’s functions should be set aside and, in lieu thereof, I decide that no practical refusal reason under s 24 of the FOI Act exists in relation to the request(s), with the consequence that the request(s) are required to be processed in accordance with the FOI Act. [Dreyfus  and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 , 22 December 2015]

With Australia’s British High Commissioner Alexander Downer not due to step down his post until around April 2018 and no other acceptable option to mothball the Attorney-General in sight, I fear that Australian voters will have to put up with the undistinguished legal mind Senator George Henry ‘Soapy’ Brandis until at least the next federal general election due sometime between August 2018 and May 2019.

Right now he is probably acting like a bear with a sore head in the corridors of power as, once he was forced to obey legal judgment, his diary entries appear to confirm that he never bothered to consult with any legal assistance services before he took a razor to government funding to that sector.

The Guardian, 20 March 2017:

George Brandis has finally released his ministerial diary and it shows no evidence he met with anyone working in the community legal sector before their funding was cut in the 2014 budget.

He handed his electronic diary to Mark Dreyfus, the shadow attorney general, late on Friday.

It took three years for him to release his diary after Dreyfus made his original freedom of information request.

The move came a week after Dreyfus threatened Brandis that he would push for contempt of court proceedings if Brandis did not release the diary immediately.

“Three years since the original freedom of information (FoI) request was made, and thousands of taxpayer dollars later – George Brandis has finally handed over his diary,” Dreyfus said on Monday.

“While the capitulation represents a victory for common sense, transparency and the principles of FoI, it is also ridiculous that it took such lengths to force the attorney general to comply with an act that sits within his own portfolio.

“In order for the attorney general to fulfil a simple request, it has taken an appeal to the Administrative Appeals Tribunal, a hearing in the full court of the federal court, and the threat of contempt.

“It is absurd, and it shows once more Senator Brandis’s unsuitability for the role of attorney general and his contempt for the rule of law.

Labor has been seeking Brandis’s diary since February 2014 to discover what consultation he held before cuts to his portfolio in the 2014 budget.

Dreyfus lodged an FoI request to inspect Brandis’ electronic diary from September 2013 to May 2014.

The Labor frontbencher has had a string of legal wins, with the Administrative Appeals Tribunal rejecting Brandis’s refusal of the request in December 2015 and finding it had to be processed. In September 2016 a full federal court decision upheld the tribunal’s ruling.

But less than two weeks ago, Dreyfus’s lawyers wrote to the Australian government solicitor accusing Brandis of “continued avoidance of his obligation to process” the FoI request because he still hadn’t released his diary.

The letter said that Brandis had had six months since the full federal court decision to process the request but “has continued to behave in a manner that is contemptuous” of the decision and the FoI Act.

It threatened if Brandis did not process the request by 20 March, Labor would seek a court order to set a deadline for the attorney general, after which it could begin contempt of court proceedings.

“No explanation for this delay has ever been proffered nor have we been given any reasons why the application has not been processed,” the letter said.

On Monday, Dreyfus said the saga – which cost taxpayers tens of thousands of dollars – had been a “monumental waste of everyone’s time”.

“What a waste of of taxpayers’ money, of public servants’ time, of the court’s time just because of – apparently – the attorney general’s vanity,” he told ABC radio.

He said it was notable there was no evidence in the diary that Brandis had met with legal assistance services, including Environmental Defenders Offices and Community Legal Centres, before cutting their funding in 2014.

In September 2014 the Productivity Commission found that the federal and governments needed to inject an extra $200 million a year into legal assistance centres to better align the means test, maintain existing frontline services and broaden the scope of legal assistance services; with the majority of funding being the responsibility of the federal government.

Instead the Attorney-General has insisted on cutting funding wherever he could and the fight continues with deans of law schools joining in the push back against Brandis:

On his part Brandis denies the funding cuts and attempts to blame the former Labor federal government (which has not been in power for the last three annual budgets) as well as the states, in his speech to the Bar Association of Queensland Annual Conference on 25 March 2017:

"I've been asked this morning to say a few words about federal matters so I thought I'd take the opportunity to address a matter which I know has been of much interest to the Bar, and which was averted to briefly by the state Attorney and that is the question of the Federal Government's contribution to legal assistance funding. We should never forget that most court proceedings in Australia are conducted in state and territory courts under state and territory law. Appropriately, therefore, it is the governments of the states and territories which are the principal funders of legal assistance in Australia. That is as it should be, even acknowledging, of course, that a very large component of the budgets of state and territory governments is money provided to them by the Commonwealth Government under various Commonwealth grants.

Nevertheless, federal governments of both political persuasions have always acknowledged that there is an important role for the Commonwealth to play in supporting the states in the provision of legal assistance through direct payments to Legal Aid Commissions, to Community Legal Centres, and to Indigenous legal assistance bodies.

With that in mind, I note that in the recent past there have been a number of statements made about the size of the Commonwealth's contribution to the legal assistance sector.

So let me take the opportunity with these remarks this morning to put some facts on the table.

First, to date, there have been no cuts to payments to Community Legal Centres by the Commonwealth Government. It has been claimed by some that the Government is withdrawing $6.8 million annually. That claim is misleading.

That money, to which the state Attorney also referred, was money provided for under a four year program, announced by the previous federal government in the 2013 budget, which was deliberately designed to terminate on 30 June 2017. When that program terminates that money will no longer be available. This is what is being called by some - the "Dreyfus funding cliff".

In spite of those, and other claims, the reality of competing funding priorities and the necessity for budget repair across Government should not obscure the significant support that the Commonwealth provides and to which we are committed to continue to provide."

BACKGROUND

The Guardian, 27 March 2017:

The fight for adequate funding for community legal centres stretches back to 2013. When the Abbott government was elected in September 2013, it used its first mid-year budget update to cut $43.1m for legal assistance services over four years, including $19.6m from community legal centres.

Six months later, in its 2014-15 budget, it cut another $6m from CLCs.

A month later it made one-off grants worth $1.55m to just 14 CLCs. Then in March 2015, following intense community pressure, it reversed some of its 2013-14 budget update cuts, reinstating $12m in funding over two years for the sector.

A few months later, in mid-2015, it signed a new five-year national partnership agreement on legal assistance services. The agreement provided Australia’s 189 community legal centres with $42.2m funding in 2016-17, but that funding drops to $30.1m in 2017-­18, $30.6m in 2018-­19, and $31m in 2019-­20.

The reduction in funding levels from 2016-­17 amounts to $34.83m over three years, 30% of CLC funding.

Campbell Newman's unwise decisions when Queensland premier continue to haunt that state

Correspondence between former Queensland police officer and former chief magistrate Chief Justice Tim Carmody, the President of the Court Of Appeal Justice Margaret McMurdo, Justice Hugh Fraser and others clearly demonstrates that an unwise political decision on the part of then Liberal National Party Premier Campbell Newman in 2014 will not be easily rectified.

Scroll to the end for the first email in the chain, dated 17 April 2015.

Correspondence between Queensland Chief Justice Tim Carmody, the President of the Court Of Appeal and other...

BACKGROUND

ABC News 9 May 2015:

Timeline of controversies surrounding Chief Justice Tim Carmody:
Nov 2013	Angered the legal profession by issuing a directive that all disputed bail applications made by alleged bikies be dealt with in one court room. That meant he would, most likely, be presiding over the controversial cases.
June 2013	Selected as chief justice despite never having sat on the Supreme Court, and after only nine months in the chief magistrate's job. Chosen over long-serving judges.
Jan 2014	Told newly appointed magistrates not to "meddle" with the controversial bikie laws.
June 2014	Bar Association President Peter Davis quits over appointment.
June 2014	Former Supreme Court judge Richard Chesterman QC and corruption fighter Tony Fitzgerald criticise appointment. Mr Sofronoff claimed Justice Carmody was too close to former Liberal National Party government. "His impartiality as between citizen and government has been called into question".

July 2014	Sworn in as Chief Justice behind closed doors, as controversy raged about his suitability for the job.
April 15, 2015	Met child protection advocate Hetty Johnston while still deliberating on whether Daniel Morcombe's accused killer should have his conviction overturned.
April 17	Court of Appeal President Margaret McMurdo raises issues of bias because of the meeting.
April 22	Justice Carmody responds that any suggestion of bias is "unsupported by precedent and utterly preposterous". Says it is "alarming" Justice McMurdo's associate investigates Ms Johnstone's comments over Cowan.
April 23	Justice McMurdo says "I cannot sit with him again on any Court".
April 29	It is revealed Justice Carmody did not read Justice McMurdo or Justice Fraser's draft judgements on Cowan appeal, despite being circulated in February.
May 7	Justice Carmody withdraws from Cowan appeal

Queensland Council for Civil Liberties vice-president Terry O'Gorman has also weighed in, calling on the Chief Justice to resolve the dispute.

"To have a Chief Justice make so many mistakes goes back to the fundamental issue of the botched appointment," he said. 

"The Chief Justice has the problem, the Chief Justice has to solve the problem. 

"The fact is the Chief Justice said a couple of months ago that if his occupying the position of Chief Justice made the position of the Supreme Court untenable ... he would resign, the position is becoming increasing untenable. 

"There are so many problems with the ongoing occupancy by Justice Carmody of the position of Chief Justice that this stalemate has to come to an end, this crisis has to be addressed. He is the only one who can address it."

Justice Carmody enjoyed a meteoric rise under the former Liberal National Party government and was promoted from Chief Magistrate, after a nine-month stint, despite never serving on the Supreme Court.

Leaders in the judiciary, including Justice Wilson, have publicly turned on him and questioned if he was ready for the top job or had enough peer support.

Ain't that the truth

In a judgment handed down in the NSW District Court earlier this year the judge's opening remark was

This is the twentieth year in which I will make the observation that nothing excites the zeal, the ardour and the passion of the legal profession than an argument about costs.

Read the judgment here.