Member for Isaacs

Speech to Legal Aid NSW Civil Conference - Mark Dreyfus QC MP

25 June 2018





FRIDAY, 22 JUNE 2018

I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders, past and present.

Thank you for the opportunity to address you all today. Looking at the terrific program for this event, I expect that you have had a very interesting and productive conference.

I must say what a pleasure it is to be away from Parliament House after the last four days, during which I was forced to sit through a number of interminable speeches by members of the Government, asserting with astonishing gusto pearls of Coalition wisdom such as:

  • Labor MPs who have an education are a privileged elite, who are not to be trusted;
  • that trickle-down economics, as implemented by introducing a flat income tax regime for everyone from 20,000 to 200,000 is the proven recipe for social justice;
  • And from Senator Hanson, that the tax cuts she had changed her mind to now support would not benefit her personally because she earned more than $200,000.

In the darker moments of this parliamentaryweek I have had to console myself with Churchills wry observation that democracy is the worst system of government, apart from all the others that have been tried.

In my time as an MP, both as Attorney-General and as Shadow Attorney-General, I have oftenspoke about the importance of access to justice in building a truly just and egalitarian society under the rule of law. In laymans terms, what were fighting for is the right of all Australians to a fair go under the law.

Australia is, by all global indicators, a wealthy and prosperous nation. But we know that that wealth is not evenly spread. And what concerns so many of us on the progressive side of politics is that disparities have been growing. And growing at an alarming rate. There are few economists who would dispute that most of the changes to our tax system voted through the Parliament this week, if carried through into policy over the coming years, will further widen the gap between rich and poor in our nation.

And as Im sure you in this audience will have observed very directly through your work, as the number of Australians in financial distress grows, so do does the amount of unmet legal need.

Four key legal assistance services are funded by the Commonwealth: Legal Aid Commissions, Aboriginal and Torres Strait Islander Legal Services, Family Violence Prevention Legal Services and Community Legal Centres. Each carries out a critical role in providing access to justice.

Today I will briefly talk about the history of Legal Aid as in institution in Australia, and then to address the topic I have been asked to speak on, which is the opportunities and challenges for social justice lawyers in Australia today.

In July it will be 43 years since the Labor Government of Gough Whitlam announced the establishment of the Australian Legal Aid Office - the ALAO.

At the same time, that Government announced the formal establishment of both the Aboriginal Legal Service and the Australian Legal Aid Review Committee the latter a body tasked with examining all aspects of legal aid in Australia.

It is interesting to reflect on the fact that until the Whitlam Government changed our country so dramatically, the Commonwealth Government had only a limited role in providing legal assistance services.

In 1903 federal legal aid was provided for under the Judiciary Act 1903 for the defence of persons committed for trial for offences against the laws of the Commonwealth if that person was without adequate means to provide defence for him or herself.[1]

Later, provisions were made for assistance forcourt martial matters[2], for legal aid in proceedings by and against paupers,[3] and for legal aid in relation to a number of union matters.

In November 1942, Labor Attorney-General, H.V. Evatt QC, announced the establishment of the Legal Service Bureaux.

The Bureaux were the first foray by the Federal Government into a salaried federal legal aid service. They provided legal advice and other services to servicemen, ex-servicemen and their families.

The Bureaux can be seen as the predecessor of the Australian Legal Aid Office, which incorporated the existing Legal Services Bureaux.

So what prompted the Federal Government, back in 1975, to establish the Australian Legal Aid Office?

The Whitlam Labor Government had an ambitious reform agenda, and the ALAO was created to address four major objectives:

  1. To meet the need to provide legal advice and assistance on an equal basis throughout Australia, and particularly to ensure that assistance was available to disadvantaged people;
  2. To meet the unmet need for legal advice and assistance in divorce cases;
  3. To respond to the shortage of legal representation in magistrates courts; and
  4. To avoid the increasing costs of existing ad hoc funding of legal aid services by providing a cost-effective national solution.[4]

It was a visionary and ambitious quartet of objectives.

In his ministerial statement on legal aid in December 1973, Attorney-General Lionel Murphy stated that the new office would:
provide legal advice and assistance on all matters of Federal law, including the Matrimonial Causes Act, to everyone in need; and on matters of both Federal and State law, to persons to whom the Australia Government has a special responsibility for example, pensioners, Aborigines, exservicemen and newcomers to Australia. The offices will provide a referral service in other cases.

In setting out his vision for the office, Lionel Murphy said:

I see the role of the ALAO as taking the law to the people who most need it... I want them to be the kind of offices to which the ordinary man or woman faced with a legal problem will go as readily as he or she would go to the garage for an ailing motor car.[5]

The ailing motor car analogy in itself is instructive of what the Whitlam Government was trying to achieve breaking down the barriers to everyday people gaining access to justice.

The focus was on accessibility, with the new salaried legal service to provide assistance in federal legal matters, to act for people for whom the Commonwealth had a special responsibility and to act as a referral point for other services.

Operating out of the Attorney-Generals Department, the Australian Legal Aid Office expanded rapidly over the years following its creation. However, a bill to make the ALAO a statutory body was not passed when the Labor Government lost power, and in 1977 the Commonwealth Legal Aid Commission Act was passed by the Fraser Government, paving the way for the establishment of independent legal aid commissions in each state and territory, and effectively taking over the ALAO offices in each jurisdiction.

But notwithstanding the change in the form of legal aid offices after 1977, the concept of the federal government taking on some responsibility for the provision and funding of legal assistance services across the nation has remained intact.

And I am proud to be standing here, 43 years after the creation of this vital legal institution, to reiterate Labors enduring commitment to Legal Aid, and more broadly, to improving access to justice in our nation.

As I mentioned, on the same day that the Whitlam Government announced its intention to establish the Australian Legal Aid Office, it also announced the establishment of the Aboriginal Legal Service. The first Aboriginal Legal Service began in 1970 with volunteers providing free legal advice and representation to Aboriginal people in inner-Sydney.

Forty-three years later there are eight Aboriginal and Torres Strait Islander Legal Services, delivering services from 82 permanent locations in each State and Territory, and providing legal assistance in over 200,000 matters a year.

By the end of1983 Community Legal Centres had also been formally accepted as part of the legal aid system, with 35 receiving Commonwealth funding. When we left office in 2013, the Commonwealth funded 138 community legal centres across Australia, which provided services to around 200,000 clients.

The fourth arm of Commonwealth funded legal assistance services is the Family Violence Prevention Legal Services, established in 1998 and initially piloted in Kempsey NSW. This unique program provides culturally safe, free legal assistance and support services for victimsurvivors of family violence or sexual assault who are Aboriginal or Torres Strait Islanders. Today the program is delivered by 14 service providers to 31 identified high-need geographic areas in rural and remote areas across the nation.

But of course, all four legal assistance services have been struggling to meet the demands on their services with the limited resources they have. In some cases, those resources have been diminishing over recent years, and I feel that I have spent a significant part of the last several years in opposition fighting with the Abbott and now the Turnbull Governments to reverse the funding cuts they imposed on legal assistance services.

And I find it particularly galling that throughout the years of fights I had with Senator Brandis in particular about the cuts to legal assistance services, he always said that the money to fund them just wasnt there. The amount in question for Community Legal Centresin particular was around $12 million per year. And yet the Government this week has happily found many thousands of times that sum to hand out in tax cuts, including to the wealthiest Australians.

The question is, as is so often the case, one ofpriorities.

Which brings me to the question of the challenges and opportunities for social justice lawyers today. I suppose I should start with the challenges.

In many ways, the most pervasive problem seems to me to be a lack of resources for the work that social justice lawyers do.

When I commissioned the Productivity Commission to conduct its Inquiry into Access to Justice Arrangements, it was for three primary reasons. First, to attempt to quantify the level of unmet legal need in civil law. Second, to quantify the amount of additional funding required to meet that unmet need.

Third, and in some ways most importantly, I wanted an assessment, in hard-headed economic terms, of the financial benefit to the community of providing the level of support for legal assistance required to meetlegal need. What I wanted were figures that showed clearly that money spent on legal assistance was in fact money saved in the long run. We certainly have plenty of evidence that this is the case, in particular by ensuring that legal problems are addressed early, so that they do not escalate into expensive litigation and the many problems and costs that can flow from that.

But I asked the Productivity Commission to do that work because I wanted to have the data in a form that I could use to argue my case for more funding to the Treasury and to my colleagues in the financial portfolios. From asource they could all trust.
Happily, the Productivity Commission did indeed provide that information that I wanted. And more than that, the Commission went beyond commenting on the direct economic benefits of legal assistance funding. And I quote from the Report, whichemphasised that improving accessibility would generate social and economic benefits:

There are good reasons for governments to seek to improve the functioning and accessibility of the civil justice system.

A well-functioning civil justice system protects individuals and businesses from infringement of their legal rights by others. The ability of individuals to enforce their rights can have profound impacts on a personswellbeing and quality of life. For example, it can mean that someone who has sustained injuries due to the negligence of others can seek recompense for impairment and/or their reduced income generating capacity.

But a well-functioning civil justice system serves more than just private interests it promotes social order, and communicates and reinforces civic values and norms. A well-functioning system also gives people the confidence to enter into business relationships, to enter into contracts, and to invest. This, in turn, contributes to Australias economic performance.

There can also be fiscal benefits. Prompt, affordable andwell understood dispute resolution arrangements can help avoid issues escalating into more serious problems that can place burdens on health, child protection and other community welfare services.

But unhappily, my plan to use this excellent material to argue for a very significant boost to funding for legal assistance services, and in particular for Legal Aid, was thwarted by the fact that the Productivity Commission only reported in September 2014, a year after Labor lost power in the 2013 election. And Im sure you all have fairly direct experience of what the Liberal Partys priorities are when it comes to spending public money on looking after those in legal need.

As tempting as it is for me, I wont go into a lengthy diatribe about the twisted priorities and rank hypocrisies of the Abbott and Turnbull Governments when it comes to their claimed spending priorities and economic ideology. You already know all that.

But I would be very interested to hear some feedback from you on this question of the challenges facing social justice lawyers, beyond the issue ofscare resources. So please, when it comes to questions, feel free to simply make a comment if you like about what you consider to be the significant challenges that you face in your work.

But I want to leave time for questions, and to close on a more positive note. So as Ive also been asked to address the question of opportunities for social justice lawyers, I will finish with a few comments about those opportunities.

Because if theres a silver lining to the dark clouds of injustice all around us, its that the opportunities to fight for social justice are also all around us.

If you are working for the Civil Division of NSW Legal Aid, it seems to me that every day you head into work that you are surrounded by opportunities to make a difference. The Divisions many innovative programs in social justice have achieved so much, and it is fantastic to see that you are continuing to adapt and develop those programs as you roll them out across the state. Its clear to me why the Productivity Commission singled out the NSW Civil Law Division as an exemplary provider of legal assistance services.

I say to every lawyer in private practice to take on a pro bono matter. Or two. Because although many lawyers do not work as paid legal assistance providers, the private profession still has a great deal to offer, and opportunities abound for private lawyers to do social justice work alongside their private work.

There is no doubt that among the most rewarding cases I argued as a barrister were those that involved a fight for justice. The Stolen Generations Casein particular was a matter that I fought for at a very personal level. It was a case about redressing a deep injustice, and I remain very proud of having worked on it.

But regardless of where you work, I would urge you to take the opportunity to get involved in advocacy for law reform. Take the opportunity to leverage your experience and your expertise by urging the government of the day to make lasting, systemic changes to the law. Many of you will know much more about the areas that you practice in and how the law could be improved than the lawyers in the Attorney-Generals Department, however skilled they may be.

I know some of you will be thinking that this Government is not listening, and has even gone so far as to actually gag legal assistance providers from advocating for law reform. But we in Labor are listening hard.
So please, write submissions. Write letters. Advocate for lasting, meaningful changes to our laws, whenever the opportunity arises.

Thank you.


[1] Section 69(3) Judiciary Act 1903, Harper, J, 1976, Federal Legal Aid in Australia, delivered at the First International Colloquium on Legal Aid and Legal Services, 25-28 October 1976, London, England.

[2] Section 96 Defence Act 1903, ibid.

[3] Order IIA of the Commonwealth Statutory Rules 1910, NO. 130(date of commencement 1 Jan 1911), Harper, J, 1976, Federal Legal Aid in Australia, delivered at the First International Colloquium on Legal Aid and Legal Services, 25-28 October 1976, London, England.
[3] Section 96 Defence Act 1903, ibid.

[4] Senate Hansard, Parliamentary debates, Legal Aid ministerial statement speech, 13 December 1973

[5] Senate Hansard, Parliamentary debates, Legal Aid ministerial statement speech, 13 December 1973