Aconference in Canberra last week was told of a “”crisis” in legal aid.
Don’t be fooled. There is no crisis in legal aid, but there is a more worrying trend which is only made worse by more legal aid.
Fortunately, the Federal Attorney-General, Daryl Williams has kept his head while all around bay for more money which, if past experience is any guide, will just go into a bottomless pit. The legal profession will absorb whatever funds are available and still call for more.
The “”crisis” is being viewed from the wrong angle. There is no crisis in legal aid. Rather there is a crisis in dispute resolution.
Indeed, it is difficult to imagine a more expensive, time-consuming method of dispute resolution than the British system of justice. And the same can be said about determining guilt.
At the time of the conference a fraud trial in the ACT Supreme Court was stayed indefinitely because the accused could not get legal aid. This was cited as a symptom of the legal-aid crisis. Nonsense. You need to look at it the other way. It is because our system of trials is so long and complicated that they are too expensive for legal aid to fund.
Let us not increase legal aid. Let us reduce the complexity of criminal trials and let us use better systems than the adversary system to resolve disputes.
Then the legal-aid budget might stretch, as it should, to needy people facing criminal charges. Indeed, given that costs are rarely awarded in criminal trials, there is an argument that legal aid should always be provided. Alternatively costs should go with an acquittal. When accused people face the might of the state, they should not have to risk penury to defend themselves.
In civil and family-law matters, Williams does not go far enough. Legal aid should be scrapped for all civil matters, including family law. Why encourage the adversary system. The money should go to mediation, particularly in family law. In any event, judicially imposed solutions rarely last long as family circumstances change rapidly. Children have a habit of growing up (even if some of the disputing parents never seems to).
We need a reworking of family law. There is no point in returning to the counter-productive fault-based system. That was worse. But family breakdown is adversary enough without imposing the adversary system of “”justice” as a means of working it out. And family matters are complicated enough without imposing the complicated rules of evidence as a means of finding solution.
The only disputes that our courts are really good at are huge corporate fights with enough millions at stake that the thousands in legal fees are trivial. The corporate litigants can get Rolls Royce justice at a Rolls Royce price which is what our system is best at. But the big corporations with cases that tie up our courts for so long do not pay for the cost of the court, other than a (for them) trivial filing fee. Moreover, their legal costs and the filing fees are tax deducible.
Surely a Government so fond of user-pays could force be corporate litigants to pay for the cost of the court, as was suggested at the conference. If that were imposed it would prompt the parties to be a bit more economical with the courts.
The more fundamental problem is the growing complexity and length of trials. The Law Institute of Victoria and the Institute of Judicial Administration proudly point to the fact that the number of cases in all but the magistrates’ courts is falling. Don’t be fooled. The number of judges and sitting days hasn’t fallen. It just means that cases are getting longer and more costly. Some are not getting to court and others are voting with their feet, recognising that courts are not good dispute resolvers. The last thing we want is to waste more legal-aid money on them.