Legal aid faces skills shortages amid funding gaps

Australian attorneys-general have been urged to re-evaluate spending as legal aid is impacted by the inadequate remuneration of private lawyers.

National Legal Aid (NLA) warned that legal aid private lawyers are at “unsustainably low levels” due to low fees in regional and remote areas. This shortage is set to impact “all areas” by 2030, it said. The national body stressed the importance of a stringent means and assets test to limit those eligible to legal aid to only the poorest 8 per cent of Australians.

Opportunity for change

Amid these findings, it called upon attorneys-general nationwide to collaborate with them on a five-year plan to make sure that disadvantaged clients have access to lawyers, after its research found that 30 per cent of private lawyers planned to discontinue providing legal aid services within the next five years.

An opportunity to enact change will arise this week, when the Standing Council of Attorneys-General (SCAG) will meet in Brisbane. NLA and the council urge governments to take necessary steps to quell this crisis, stressing that the onus of legal aid funding lies with the Commonwealth, state and territory governments.

For this meeting, NLA stressed that parties must undertake a review of legal aid fees to private lawyers, as they are responsible for 70 per cent of legal aid work – amounting to over 100,000 cases a year, it found. The national body said: “A review of the system of private lawyer fees nationwide will provide a critical picture of the supply of legal aid lawyers and the provision of legal aid for disadvantaged communities.”

Highly limited capacity

The national body found that private lawyers who provide legal aid reported stagnant and low fees for over a decade (approximately three times less than private practice earnings), high rates of unbilled hours, and travel of more than 200 kilometres to provide representation.

NLA executive director Katherine McKernan said: “Without an adequate supply of lawyers, the capacity for legal aids to deliver legal representation services will be highly limited, impacting on clients and the efficient operation of the courts and justice system.”

Elizabeth Shearer (pictured), executive member at the Law Council of Australia, said: “The majority of legal aid work is undertaken by women, often working in sole or small legal practices. Many are located in regional areas. They commonly work with populations affected by domestic and family violence, and with vulnerable children.”

Unfeasible and unviable

The council stressed that unsustainable rates, unpaid work, unmanageable workloads, and administration have placed legal aids at risk. Shearer said: “Australia’s governments must act urgently to address the workforce crisis that was predicted by the Productivity Commission in 2014 – and has now arrived.”

Shearer emphasised that without intervention, legal aid in Australia will be “decimated”, and the long-term underfunding creates an unsustainable system that is below the cost-of-service delivery, “making it unfeasible for practices to continue to do legal aid work”.

“Private practitioners have made it clear they simply cannot keep their businesses viable and continue to provide legal aid unless additional funding is provided by governments,” Shearer said.