The Rule of Law, Access to Legal Assistance and Community Legal Centres
09 December 2016 | Amanda Alford, National Association of Community Legal Centres
Every year hundreds of thousands of vulnerable and disadvantaged people in Australia visit community legal centres and other legal assistance services to seek free legal help for a variety of legal problems. As a result, as Professor Gillian Triggs, President of the Australian Human Rights Commission has observed, 'in practice, it often falls to community legal centres and legal aid organisations to ensure that the rule of law has meaning for the disadvantaged'.1
Community legal centres (CLCs) are not-for-profit community organisations that provide free legal assistance to over 216,000 vulnerable and disadvantaged members of the community each year. CLCs provide people with legal assistance in areas of law including family violence, relationship breakdown and family law, debt, consumer problems, problems with Centrelink, tenancy disputes, and employment issues.
Community legal centres give meaning to access to justice, a key element of the rule of law, in a number of respects, including through provision of access to legal assistance as well as by working to address structural and systemic inequalities within the justice system.
While access to the justice system should not be dependent on the capacity of an individual to afford to pay for private legal representation, increasingly there are significant barriers to obtaining legal assistance in Australia. Combined with high levels of both met and unmet legal need,2 many vulnerable and disadvantaged members of our community must rely on one of the four publicly funded legal assistance providers in Australia—CLCs, Family Violence Prevention Legal Services, Aboriginal and Torres Strait Islander Legal Services, and Legal Aid Commissions.
Unfortunately, CLCs and other legal assistance providers are increasingly unable to meet this rising demand for assistance, which results for example in more than 160,000 people being turned away by CLCs each year. Further, rising demand for legal assistance is occurring against the backdrop of further reductions to government funding. For example, under the National Partnership Agreement for Legal Assistance, CLCs nationally are facing a 30% reduction in Commonwealth funding from 1 July 2017, with a reduction of $34.83 million over the period 2017-18 to 2019-2020.
This reduction and the ongoing funding challenges faced by the legal assistance sector mean that hundreds of thousands more people will miss out on the legal help they need and threatens access to justice and in turn, the rule of law itself.
Given the scale of the problem and the rising demand for legal help, reversal of the funding cliff is only part of the solution. There is also a need for increased investment in the legal assistance sector, as highlighted by the Productivity Commission in its 2014 Access to Justice Arrangements Inquiry and a longer-term vision for the sector.
In addition, these Commonwealth funding challenges are compounded by the inconsistent funding of legal assistance across Australia, which means that access to essential legal advice and assistance for vulnerable and disadvantaged people differs considerably, depending on where someone lives. This underscores the importance of Commonwealth leadership in developing a mechanism that ensures adequate investment by all levels of government in legal assistance.
We know that unresolved legal problems generate a range of flow-on effects and that access to legal help can prevent or reduce the escalation of legal problems for individuals.
We know that investment in legal assistance makes economic sense. For example, the Productivity Commission has noted, 'legal assistance services can prevent or reduce the escalation of legal problems, which in turn can mean reduced costs to the justice system and lower costs to other taxpayer funded services (in areas such as health, housing and social security payments).'3
We also know that CLCs play a vital role in giving practical meaning to the rule of law through provision of legal assistance to individual clients, as well as broader early intervention, policy, advocacy and law reform work and community legal education.
What is less clear is what the future holds for the legal assistance sector, or how we ensure that vulnerable and disadvantaged people have access to legal assistance they need in the face of rising demand and ongoing reductions in funding. As a result, we must continue to work collaboratively across the legal assistance sector, the legal profession and with all levels of government to address this issue and to ensure that the rule of law continues to have meaning for all members of our society.
*Amanda Alford (BA (Hons), LLB (Hons), GDLP, LLM) is Director Policy and Advocacy at the National Association of Community Legal Centres.
1 Gillian Triggs, Access to Justice, Speech at Community Opening of the Legal Year, 1 February 2016, https://www.humanrights.gov.au/news/speeches/access-justice-0
2See, eg, Productivity Commission of Australia, Access to Justice Arrangements Inquiry Report No 72 (September 2014) 107 & Finding 2.1; ACOSS, Australian Community Sector Survey 2013: National Report, ACOSS Paper 202 (2013).
3Productivity Commission of Australia, Access to Justice Arrangements Inquiry Report No 72 (September 2014) 666.