Brisbane lawyer Brittany White has been working on a big case for more than a year.
- The rate legal aid lawyers are paid is now nearly 50 per cent of the rate paid in courts
- The number of law firms electing to take on legal aid work is dwindling, with more than 130 leaving since 2005
- The Attorney-General says she’s in talks with Legal Aid Queensland about funding and resourcing
It is a complex case that involves mental health matters, which has led to it being bounced in and out of court while reports and evidence are finalised and submitted.
Ms White has not yet been paid a cent for her work and even when the matter is finally finished, she says she will receive just $660.80.
“It’s costing me money — the amount of calls that I have to make, to the amount of dealings I have [with] the Public Guardian who’s taking care of [my client]. The only reason I’m keeping the matter is for ethical reasons,” Ms White said.
The case was one Ms White took on from Legal Aid Queensland (LAQ).
Payments for such cases are determined by strict grants set using funding LAQ receives from the state and federal governments.
The sum she expects to be paid for more than a year’s work is the price of a day in the Magistrates Court. There is no guarantee a lawyer will get paid more for more appearances.
Up to 80 per cent of Legal Aid cases in Queensland are taken by outside lawyers, like Ms White, known as preferred suppliers, as part of a mixed service delivery system with in-house lawyers.
But the number of firms electing to take on legal aid work is dwindling.
Legal Aid model ‘in jeopardy’
Legal Aid Queensland said in 2005 there were 440 firms on the preferred supplier panel, while today there are just 308.
Legal aid grants were originally calculated at 80 per cent of the court scale of fees and have increased in small increments over the past two decades.
The scale is now mostly used when someone has to pay another party’s costs and is already below market rates.
“The legal aid rate is now approaching about 50 per cent of the court scale,” the immediate past president of the Queensland Law Society (QLS) Elizabeth Shearer said.
Ms Shearer said mixed service delivery was “a good model that has served Queensland and Australia well for many years” but the system was “in jeopardy”.
Ms White said the shortcomings of the current system can lead to “huge injustices in the legal system”.
Attorney-General Shannon Fentiman defended the rate of pay for lawyers representing those who could not afford legal representation, saying “rates paid for legal aid work by preferred suppliers are within its budget”.
She said the organisation aimed to “deliver their services in the most effective, efficient and economical way” and that she had met with LAQ representatives for ongoing discussions around funding and resourcing.
‘Operating at a loss’
Townsville lawyer Zoe Navarro has worked tirelessly with young people entangled with the law, but late last year she stepped back from the youth crime panel.
Ms Navarro’s firm was not the only one to step away from youth crime work.
In 2005, there were 11 firms on the Townsville region’s youth crime panel and in 2012 a domestic violence panel was established that included 13 local firms.
Today, there are just four on each of the panels in the Townsville region, which stretches south to Bowen and west to Charters Towers.
Ms Navarro also stood down from the domestic violence panel in Townsville, which halved her legal aid intake.
Data provided by QLS indicated that of its more than 2,500 members, fewer than 800 were based outside of south-east Queensland, and a lack of rural and regional lawyers had long been flagged as a potential threat to justice across Australia.
Ms Navarro works for a charity and heavily discounts her work but she said the amount she was paid for legal aid work did not even compare to that.
“I discount my fees, so I bill them between one third and a half of what I would ordinarily charge, and it still amounts to at least double what I get paid to represent people on legal aid rates.
An imbalance of resourcing
In 2014, the Productivity Commission estimated only 8 per cent of households were likely to meet the income and assets test for legal aid, while the Council of Social Services estimated 13.6 per cent of Australians lived in poverty.
Ms Shearer, who is also the chair of QLS’s Access to Justice Pro Bono Committee, is extremely worried by this discrepancy.
“So not even everybody living in poverty is financially eligible for legal aid, let alone all the other people in the community who might need legal assistance,” she said.
Ms Shearer said she believed the way the government resourced the criminal justice system was unbalanced.
“The government will appoint more police, and maybe put more resourcing into prosecutions and perhaps more resourcing into the courts,” she said.
“But we’ve got no model in Queensland that really is followed that says ‘if you do that at one end of the system, then at the other end, you need more resources for the representation of defendants’.”
The Attorney-General said the LAQ means test was applied to ensure “legal assistance was provided to those most in need”.
Whether a person receives legal aid or not is also dictated by the length of time they stand to serve behind bars, if they are found guilty.
“We might have rights on paper, but without a lawyer to put your case in the court or tribunal hearing it, you can’t be sure that you can exercise your rights.”
The 2014 Productivity Commission report recommended the test be expanded both in scope of legal areas and the number of households eligible for legal aid.
Legal Aid Queensland said the organisation supported this recommendation.
Solutions put forward
In a letter sent to Queensland Treasurer Cameron Dick and Attorney-General Shannon Fentiman in November last year, Ms Shearer, as then QLS president, said there were a number of solutions on the table.
The organisation primarily argued for the raising of grants to reflect the work required for sound legal representation, but it also noted the inflexible nature of lump sum payments.
“Depending on the complexity and nuance of the case, preparation can reasonably take much longer than the hours covered by the lump sum payment,” the letter said.
Ms Shearer said most matters were serious criminal charges which “usually require an element of case conferencing and a sentence listing with substantial preparation”.
Ms White said legal aid cases could suffer from “delays of years or longer” due to their complexity, especially if the matter had been referred to the mental health court.
The QLS letter said a key step towards improving the system would simply be by increasing the funding for LAQ, and pointed out that in New South Wales the preferred supplier rate was being brought up to $195 per hour over four years.
Ms Shearer and QLS suggested a percentage of the proceeds of crime seized in Queensland be “reinvested in legal aid”.