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Bill to get legal aid growth under control introduced

Hon Simon Power
Minister of Justice
11 August 2011

Bill to get legal aid growth under control introduced

A bill which tackles unaffordable growth in legal aid while ensuring access to justice was introduced to Parliament today by Justice Minister Simon Power.

Mr Power said the current legal aid system is unsustainable, with expenditure rising from $111 million in 2006/07 to $172 million in 2009/10 – an increase of 55 per cent.

“Officials had forecast that if we didn’t take action this growth would result in a $402 million gap in legal aid funding over five years,” Mr Power said

“That’s why Budget 2011 included $103.5 million in short-term funding while longer- term sustainability issues were addressed, both through this bill and a wider review of the Family Court.”

The Legal Assistance (Sustainability) Amendment Bill includes proposals announced in April that are designed to save $138 million over four years.

“I want to make it very clear up front that the changes will not affect cases involving vulnerable parties, care and protection of children, and serious criminal matters.”

Changes under the bill include:

• Tightening the merits test for family cases so that legal aid is unlikely to be granted in cases involving less serious or trivial matters.
• Adjusting the special circumstances test, for family and civil legal aid applicants who are above the means and merits thresholds, to focus on expensive cases (excluding domestic violence and care and protection).
• Applying the means thresholds that already apply to family and civil cases ($22,000 per year for a single adult and $50,934 for an adult with two dependents) to less serious criminal cases, most of which cost less than $650. People above the threshold will still be able to apply for legal aid but will have to prove that their case is expensive or that they are genuinely unable to pay for a lawyer. Those no longer eligible will still have access to the services of a duty lawyer at the time of their first court appearance.
• Discontinuing the automatic inflation adjustment of eligibility thresholds, with adjustments to be made in line with other Budget priorities.
• Re-introducing a user charge of $100 for family and civil cases, but excluding domestic violence, mental health, compulsory care due to intellectual disability, care and protection, refugees, victims’ civil proceedings, and criminal cases.
• Introducing compulsory repayment orders.
• Charging interest on all debts.
• Placing civil (including family) matters for which legal aid can be granted in a schedule that can be amended, following consultation, by Order in Council.
• Extending the quality framework for criminal legal aid lawyers to lawyer for the child and youth advocates.
• Requiring parties to contribute to the cost of lawyer for the child services to encourage the early settlement of cases (excluding cases of abuse, violence, and protection).

“This bill is designed to get parties to resolve more minor matters between themselves rather than through the courts, while ensuring legal aid is sustainable for those who need it.”

Mr Power intends to send the bill to a select committee before Parliament rises for the election in October.

The changes to the purchase of legal aid services, including the expansion of the Public Defence Service, the introduction of fixed fees, and high-cost case management, do not require legislative change and are already under way.

Previous announcements relating to these changes can be found here.


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