Legal aid

Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To not do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law. Some people use the label of "judicare" for legal aid, in an apparent attempt to analogize legal aid to the Medicare health care programs in the U.S., Canada, and Australia.

Legal Aid in Australia

Legal Aid is administered separately by each of the different states and territories in Australia, which typically have specific statutory agencies set up for that purpose.

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It is important to note that legal aid work in Australia is performed almost exclusively by private law firms who account to Legal Aid for their fees, rather than state employees or "public defenders". The amount of money a lawyer receives from Legal Aid is always somewhat less than they would obtain from a private-paying client; however, most small and medium sized firms (particularly regional firms) will do at least some legal aid work because payment, even if modest, is guaranteed. Moreover in some areas of law (especially criminal law) Legal Aid work is often the only work available.

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The High Court case R v Dietrich established that defendants to serious legal proceedings should receive representation, and generally the first spending priority of agencies is criminal proceedings. The legal aid agencies are required by statute to fund representation for criminal defendants in indictable proceedings, which tend to be relatively serious in nature (such as stealing, fraud, house invasions, and aggravated assault). Lesser charges such as traffic or drug possession offences (being those that can be dealt with summarily by a Magistrate) do not necessarily warrant aid, although it is often granted if the defendant is a child or is otherwise disadvantaged.

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Legal Aid is not available if the Applicant either earns excessive income (usually more than $600) or possesses excessive assets. Applicants may be required to contribute part of the cost of proceedings if their income is less than this but still moderately high.

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Participants in Family law proceedings involving custody (or residence as Australian family law terms it) of children will usually receive aid, unless they fail the means or asset test. However, typically aid will only be granted initially to attend an informal conference, at which a mediator will encourage the parties to agree on a consent order. If this fails, the Legal Aid agency will fund representation for court proceedings depending on its assessment of the merits of each party's position.

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Aid is only rarely granted for civil proceedings, generally worker's compensation claims, or more commonly, for criminal injuries compensation claims.

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Problems with Legal Aid in Australia involve chronic underfunding (the opening of the new High Court building was greeted by protests that the cost of the opening ceremony exceeded the total Legal Aid budget for that year). It is also worth noting that there is less pro bono work performed in Australia than the US (probably because in Australia, law is a significantly less lucrative profession). Moreover, the peculiar American innovation of public service firms that subsist on donations and federal grants to provide representation to indigents do not exist in Australia.

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As a consequence, people who do not receive aid but who cannot afford private counsel have no recourse but to represent themselves. This is a commmonplace occurrence in property claims in the Family Court following the separation of spouses - it is estimated that up to 75% of the participants in these proceedings are self-represented.

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