The cruelty and injustice of a poorly funded legal aid system

Elizabeth O'Shea and Nicole Papaleo | The Age | December 22, 2011

Imagine being jailed for something you didn't do and help is denied.

TERRY Irving found himself in the wrong place at the wrong time. In 1993, an armed robber held up a bank in Cairns and stole $6230. Meanwhile, Irving was at the nearby pub playing pool. A relaxed and generous man, he lent his car to a couple of blokes for the afternoon. He did not think further of it until he heard the police reporting information about the robbery over the radio, including his car registration. Irving was arrested and charged, despite not matching the physical description.

Irving's problems became a nightmare when his barrister failed to show up and he met his new one on the morning of the trial. Despite the hearing being listed for three days, he was convicted that afternoon and sentenced to eight years in prison.

Irving was denied legal aid funding for an appeal. He went on to represent himself and, unsurprisingly, lost.

Fortunately, Irving met legal aid solicitor Michael O'Keeffe while in jail. Many inmates will tell you they are innocent, but O'Keeffe was good enough to listen.

Together, they decided to take Irving's case to the High Court, a task that has cost countless hours of their lives. They applied for legal aid to do so. This was again denied; the reason is still unclear. When the High Court learnt of this, the judges immediately adjourned the hearing and ordered Irving to get legally aided representation.

With legal aid finally granted, the result was breathtaking. The chief justice at the time, Sir Gerard Brennan, expressed ''the gravest misgiving about the circumstances of this case … [It is] a very disturbing situation. And in all of this, the accused has been denied legal aid for his appeal.''

The conviction was quashed, unopposed by the Crown. A retrial was ordered, but Irving had to wait another year in limbo before the State of Queensland decided not to proceed with another prosecution.
Irving and O'Keeffe made a complaint to the UN Human Rights Committee, which found he was subject to a ''manifest injustice''. The UN was critical of the failure to grant legal aid, saying it amounted to a breach of our international obligations, including to provide legal aid to persons facing serious criminal charges.

O'Keeffe then approached law firm Maurice Blackburn and successfully obtained pro bono representation for Irving in his claim for compensation.

This preventable tragedy cost Irving nearly five years of his life. This demonstrates the importance of access to the judicial system: everybody is entitled to a lawyer to guard against such miscarriages of justice. If we had a better-funded legal aid system that could take on more cases, it is less likely that someone like Irving would fall through the cracks of our justice system.

In 1997, the year Irving's conviction was quashed, legal aid suffered funding cuts under the Howard government. Legal aid is funded in partnership by the Commonwealth and states and territories. The Commonwealth's share of spending declined from 49 per cent in 1996-97 to 32 per cent in 2009-10. The states and territories have been unable to make up the shortfall.

The lion's share of this limited resource is spent on criminal and family law cases, many civil legal aid divisions were closed or drastically reduced after these cuts. Today, the means thresholds for civil cases tend to come in below the poverty line, meaning the number of legally aided civil cases (other than family law) is tiny.

Troublingly, the increased complexity of litigation has led to an increase in the cost of cases across all courts by 78 per cent in real terms from 1998 to 2008.

All this has had a devastating effect on access to justice. Everyday people are simply unable to obtain advice on housing, employment and consumer and debt matters. Such advice is desperately needed, particularly in these difficult economic times. Instead, the shortfall in legal services must be picked up by overworked community legal centres or pro bono practices in large firms. This is no substitute for a funded system. Many fall through the net or go unrepresented.

By global standards, we are lagging behind. The UK government spends £2 billion ($3 billion) of taxpayers' money a year on publicly funded legal advice, per capita spending of $68.36 compared with Australia, which spends just $23.

The result is Australia has a grossly underfunded system that ends up proving costly. Modelling done on family law matters in Queensland found net efficiency benefits for cases where legal aid funding was available. It was estimated that for every dollar spent on legal aid, we save between $1.64 and $2.25 in fees, court time and other litigation expenses. In other words, this is a positive investment of public money because it saves money elsewhere.

Under the Labor government, we have seen the first increase in federal funding for legal aid since 1997. But there is still a long way to go.

And for Irving, proper funding may provide some comfort that his nightmare would be less likely to happen to anybody else.

Elizabeth O'Shea and Nicole Papaleo are lawyers