Posts for May 2017

President's Message: Pro Bono is not a substitute for legal aid

Tuesday, May 09, 2017 2:49pm

Adelaide played host to the National Access to Justice and Pro Bono Conference on 23-24 March. It was the first time the event has been held in Adelaide and it was a wonderful opportunity to showcase our city to national and international guests.

The event was a huge success thanks to the wonderful efforts of staff of the Law Council of Australia, Australian Pro Bono Centre and of course, the Law Society of SA, who worked tirelessly to bring the event together.

In my opening address I discussed the relationship between pro bono legal work and legal aid, arguing that pro bono cannot be seen as a substitute for legal aid. The following is a modified version of my speech:

It is an unfortunate reality that the terms “access to justice” and “pro-bono” are associated.

As a result of not just a failure to maintain but actually reduce the level of funding to legal aid commissions, community legal centres, aboriginal and Torres Strait islander legal services and family violence legal services there has been an increasing dependency upon the provision of free or reduced cost legal services by the private legal sector.

Whilst the legal profession can be expected to continue to provide pro bono services, it can only do so according to its ability. Law firms are not charities and the erosion of traditional areas of work and profitability through legislative changes, is impacting upon the ability of firms to undertake pro bono work.

The Society has noted that it has become increasingly unviable to take on legal aid matters. Overwhelmingly, practitioners who represent legal aid clients do so at significant cost to their firm. This is further exacerbated in small and regional firms.

Our members have noted that legal aid matters are not cost effective to run if you want to provide qualityservice to a client. For many, it is for “love, rather than money” that they give their time and expertise. Despite the increasing challenges, practitioners remain compelled to continue to provide legal aid and pro-bono services.

The Society has campaigned tirelessly alongside the Law Council and its constituent bodies for the Federal and State Government to prioritise legal aid funding. The underfunding of legal aid will only further erode access to justice for those in our community who need it most. Legal aid allows some of our hardest working lawyers to help some of our most vulnerable people. There will be no saving from cutting legal aid. Instead it will ensure further hardship, a greater dependence on welfare and in some cases increased criminal activity.

The conference theme “innovation and justice” provides an opportunity to explore innovative ways of improving access to justice and, perhaps, the extent to which pro-bono services are required.

At an international level the challenge is more difficult because there are still countries in the developing world which lack proper access to information and communication technologies.

Politics may interfere in the infusion of technological innovation and global justice.

In Australia in 2014 the Australian Government commissioned a report from the Productivity Commission on Access to Justice Arrangements.

The inquiry was confined to the civil justice system and the report noted there are many options for resolving disputes including administrative bodies, Tribunals and civil courts and noted that alternative dispute resolution methods, whilst they can be successful, was not an appropriate mechanism to resolve all disputes.

It had regard to the difference between our present adversarial system and an inquisitorial system. Ultimately, the recommendation was for improvement of the current system rather than a change.

Courts in Australia have demonstrated a preparedness to embrace technology. The take-up however has been relatively slow and that has been primarily due to financial considerations and the priorities of governments.

The challenge is to identify how emerging technologies can not only improve access to justice, but do so in a cost effective manner for the litigants and which may, in turn, encourage lawyers to act on a pro bono basis where that is required; and persuade governments that investment in the emerging technologies is justified.

In South Australia, the State Government has placed a very low priority on funding the justice system. Not only does it contribute much less to funding legal aid than most other State Governments, the budget for the Courts Administration Authority is very constrained and the courts operate in sub-standard buildings with substandard facilities.

The Society, in its submission to the State Government budget process will be calling for the Government to increase funding to the Legal Services and community legal centres (read a summary of the State Budget Submission on pages 38-39).

In all, we are seeking a proper focus on access to justice. It is one of the primary factors that underpins the quality of our experience as Australians. We must fight for the funding that is necessary to properly provide it. We must impress on voters the implications for them. To allow Governments to continually push more on to a profession that has at its core the desire to see justice done is no longer sustainable.

Tony Rossi, President - Law Society of South Australia

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