The Attorney-General’s Department has trumpeted the commitment of an additional $130 million over the next year, “to improve access to justice for all Australians”. The bulk of that amount will be spent on the Royal Commission into Institutional Responses to Child Abuse, with a further $23.5 million split between Community Legal Centres, State and Territory Legal Aid Commissions and the Aboriginal and Torres Strait Islander Legal Service. Additional spending for the appointment of three more Federal Court judges and related support staff is also included.
Additional spending on all of those areas is indeed welcome. In the case of the Royal Commission, it provides an opportunity to air and redress past wrongs. In the other areas, the additional spending will improve, to some extent, the possibility of achieving a fair trial. However, a slight improvement in the chance of achieving a fair trial is a very long way short of what the federal government ought to be aiming for: securing access to justice for all, a fundamental human right and the bedrock assumption on which the entire Australian legal system is based.
The Legal Aid funding crisis caused Victoria Legal Aid in January to restrict the range of cases eligible for legal aid and to limit the amount of assistance provided for each case, affecting the capacity of vulnerable people to receive adequate representation and a fair trial, particularly in criminal and family law cases. The courts have been so troubled by the reduced availability of Legal Aid, especially when it results in a mismatch of resources between the prosecution and the defence, that at least two criminal trials have already been stayed in Victoria this year on the basis that the under-funded accused would not receive a fair trial. For cases that go ahead, trials with unrepresented litigants are typically longer and more drawn out, as the judge is forced to guide the litigant through the process. The upfront savings in Legal Aid cuts therefore represent a false economy, as courts’ backlogs blow out, costing taxpayers far more in the long run.
Legal Aid is administered through separate Legal Aid Commissions based in each state and territory. Traditionally, Legal Aid funding has been shared between Commonwealth and state or territory governments on a 50-50 basis. While the share of funding differs from one jurisdiction to another, the Commonwealth is well short of half way. In Victoria, the Commonwealth currently funds just a third of Legal Aid. The new money represents less than one fifth of the amount estimated by the Law Council of Australia as necessary to bring the Commonwealth contribution back to a half share in each jurisdiction.
When challenged before the budget about the need to increase Legal Aid funding, Attorney-General Mark Dreyfus blamed the emphasis of conservative state governments on law-and-order campaigns for an increased demand for Legal Aid. He insisted that since state policies had put more people before the courts, state governments should pay for the legal services. That position is churlish at best and turns a blind eye to the dire situation facing unrepresented individuals. A significant proportion of the increased criminal case load in the lower courts comes from domestic violence cases, which has nothing at all to do with law-and-order campaigns and everything to do with a laudable cultural shift among police and the public in ending the tolerance of violence against women and children in the home.
The focus of commentators on Legal Aid has meant that some crucial cuts in the Attorney-General’s budget have slipped under the radar. Among them is a cut of $5 million from Australia’s contribution to the International Criminal Court, reducing it to the minimum compulsory amount for Australia as a member state of the court.
The Human Rights Education Program has also been slashed, saving $1.5 million over three years, ostensibly to “remove an overlap with programs run by the Australian Human Rights Commission.” The sharpest sting in this cut is not the loss of the education programs that would otherwise have run, but the signal of the Gillard Government’s regard for human rights.
Shortly after the Rudd Government came into office in 2007, it established a National Human Rights Consultation, chaired by Father Frank Brennan, to determine the best way to protect human rights in Australia. The report of the consultation recommended the adoption of a Human Rights Act for Australia, which would end the shameful situation in which Australia is the only developed country in the world not to have comprehensive constitutional or legislative protection of human rights.
However, the government’s response to the consultation report – Australia’s Human Rights Framework, launched in 2010 – rejected the idea of a Human Rights Act. Instead, the government proclaimed its “commitment to positive and practical action in relation to human rights”. The “centrepiece” of the Human Rights Framework, to use the government’s term, was human rights education, facilitated through the Human Rights Education Program. With the Australian Human Rights Framework in 2010, the government sought to paper over a gaping hole. Now, in the 2013-14 budget, it is taking away all but a scrap of the paper.
If the Human Rights Act was unnecessary because the same objectives could be achieved through human rights education, and those human rights education programs have now been decimated, can we please have a Human Rights Act?
On the other side of the budget ledger, $68.4 million is provided over two years for increased border surveillance for boat arrivals, making it the third largest commitment in the Attorney-General’s portfolio, after the Royal Commission on Child Abuse and assistance for people affected by floods and natural disasters.
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