Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:09): I indicate that I will be the lead speaker on this bill. I also indicate that the opposition will be supporting this bill. The bill addresses operational issues that may present a barrier to the efficient management of serious cases by the Legal Services Commission. The commission operates on a budget of more than $40 million a year, with contributions from state, commonwealth and private sources. The vast bulk of these funds are used for important but regular assistance.

A small number of cases arise each year for which the commission may seek reimbursement from the Treasurer. By their nature, these may involve different stages of proceedings in different courts and may involve multiple defendants. The bill seeks to wrap up different elements of a larger case, some of which may not be reimbursable under current arrangements and allows this to be dealt with in a single funding arrangement.

The serious cases can vary significantly in frequency and cost. In the past five years, the total annual cost of these sorts of cases, we are advised, has ranged from $60,000 to more than $1 million. Whilst improving the management of a small number of cases, it will not have a major impact on the budget or operations of the commission. The opposition notes that the Legal Services Commission has increased both its revenue and activity in recent years. This has resulted from the commission being chosen to deliver specific programs for things such as domestic violence and the NDIS. These achievements reflect the quality of work delivered by the commission and its value to South Australians who may not otherwise be able to access critical legal support.

In reflecting upon the success of the commission, the opposition notes that other community-focused legal supports have not flourished under this current government. In June 2019, the Welfare Rights Centre, including its housing legal clinic, closed its doors after supporting South Australians for more than 30 years.

This government has recently completed a tender that rolls up tenant information advocacy services with three other housing support services. This is effectively the end of Shelter SA as we know it after 44 years. Shelter SA had its first meetings in early 1974 in the University of Adelaide cafeteria. It started as an informal committee, fashioned along the lines of its counterpart in the United Kingdom to assist in focusing on people in need and living on low incomes. In the past two weeks we have also seen the unforgivable stripping of $2.3 million a year from the Victim Support Service after 40 years of service.

This government is instead providing a much less amount of $800,000 per annum to another organisation, a counselling service. This massive cut will see many of the services of the Victim Support Service previously provided ending completely and will see services that are provided to regional offices end completely. Whilst we hope that Shelter SA and the Victim Support Service will find a way to continue, the government has thumbed their noses at more than a century's worth of combined support to vulnerable South Australians from these services.

In the current climate, with so many people struggling, this defies belief. Changes such as this do not reflect well on the legal and social wellbeing of the most vulnerable amongst us. In offering its support for the bill, the opposition reminds the government of the need to ensure that vulnerable South Australians have access to the legal and other supports they need. As has been noted, the bill makes important but relatively minor changes to the legislation.

That said, the opposition supports the bill and notes that the people of South Australia expect more from a government that should be progressing important changes for the wellbeing of the prosperity of the state, not cutting services to vulnerable people.

The Hon. C. BONAROS (17:13): I also rise to speak in support of the Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Bill 2020. We welcome the introduction of the bill. Historically in Australia, a defendant who could not afford legal representation proceeded unrepresented. This was even the case if the defendant was charged with the most serious of offences. Since the 1992 landmark judgement—I am going to take those lawyers back to law school now—of the High Court in Dietrich v The Queen, the right to legal representation has been firmly enshrined in our common law. That is a good thing and it is what living in a democracy is all about.

Under the Criminal Law (Legal Representation) Act 2001, the Legal Services Commission is armed with providing legal advice to a person charged with a serious offence, regardless of whether they would ordinarily be eligible for a grant of legal assistance. The commission provides an invaluable service to the South Australian community. It is primarily funded by the state and federal governments, with further contributions from the Law Society, pursuant to the Legal Practitioners Act 1981.

State funding is mostly used for criminal law and child protection matters, whereas commonwealth funding contributes primarily to family law matters. In 2018-19, the Legal Services Commission provided 135,000 legal assistant services to the community. This included 16,000 grants of legal aid and 12,790 duty solicitor services in South Australian courts.

The commission also provides an important women's domestic violence court assistance service and a specialist youth legal service, in addition to various community education programs. I have seen firsthand how invaluable those services can be, particularly the provision of duty solicitors for those who appear unrepresented, not only in relation to grants of legal aid but individuals who turn up to court and need some advice before going into court, without going through the formal process of doing a legal aid application. I know that duty solicitors go above and beyond in terms of providing as much of that sort of advice as they can to the benefit of those individuals who need it, particularly in our Magistrates Court jurisdiction.

Proper and predictable funding will ensure that the programs I have referred to can continue, and hopefully even be expanded. The bill, as we know, makes two amendments aimed at eliminating the cost uncertainty of serious criminal cases for the commission and reducing its out-of-pocket costs. It provides for a broader definition of 'legal assistance cost' to truly reflect the costs of legal representation. The expansion of funding to include pre-trial procedures recognises the importance of quality and extensive pre-trial preparation during the committal process, as well as the proper and thorough discovery of documents, amongst other things.

The importance of pre-trial processes is even more profound when you consider that the most serious criminal cases do not go to trial. The advent of discounts for guilty pleas has only encouraged early negotiations during the pre-trial process. I asked the Attorney to provide us some figures in relation to the cost of cases. I was advised that the average total cost of a reimbursable case in the 2019-20 period has been $173,774.40 to date. The cost to the Legal Services Commission has been $80,000 per case.

In 2018-19, the average total cost of a reimbursable case was $185,002.64, of which the cost to the commission was $90,000. The state government reimbursed a total of $950,000 to the commission in 2018-19 under the expensive criminal cases funding agreement. The total reimbursement to the commission presumably will increase with the passing of the bill, and deals with any issues that the Law Society and the government have identified in terms of potential risks to recouping funds in those sorts of cases.

It also expands the scope for funding to allow separate but related trials to be treated as a single case for the purposes of the funding cap, and once again this will provide certainty to the commission, regardless of how complex the matters are with multiple defendants. Complex criminal matters with multiple defendants can be affected by practical issues, such as courtroom sizes or evidentiary issues, and when consulted in relation to the bill the Legal Services Commission indicated its overwhelming support for the amendments.

I did contact the Legal Services Commission to ensure that this was the case, and they have said that 'the commission has been extensively consulted, and we believe we will benefit from this legislation'. On that basis, we are supportive of this bill and ensuring the predictability of funding for our state's prime legal aid provider to allow their important work to continue.

I have to say that there are other areas where I think the government has failed some of our community legal providers. We have raised the issue often in here about JusticeNet, for instance, which picks up a lot of the extra work that would otherwise fall to bodies like the Legal Services Commission to do if they did not exist, and that would cost the government millions of dollars in funding as opposed to the very small amounts of funding they have previously sought.

For the record, I am bitterly disappointed with this government's apparent giving with one hand and taking with the other, and I too refer specifically to the decision to cut the funding of the Victim Support Service. I am sure there will be a lot more to be said about that. I certainly have some things to say about that in due course. I make the point because just as legal representation is critical for the reasons that I have outlined, so too are our responsibilities towards victims of crime. With those words, I indicate our support for the bill.

The Hon. R.I. LUCAS (Treasurer) (17:20): I thank members for their contributions to the second reading.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.