“Austerity”: how to make a justice system cost more, be less just, and increase crime

Just a reminder to idiotic state governments who insist on tinkering with criminal justice by slashing legal aid and changing the law to send people to prison for longer without funding appropriate rehabilitative services: you are making things worse.

You are making offenders worse.

And you are costing the taxpayer a lot more money.

A reminder today from a UK judge of how slashing legal aid actually costs more money in wasted court time (h/t Quis Custodiet Ipsos Custodes):

What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.

This is even worse in criminal law and family law, in which litigants are even less knowledgeable about the law and the consequences of errors are even more serious.

Meanwhile, judges in Victoria, confronted yet again by another product of a prison system that is focused on “punishment” and pays mere lip service to rehabilitation, ask why we’re bent on making people who’ve committed crimes in the past worse:

The prison system is failing society by making young offenders more anti-social and increasingly likely to commit violent crimes after their release, the head of the Victorian Court of Appeal has warned.

Calls made four decades ago to reform the system and encourage rehabilitation had not been heeded, three judges said after hearing an appeal against the sentence of a youth with a long history of violence, who had been in and out of the juvenile justice system when he committed an unprovoked knife attack in 2011.

”The community would still ask today why the prison system has to be so antisocial in operation, why it cannot be improved so that people for whom there is a prospect of reformation are given a real opportunity for self-improvement,” said Court of Appeal president Chris Maxwell and Justices Marcia Neave and Stephen Kaye. ”Time and again courts are told that correctional authorities are simply not adequately resourced to provide the sorts of facilities which are essential if those in prison – many of whom have very serious psychological and behavioural problems – are to be meaningfully rehabilitated and assisted so that, when they are released, they will have some real prospect of reintegration into the community.”

Fortunately, the politicians know that they can completely ignore the above because the mass-market media will almost completely ignore it.

And in the meantime we all pay more to make things worse.

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40 responses to ““Austerity”: how to make a justice system cost more, be less just, and increase crime

  1. I sometimes wonder if we’ll ever grow up.

  2. Classic case of spending pounds to save pennies, never mind the inevitable miscarriages of justice that will be occurring. Who knows how many resources we could actually free up if this particular form of foolishness were eliminated.

    Of course it never seems to be the kind of thing high on the priority list of politicians campaigning to “end waste”…..

  3. narcoticmusing

    To play devil’s advocate, the funding for legal aid increases every year significantly. What we are seeing is less cases per $ – ie it is the cost of representation and the legal system that is a significant barrier, that combined with cases like Cesan distorts where legal aid funding should be spent.

    There is no right to representation in Australia (Cesan notwithstanding). Again, this is yet another problem with not having any form of bill of rights in this country. Nevertheless, the rates being charged, the complete gouging of legal aid by private lawyers (the govt = cash cow syndrome) and the dodgy tactics played are as much if not more at fault than overly simplifying this to ‘austerity’.

    Governments have increased funding to legal aid and yet every year get less cases paid for with more dollars. It is not unreasonable, indeed we should be demanding, accountability for this. These are all of our tax payer dollars. Can we honestly say that representation in a court is say, more important than being seen in a hospital emergency department? You might want both, but then there is always yet another item to add on to the list.

    The purse is always smaller than the demands on it. It is overly simplistic to simply say gimme more money.

  4. Splatterbottom

    So what is the answer, Narcotic? A criminal justice system where defendants can’t afford representation is just that, criminal. At least in the sense that many people are unfairly deprived of their liberty.

    Society benefits from having a legal framework as a means of punishing wrongdoers. The alternative is too terrible to contemplate. In order for that system to function fairly, that is in the interests of members of society, accused persons need competent representation, at least in criminal cases which carry serious penalties. I am not talking about traffic offences here.

    Lawyers who do legal aid work are usually grossly under-remunerated. It is not their responsibility to carry the burden, and it often means that the time which can be allocated to the defence of the accused is not sufficient to allow a fair trial.

  5. narcoticmusing

    I agree with you SB (that there should be a right to representation, but then I think we should have a Rights Act for Australia generally) – however, while the right to representation remains, at best, fragile in Australia it is a tough situation.

    Currently, due to Cesan, a person who is known to be guilty will be provided representation (which on its own is a good thing) but this will be at the expense of other people who also have a strong need for representation for matters that are, perhaps, not criminal but just as dire (such as losing one’s children, or enforcing one’s rights). Indeed, you are more likely to get legal aid as the perpetrator of domestic violence than if you are the victim of it seeking protection or enforcement of a court order (eg relating to stalking, etc).

    This has produced a massively sexist situation, primarily because the majority of (violent criminal) offenders are male and the majority of cases being represented are for violent criminal offences. Another consideration is say, the almost $1 million used for representation of a current case going on with an appeal to the HCA, where the victims were provided a mere couple thousand each. Surely, the money could have arguably been better spent?

    Lawyers engaged by Legal Aid ARE NOT grossly under-paid. The duty lawyers and those employed are, yes, but that is not how most cases are run. Most are out-sourced, so the lawyers maintain their salary plus.

  6. First, it depends on the state. Second, legal aid rates have not kept up with inflation, so those lawyers prepared to do legal aid work are finding it harder and harder to afford.

    Playing off one set of impoverished litigants against another is a nasty game – providing representation for one person should not be “at the expense of” another. This is something that should be properly funded from our taxes. If it isn’t, it will end up costing us all more anyway in the form of court costs, prison costs and increased crime.

    And the bullshit recent decision of Victoria Legal Aid to throw family law clients to the courts unrepresented will hurt children and vulnerable victims of domestic violence – and cause even greater blowouts in the family courts, both in terms of cost and in terms of time.

    Meanwhile NSW Legal Aid won’t even confirm with practitioners before work has to be done whether they’ll fund it, so increasing numbers of private practitioners now simply refuse to do legal aid work in family law at all – leading, again, to unrepresented litigants who cannot find a lawyer to help them.

    By the way, When you say the amount we’re paying for legal aid is increasing, is that on a per capita basis once you take out inflation? Because of course even if legal aid was providing the same service per person, the population is increasing and the value of money is decreasing, so you’d expect the raw numbers to get higher even if the effective cost per person is the same. That’s no reason to reduce services.

  7. narcoticmusing

    Jeremy – you say the decision for Vic Legal Aid is bullshit but you say that as if it was a decision they had lots of alternatives. They have a budget. It is limited. They cannot represent everyone. This is called triage – it happens in hospitals too.

    In the period 2001-02 to 2010-11, the Legal Aid budget almost doubled, yet there was only a 15.5% increase in grants. In the one year 2009-10 to 2010-11 there was a 13.5% increase in the Budget (that is over 6 times the CPI that year) despite that grants decreased over that period. That shows a massive increase in costs. In any other sector there would be outrage, but suddenly because it is lawyers there are only excuses. This is not the government cutting funding or not increasing by CPI. This is not just population growth (that was steady at around 1-1.5%) .

    There is a distinct conflict of interest in the profitibility of the legal industry vis-a-vis efficiency. Current time billing techniques create perverse incentives to create delays which is why lawyers and bodies that represent them are against case management and/or any other mechanism to account for $ and/or seek efficiency.

  8. Time billing has SFA to do with legal aid, which grants in lump sums.

    An increase in spending means an increase in work. What else happened over the same period? Did police charge more people? Were there more errors by courts that needed correcting on appeal? Were there significant changes to the law that increased court time and complexity?

    Point is, none of these are reasons we should try to cut costs by sending ppl out unrepresented.

  9. narcoticmusing

    I’m saying ‘government funding’ isn’t wholly to blame for access to justice issues.

    Billing policies/gaming DOES apply to legal aid when the cases are outsourced – the grants are not set sums, they are based on chargable items. This means there is gaming of it.

    There are also issues overall of how much/how many times to we represent one person vs others. Ie the whole thing is not as simple as ‘fund everything no matter how much it costs.’

  10. Can we all agree that it is unlikely that Australia will ever agree to flood the legal aid system with enough cash to ensure that all litigants are fully funded and able to obtain top-rate representation regardless of who they are or what they are accused of?

    Because if we can then I think we need to start looking at some of the points Narc is raising and asking ourselves – How do we best spend the money we do have? It’s not “nasty” to observe that we have limited resources and thus need to make hard decisions about where we task them.

    We can keep calling for pie in the sky solutions but ultimately that seems a futile way to approach this issue when real and measurable improvements could be achieved through a focused review.

    For example are some private lawyers gouging legal aid as Narc has claimed above? Are cases being unreasonably ‘stretched’ to enable some to milk the cash cow? If so this would seem like an obvious place to start focusing our reform efforts.

    Perhaps it is time to look at ways to increase the efficiency of our legal system instead of allowing it to constantly balloon as lawyers, victims and the accused learn to expect more and more from our already overstretched courts.

  11. narcoticmusing

    Aon v ANU is a perfect of example of the High Court calling out the legal profession for the exact gaming type practices I speak of. Case management, and cost containment are legitimate factors in ensuring access to justice. This is no different to accessing medical treatment. You are assessed based on your need. ‘Need’ in a legal sense is far more subjective than in a medical sense (where need is much more easily categorised based on liklihood of death). We currently use an overly simplistic measure of ‘liklihood of being incarcerated’ without considering the ramifications of other significant issues, such as the loss of your child in a family law case.

    There is significant evidence that the size of the grants has increased so disproportionately to ANY growth factor (population/case complexity/CPI) – the ALRC have shown this, the VLRC have shown this, it is demonstrated in other jurisdictions. But as always, we have the usual suspects pretending government should fund it whatever the cost.

    In the health system, we see the AMA stand up with a person in a wheel chair and talk about how horrid it is they haven’t had their elective surgery yet on their hip – yet the AMA don’t disclose that it is the exorbinate anti-competitive practices of their members that have made the surgeries so expensive that the waiting lists continue to grow dispropritionate to year on year record funding increases (in both per capita, economic and absolute terms). It is the same situation with legal aid, so they triage too.

  12. narcoticmusing

    Time billing has SFA to do with legal aid Time billing is an example of a system that incentives legal professionals to not be efficient and thus decreases access to justice for people who would have normally been able to fund it themselves. That then increases the burden on legal aid who do have to deal with the schedules for the grants (which is also gamed) AND have to manage delays put into courts which enable additional billing (a mechanism of gaming the legal aid system eg. bill for two appearances b/c turn up at the first and immediately petition for adjornment etc).

    An increase in spending means an increase in work.
    No it doesn’t – that is the point made by every single investigation into the increasingly disproportionate growth of costs in the legal space. At the moment, increased spending gives nothing – indeed it often delivers less (that is after factoring in complexity, CPI, growth, etc).

    What else happened over the same period? Did police charge more people?
    That may impact the proportion of people represented, however, the point is that with massively increased funding, we are getting less people represented. Period. So if more people are being charged then in proportional terms it is even a worse situation for the community. Our bang for buck is declining, not the amount of bucks.

    Were there more errors by courts that needed correcting on appeal? And if so, we should question if these errors are significant enough to justify further representation for a person who has already had access to representation. Again, remember, Legal Aid has finite resources – so who would you like to volunteer to not be represented? Or would you rather we just close down the Alfred?

    Were there significant changes to the law that increased court time and complexity?
    Again, extensive inquires have shown that the legislative changes have, overall, acted to reduce court costs (eg case management type rules) which are also the same types of rules that are objected to by legal professionals and their representative bodies.

  13. Splatterbottom

    “Can we all agree that it is unlikely that Australia will ever agree to flood the legal aid system with enough cash to ensure that all litigants are fully funded and able to obtain top-rate representation regardless of who they are or what they are accused of?”

    I agree. As a minimum, I want is for people to go be able to be well enough represented to avoid going to gaol when they should not. This is a civil liberties issue. An integral part of our democratic system is that the state has the role of prosecuting criminals.

    Our system is adversarial. The role of the court is to listen to the adversary positions of the defence and the prosecution and either the jury or judge determines innocence or guilt and the judge determines the sentence. This means that defendants need to be separately represented.

    An alternative is an inquisitorial system where there is a positive duty on the court to determine the facts and to devote resources to doing so. An unrepresented defendant may have more chance in that system even though they would still be disadvantaged.

    Because we have an adversarial system it is necessary, if we are serious about not unjustly depriving people of their liberty, to have defendants represented to a reasonable standard. There is no way around this short of fundamental changes to the system of justice. Providing legal assistance to defendants who otherwise can’t afford it is an integral part of the system. It is, if you like, an cost of having the system like the cost of having judges and court officials. Otherwise we can’t even claim to have a system of justice.

    Also, I would note that there do not appear to be too many people making their fortunes out of providing legal aid. Some firms take cases on a pro bono basis or second young lawyers to legal aid centres as part of their community commitment. When I start hearing ads on the radio touting for legal aid cases like those for ambulance-chasing law firms I might believe that the system is being exploited, but I doubt that will happen any time soon.

  14. narcoticmusing

    I’ve attempted to reply to all the points raised but every single post has been shunted to ‘moderation’.

    Regardless, I’ll try to be simple and say, ideally there would be a right to representation. There is not. Ideally, legal aid would be adequately funded. It is not. So decisions need to be made to triage. Criticizing legal aid for having to make those decisions when the spiraling costs of the legal system mean that it outstrips CPI for no good reason, is at best, an ignorant, biased oversimplification.

    Suggesting that representation be only for the criminal system, is at best, ignorant of the implications/ consequences of other components of the legal system (say, like losing your home or children or safety – note that the defendant in a civil case is just as forced into a court room as a defendant in a criminal case and the stakes may be similarly high or higher). It is at worst, completely sexist (regardless of intentions) as it would see some 90% of all legal aid funding go towards men (which is almost the case anyway as we already to prioritise serious criminal cases) and no funding going towards women, who are disproportionately victims of the legal system (both criminal and civil)..

    Ergo, it is not all as simple as the basic principle of balancing the parties to a criminal procedure in an adversarial system. If only that was all it was – but that is the problem with cases like Cesan, where it was overly simplified to the point that a guilty person can get every level of appeal, but an innocent person may be denied representation as the penalty is not ‘bad enough’.

    I’m not saying people should not be able to appeal (to the contrary) – I’m saying the entire argument is not as simple as ‘fund it cos it is important’. So is every freaking thing that tugs on the public purse. It is abhorrent to not have a right to representation in this country, but so to is it that there is no right to free speech etc. No right to universal health care. We even cynically call the surgery waiting list the ‘elective surgery’ wait list as if people can wait – do the public realise heart transplants count as elective surgery? If it won’t kill you in the next day = elective, so you’re on the list. How is this less important than representation in a court? One is life/death, the other merely detainment. Ergo – not so fucking simple as fund my pet thing.

  15. jordanrastrick

    Well, you’ve convinced me, narcotic. At least in the absence of any alternate explanation being given for the facts you cite of cost growth per capita outstripping CPI (especially given “Again, extensive inquires have shown that the legislative changes have, overall, acted to reduce court costs”).

    Actually I think it was the AMA analogy that did it because I *know* they’re amongst the most powerful anti-competitive special interest lobbies in the country 😛

    Of course I don’t think there is any contradiction between “legal aid needs more resources” and “existing legal aid resources are being misspent and poorly allocated”, nor with the point raised earlier that “unrepresented clients end up costing the government more overall.” I think every individual should have a right to representation, and the closer we get to that ideal the better, but that doesn’t mean we can afford to be careless in the way we spend money achieving the objective.

  16. narcoticmusing

    The problem we are seeing is the issue with all forms of preventative / diversion type funding. It is really, really hard to prove that your particular prevention/diversion strategy was what worked – and even worse if your thing was funded (but often underfunded so that it is doomed to fail – and then it does fail – how to prove next time that a properly funded approach will succeed?

    I’m far more familiar with the health system, so I’ll give an analogy from that. Prevention and health promotion activities will logically reduce the burden on the acute (and far more expensive) system. But prove it, that is harder. All the complexities start coming in to play because nothing is a one-to-one situation. It is easy to show correllation, but causation is much harder. Furthermore, funding prevention/promotion means duplication of funding (at least initially) as there is a lag effect (of often far more than a single government term) to demonstrate success. It took over a decade to show the needle and syringe program was making a massive difference and even then, its impacts are debated because there are a range of causes of the spread of such diseases.

    We see the same in the justice system. Yes, logically, we are better off with diversion programs and other measures that addresss causes of crime/recidivism (such as some of the really excellent AOD programs and rehabiliation programs that don’t make anywhere near the impact they could because they are just grossly underfunded). However, you still have people from those programs that committ crime. You still have relapses into behaviours, friend groups. This undermines any success from the program. Indeed,the lack of funding of the program undermines the program.

    We also have a complete lack of people who can argue in the language that matters to government – economic impact. Too many people say ‘fund it not matter what it costs because it is important’ as if this were the only thing the public purse had to deal with.

  17. narcoticmusing

    I should clarify, I’m not claiming lawyers who work for legal aid are the bad guys here. The employees of legal aid and duty lawyers work their backsides off for not much. Same with private lawyers engaged by Legal Aid – generally, they are working for very minimal rates. Nevertheless, legal aid is not the bad guy either if it simply does not have the funds to fund what we’d like – it cannot make money from thin air – it has no access to the consolidated fund.

    Furthermore, I’m saying that much of legal aid’s grants go to law firms and is simply outsourced – this is, in my opinion, gamed, as is much of the legal system. This gaming also impacts people who would have funded litigation themselves but then suddenly can’t afford to. Access to justice isn’t just about paying for everyone, it is also about making it affordable.

    Since the beginning, lawyers have gamed the legal system to make as much $ as possible. Eg. when legal fees were based on volume of documentation, rules had to be introduced to fix a minimum words per page as lawyers were putting one word per page to maximise the volume – in some respects this is all well and good as it is a self-interest based system. But it does point out the conflict of interest in mechanisms to reduce legal costs and lawyers interests (and their advocates such as LIV) as they are the primary source of those costs. This is like the health system, where wages make up the majority of the costs.

  18. We also have a complete lack of people who can argue in the language that matters to government – economic impact. Too many people say ‘fund it not matter what it costs because it is important’ as if this were the only thing the public purse had to deal with.

    Existing minor parties doing this routinely is one of the main reasons I got involved in the Future Party.

  19. Splatterbottom

    Narcotic: “I’m saying the entire argument is not as simple as ‘fund it cos it is important’. So is every freaking thing that tugs on the public purse.”

    Not every ‘tug’ is equally worthwhile. Just imagine what could have been done with the billions wasted on desalination plants or on forcing people to pay more for ‘green’ energy or the money wasted subsidising middle class wankers to install solar panels. Sadly there are too many ‘tuggers’ like that cretin Flannery who have managed to have us waste billions on unicorn farms and the like.

    The point is that billions are wasted, not only on totally useless things, but also on things that are way less important than keeping citizens from being deprived of their liberty.

  20. narcoticmusing

    SB – the problem with your argument is the problem with everyone who thinks their pet thing is that important. It goes something like, My thing is special so it should be funded instead of whatever your thing is b/c your thing is stupid/not important/doesn’t help x group/ like mine does.

    We also have the problem that the political ideologies most pre-disposed to depriving people of their liberty are also the ones least likely to invest in programs to a) provide/fund representation; b) rehabilitation; c) deterrence/diversion; d) treatment. So for people that never have/will commit a crime, perhaps they are over all the money going to what they see as criminals – certainly the media assists with that perception.

    So I agree that not every tug on the purse is as worthy as the other, but not even you and me would be able to agree on what should/shouldn’t let alone governments.

  21. Splatterbottom

    Narcotic: “So I agree that not every tug on the purse is as worthy as the other, but not even you and me would be able to agree on what should/shouldn’t let alone governments.”

    There is a lot we would agree on. I would hope that ensuring citizens are not thrown into gaol when they are innocent of the charges brought against them is one of those things.

  22. narcoticmusing

    SB, I certainly do agree with that, however that doesn’t mean that everyone would – not if they knew the costs to do so – which is why we do not yet have a right to represetation. I’d also put to you that the consequences of going to prison are over-stated compared to the consequences of many other legal proceedings which can include: losing your home; losing your children; losing your safety; being deported.

    Would you, for example, be happy for people who were pleading guilty to not be represented? If so, how do we encourage guilty people to plead guilty? If not, why should we defend with public dollars a guilty person given the other impacts of legal proceedings listed above? Ergo – not as simple. I wish it were as simple as the laudable principles you cite, but it isn’t. You have to dig below the surface to discover that.

    I’d also ask, given that the public purse is finite, what would you give up for that privilege of representation for all? And do you think we could all agree on that? I don’t.

  23. narcoticmusing

    One last point I’d make – regardless of your position on the above, do you not think we should be trying to make the legal system more affordable so that people can self-fund their defence rather than having to rely on the public purse? This has been my primary point – the legal system being so expensive does not just hurt the public purse via legal aid, but it hurts via making it inaccessible to people who should have otherwise been able to access it. In this way, the legal system is oppressive as it grants access only to the wealthiest of parties. Ergo, we need to make the legal system less costly and more accessible generally – all will benefit from this (except perhaps those lawyers gouging /exploiting the system).

  24. Splatterbottom

    Narcotic, I remember as thirteen year old going into the local police station and asking for a copy of the law on the basis that if I was expected to obey it I should be able to know what it was. I was frustrated that the cops told me to just use my common sense and thought that this was deeply unfair.

    I may still be an idealist, but I think it is fundamentally unfair that innocent people should be locked up. If our system of justice is indeed just then it needs to provide for participants to be represented, particularly in matters where there liberty is at stake. We need to face up to the fact that to be fair, the system will be expensive. The overall benefit to society of having a system of justice is huge. And benefit is greater the more just the system is. we end up with a better society.

    We don’t know if someone is guilty until the case has been adjudicated. The incentive for the guilty to plead their guilt is the prospect of being better able to show contrition and to obtain a reduced sentence.

    Usually the cost of simplifying the system is that it becomes more arbitrary. This happened in the eighties when the workers compensation system was reformed to reduce legal costs. It was hoped that the legal costs would be reduced from 20% to 10%.

    Another approach might be to look at spending on measures to reduce crime. One of the good things AG Smith is proposing in NSW is to try to reduce the juvenile prison population on the basis that locking up young offenders is often unnecessary and also counter-productive.

  25. narcoticmusing

    SB, I agree with all that you have said. We both agree that there should be a right to representation, we both agree the current setup is underfunded. I do however implore you to consider two things.

    1) that the consequences in other parts of the justice system can be just as grave as a sentence, and can indeed include death.

    2) I do not believe the system needs to be as expensive as it is. The Civil Procedure Act in Victoria has already shown this can be better without being arbitrary – it is about reducing exploitation of court procedures and other elements – consider the example I raised earlier that when lawyers were paid by how many papers they lodged, they’d put one sentence (in some cases one word) per page just to up the fees – is that just? Is that something that can be easily modified without making the system arbitrary? Of course it is. Case management is about access to justice for all, not just the rich and not just criminal justice. That the law is prohibitively expensive – access to justice means more than just criminal justice, and that too is prohibitively expensive. A defendent is almost always an unwilling participant, and is thus always in an unfair position if innocent.

  26. Splatterbottom

    Narcotic, I think we as close to agreeing on this as anything. I acknowledge that there are cost constraints, but I think the physical liberty of citizens should be prioritised. Also, a lot of the procedures in criminal law are to reduce the chances of wrongful conviction. We would need to be careful of any changes.

  27. narcoticmusing

    SB, I’m not sure you are hearing me. We both agree on the ‘shoulds’. Those, however, are not the current situation. Access to justice is not just about getting some help if you are going to go to prison and would like to .

    I had hoped you would consider my other points rather than repeat what you had already said that I was not debating/disagreeing with anyway.

    I suppose it is hopeless – if we cannot even have reasonable debate at a forum such as this, where is all just becomes over-simplifed, there is little wonder the system is so fucked up and there is little to no real access to justice for anyone but the wealthy. Jeremy made some genunine and necessary points but debate is stifled by fist thumping and a refusal of people to face reality. This is why it is so easy for politicians to not fund any of this well enough, because they can resort to ideology and pretending the facts (such as deterence and rehabilitation being far better at reducing crime than prison) don’t exist.

  28. Splatterbottom

    Narcotic: “Access to justice is not just about getting some help if you are going to go to prison and would like to .”

    I heard that. And I agree with it to some extent. But I don’t feel capable of contributing much to the discussion beyond a general preference for prioritising physical liberty.

    I really don’t know much about the options for civil matters. Usually if a lot is at stake then that is because the parties have some capacity to pay. If they win they will recover most of their costs. Litigation funding can help as do contingency fees. Obviously simplifying procedure also helps and judges are generally keen on this, some more so than others. But fundamentally, it costs more to argue a case well, particularly if complex legal principles are involved.

    Dealing with large entities is difficult for individuals. In some areas like banking and telecommunications, industry ombudsmen help as do the various consumer and rental tribunals. Exemplary damages can deter large corporations to some extent. Maybe these should be expanded.

    The ACCC also helps in cases where a lot of consumers are disadvantaged by bad corporate behaviour.

    In tax matters individuals face a well resourced and highly litigious government agency. The have a test-case program which is hamstrung with regulations and the budget for it is rarely expended in any year. I had a friend who had a tax issue recently. Basically about a valuation threshold for a reduced rate of tax on small businesses. He got two valuations and the ATO said they had a contrary valuation. He had to pay half the tax upfront before going to court. Just prior to the hearing, the ATO conceded and admitted that they did not even have a valuation. That process took two years and he had to sell his investment property (and get taxed on a gain in the process) to pay $600k to the ATO. At the end he had his money back (less the tax he had to pay) and had to invest in a cheaper property. He also incurred about $60k of legal and accounting fees which he could not recover. If that was me, I could not afford to even have the argument.

    Still, I don’t know what the answer to that is – exemplary damages? If you make funding too easily available, everyone will want to argue with the ATO. The rules in tax are harsh to stop tax avoiders stringing out the system, but a lot of people get stung in the process. Probably everyone knows someone who screwed up their tax return or BAS statement and got threatened with bankruptcy, often over a relatively small amount that they couldn’t cover themselves and couldn’t afford to take expensive advice on.

    The various human rights tribunals are an abomination. The onus of proof is often reversed, the complainant usually doesn’t have to pay costs and the defendant usually doesn’t recover costs even if they win, so that even if that is the outcome, the process itself is the penalty for the defendant whereas the complainant generally has no skin in the game. Another example – a friend’s family own a caravan park. They refuse to rent to an aboriginal with a bad payment history. Notwithstanding that about a third of the residents are aboriginal, a letter of demand is written by the local legal rights centre, and they pay $2k rather than be dragged before a tribunal. Again, what do you do? The system has been made easier for complainants so they don’t get screwed, but once you tilt the balance, someone else gets screwed.

    I am happy for all of the above and any other relevant matters to be examined, which is what I suppose the various law reform commissions and interested advocacy groups do. I don’t think that I can add much else. I certainly don’t know how to balance up the competing issues and approaches. But I do feel strongly that when it comes to being thrown into gaol, many people need assistance and we ought, as a matter of basic principle, provide it.

  29. narcoticmusing

    Currently SB, Legal Aid does prioritise based on liklihood of being thrown in gaol. This presents a very skewed and unjust outcome, where you have say, a person wanting a restraining order enforced and not having access to legal assistance, but the person doing the assault does. There are some pretty significant consequences to access to justice beyond merely prison. Victims of crime, for example, have no representation in criminal matters and are often harmed further by the process by being treated in a hostile manner. Only worrying about liklihood of gaol also creates a very sexist system, where almost all the $ goes to men – we already have a prison system set up where there are no medium level and few places at low sec for women, causing women to have to go to high security for low level crimes; yet the man has many, many more times chance of getting legal aid. Rehab programs for women are pretty much non-existant, for men, they are underfunded and inconsistent but do exist.

    When you have a situation where violence against women is the no 1 cause of preventable hospitalisation and death (21-40yrs), it shows some of the depth of the problem.

    I’ll summarise with what I said earlier: ideally there would be a right to representation. There is not. Ideally, legal aid would be adequately funded. It is not. So decisions need to be made to triage. What would you give up to fund it? Would your neighbour agree?

  30. What would I give up to fund legal aid properly? Easy. Tax cuts. Also, as a result of funding legal aid properly, courts would be cheaper and so would be prisons.

  31. narcoticmusing

    A two part response J – 1st – which tax cuts and for whom? And the 2nd part Jeremy (given we live in a democracy) – would your neighbour agree? In a democracy it has to be sufficient that it can generate the critical mass needed to substantiate change. Simply because those of us here agree it is a worthy cause is not enough.

    We need either a) critical mass of popular support; b) an amazing business case that can demonstrate the economic cost-benefit (which is almost impossible to do for prevention b/c we keep under-funding the programs so they are undermined and cannot then demonstrate the benefit they would produce if they were funded properly; c) a combination and a and b.

  32. 1. Any tax cuts. Starting with those for the highest earners. Oh, and tax CGT like income except on primary homes. Tax super income like income.

    2. If neighbour would prefer tax cuts to properly funded legal aid, I’d argue why that’s a bad choice that causes more harm than good.

  33. Splatterbottom

    Narcotic: “where you have say, a person wanting a restraining order enforced and not having access to legal assistance, but the person doing the assault does.”

    If you have the order and the issue is enforcement, is that not a matter for the police?

    ” Victims of crime, for example, have no representation in criminal matters …. “

    A criminal matter is between the state and the criminal. Victims can make a separate claim for compensation and can take civil action against the criminal if they wish. They also get to make a victim impact statement. This would be a very low priority on my list.

    “and are often harmed further by the process by being treated in a hostile manner.”

    This is not really about funding anyway, but I can’t think of a fair system that does not require the testing of witnesses. If witnesses do not want to be tested then prosecutions will be very much more difficult. There is no easy answer to that.

    “Only worrying about likelihood of gaol also creates a very sexist system, where almost all the $ goes to men”

    Do you realise how utterly ridiculous that argument is?

    If men are over-represented in the prison population then there must be discrimination against them going on, no? Or does that argument only work for designated victim groups? Please tell me.

    If you just want more money for women because they are women, then come right out and say it.

    If you want money to address a particular problem (like the cost of obtaining a restraining order, which is not the exclusive prerogative of women anyway) then just focus on that issue and leave the contemptible identity politics out of it. Bashing men is no different to bashing blacks, gays, women or any other group.

    There is a lot of unfairness around restraining orders, and it goes both ways. The whole system needs to be reviewed.

    “What would you give up to fund it? Would your neighbour agree?”

    Not building desalination plants (say $6-8 billion and counting) would have paid for a lot of legal aid. I would immediately abolish mandatory requirements for green electricity. That would save billions more and have no negative consequences. I would definitely can the NBN. It is a complete waste of money. There is another $50-90bn. That should do it. In fact while the Libs plan to spend $30bn is almost as bad, most of us can live with 25-100mbps and that would save tens of billions. (I get mostly 24mbps and can drop a movie in about 8 minutes. Maybe people could make do with that. I’m happy with it.)

    Jeremy: “What would I give up to fund legal aid properly? Easy. Tax cuts.”

    As the great Margaret Thatcher noted: “The problem with socialism is that eventually you run out of other people’s money.”

  34. What utter tripe. You can fund decent and necessary public services through progressive taxation without “running out of other people’s money”.

    And it makes the country a hell of a lot better a place to live than what Thatcher did to Britain.

  35. Oh, and SB – I think you misunderstood the Libs’ broadband scheme. It’s to spend $30bn to provide broadband capped for much of the country at 25mbps indefinitely. And the NBN, which is 1000mbps, is $44bn, not $90.

    But on the plus side for the Libs, News Ltd is in favour, so they’ll lie to their readers until they believe it’s not the utter shit it is.

  36. narcoticmusing

    If you have the order and the issue is enforcement, is that not a matter for the police?
    It isn’t that simple. Nor is actually getting the order in the first place without representation or support.

    Victims can make a separate claim for compensation and can take civil action against the criminal if they wish
    No, they can’t. That is my point about the system being inaccessible because it is prohibitively expensive. Without representation this is not an option for most victims of crime (not limited to women, but women are often in a significant disadvantage in civil matters relating to partners as the are often without choice financially dependent on the partner and/or have sexually acquired debts from them).

    If men are over-represented in the prison population then there must be discrimination against them going on
    Surely you don’t think that is my argument? Surely you know me better than that? The argument is that as men are over-represented as perpetrators of the type of crimes that would be funded by legal aid, the funding primarily goes to them. The question of the impact/outcome of proceedings and the impact is not asked. As you said earlier, arbitrary judgments can lead to injustice – that is what is occurring. There is significant literature on this matter. I am not suggesting that we should not fund legal aid for men just because they are the main perpetrator of crimes, I am suggesting that not considering the consequences of other parts of the justice system being inaccessible (eg family/civil/immigration/etc) can cause just as great a consequence as deprivation of liberty.

    SB, it is not ideology, it is a reality that women are disproportionately represented as victims of crime. You advocate a system that funds assistance for the perpetrators (which I also endorse) but that does not provide assistance for the victims. What this results in, is further victims and a not so subtle endorsement, at least from the victims perspective (and that of say, the causes of morbidity and mortality evidence) of abuse. The abuser is aided by the public purse, the abusee is further abused. A professionally defended party vs her word. How is this justice? And then you have asshats wondering why women don’t leave their abuser – for what? A system that will support the abuser, fund his defence, and let her rot?

    Whether you like it or not, there is sexism in crime statistics. There is sexism in the morbidity and mortality causes. The no 1 cause of preventable injury and death for women under 45 is violence from a man (predominantly the domestic partner). This is not a third world issue – it is right here.

  37. narcoticmusing

    And SB, thank you for listing a bunch of examples that many would not agree with that demonstrates my point exactly.

  38. narcoticmusing

    J – for the record – I agree with your sentiments. I would also consider a 1% increase to the GST to not only fund legal aid, but adequately fund prevention, diversion and rehabilitation programs to enable them to actually perform their role rather than the current situation where they are funded so poorly their impact is barely noticeable, such that their own evidence of success cannot be used to build a business case for their expansion. One hopes that this ‘fund it enough for it to fail’ approach is not intentional.

  39. SB, it is not ideology, it is a reality that women are disproportionately represented as victims of crime. You advocate a system that funds assistance for the perpetrators (which I also endorse) but that does not provide assistance for the victims. What this results in, is further victims and a not so subtle endorsement, at least from the victims perspective (and that of say, the causes of morbidity and mortality evidence) of abuse. The abuser is aided by the public purse, the abusee is further abused. A professionally defended party vs her word. How is this justice? And then you have asshats wondering why women don’t leave their abuser – for what? A system that will support the abuser, fund his defence, and let her rot?

    Sorry, but this just isn’t correct. There’s truckloads of assistance for victims, in terms of legal aid for restraining/intervention order cases, counselling, social workers to support you at court, screens/remote witness facilities so your abuser doesn’t even get to see you, police to enforce restraining/intervention orders, victims of crime assistance, etc. And I’m not suggesting there should be any less than there is in that regard. No way does the system “let her rot”. The abuser gets legal aid only when he’s a good chance of going to prison, which you already said you support. And in Victoria at least, he can also get the court to order legal aid to represent him for cross-examination of his victim in family violence matters – which is mainly for her benefit; he’s barred from questioning her himself as that’s seen to be furthering the abuse.

  40. Splatterbottom

    Narcotic: “SB, it is not ideology, it is a reality that women are disproportionately represented as victims of crime. You advocate a system that funds assistance for the perpetrators (which I also endorse) but that does not provide assistance for the victims.”

    Would your view be different if men and women were equally represented among the accused? (Your use of “perpetrator presumes guilt – accused is the correct designation for the purposes of this discussion.) I don’t think gender is relevant at all. The issue is the circumstances of the party.

    In a criminal trial it is the accused that is on trial and stands to lose their liberty. That is one case where we both agree legal aid is necessary. The victim is not a party to the proceedings. If the victim is required to give evidence they generally don’t require legal advice. Counsel for the defence has an interest in ensuring that, to the extent possible the accused is shielded from unfair questioning and a responsibility to do so.

    Nor is there an overriding need for the victim to get legal aid to make a victim statement. In NSW there is some government support and a simplified process to claim compensation. Again, this should be gender neutral.

    I don’t want you to think I am being insensitive here. Over three generations six women in my family (that I know of) have been seriously sexually assaulted. My own mother witnessed her mother being bashed and raped by her drunken father on more than one occasion and was bashed herself. My adopted sister was repeatedly raped by her own father. Another sister was raped by a teacher when a year 10 student at a state high school and also later anally raped by a partner, another sister was assaulted while out jogging a few years later. And there is one more too painful to talk about. I am crying as I type this. And white with rage.

    None of the men involved was brought to justice. So I am acutely aware that sexual violence falls mainly on women and of the destruction it causes, and that it is not something uncommon and that very little of it is properly dealt with. In fact I suspect most women are sexually assaulted at some time in their lives. And the personal cost getting involved with the legal system results in very few such matters being publicised, much less prosecuted. This is a shameful aspect of our society.

    In spite of all of this, or maybe because of it, I don’t think legal aid will help very much. Counselling and support will. A decent and sympathetic attitude by police will. In some of those cases, the police have been helpful and willing to prosecute. In the older cases, domestic violence was not dealt with at all well by the police and it was a very hard thing to bring an accusation against a teacher in the seventies.

    The legal system does need changing, but fairness requires witnesses to be tested in court. Cases like counsel for the defense trying to unsettle a witness by asking her what it felt like to be penetrated (and then withdrawing the question – he knew it was wrong but just wanted the tactical advantage) should not be allowed. The barrister (a prominent Senior Counsel in NSW) should have been disciplined, but was not.

    I am not in favour of disadvantaging victims, and I do believe that they should be given assistance including legal assistance, but only where it will actually do some good. Getting that right involves a lot of study and careful consideration. The reason I don’t have specific solutions is that I am in no position to say much that is useful.

    I thought hard about putting up the family history but I am sure that not even my harshest critics here will misuse the information even if they discover my identity. I also thought there was value in saying it as a lot of men are unaware of the extent of sexual assault and even of situations in their own families. Some of this I did not find out until much later in life. I had no real idea how common sexual assault was and is. In a couple of the more recent cases, it was easier for the victims to talk about it and get support from the family and from the police, and that does represent at least a tiny bit of social progress.

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