The Commission has found that the ‘placement of CLCs, however, is largely based on history — CLCs were traditionally established on the initiative of their communities in response to a lack of access to legal services.’
This is only part of the story. Some centres and services have been established by government to meet electoral needs and some have been established to meet a recognised general need, for example, mental health law services.
The Queensland LPITAF review emphasised the need to extend specialist CLC services across the state. It also identified locations of need based on available data.
Some centres, such as Caxton Legal Centre, sees people from all over Brisbane, and further afield in some legal areas, so its location in a higher socio-economic area is not particularly relevant. It is located near public transport and close to its main source of volunteers, the CBD.
Nonetheless, we agree that new services should be targeted to those areas with the highest level of need. That may also include the extension of existing services through other means, such as the use of technology and outreach clinics through non-legal service providers.
We don’t agree that services should necessarily be re-located without an assessment of there current service profile. We agree that in considering the location of services, all four legal assistance providers should be considered.
21.4 Are assistance services targeting the ‘right’ people? Efficient targeting
Draft recommendation 21.2: The Commonwealth and state and territory governments should ensure that the eligibility test for legal assistance services reflect priority groups as set out in the national partnership agreement on legal assistance services and take into account: the circumstances of the applicant; the impact of the legal problem on the applicants life (including their liberty, personal safety, health and ability to meet the basic needs of life); the prospect of success and the appropriateness of spending limited public legal aid funds. Legal service providers make judgments in these sorts of circumstance everyday within the broad priorities, agreements and requirements of government. We agree with this recommendation, but stress that some degree of discretion needs to be built into the system. Either government trusts the institutions it has created to perform these services or it doesn’t. It either trusts the people who in many cases devote their lives to helping others, or it doesn’t (with acceptable accountability measures to prevent abuse). If it does have confidence in the system and the people in it, then it needs to let services get on with the job. Micro-managing and constricting policies will inhibit what the system is set up to achieve.
We agree with the submission of Redfern Legal Centre that CLCs complement the LACs as a more flexible option not limited by strict means and merit tests. Limiting discretion leads to injustice.
A consistent eligibility criteria?
Draft recommendation 21.3: The Commonwealth and state and territory governments should use the national partnership agreement on legal assistance services to align eligibility criteria for civil law cases for legal aid commissions and community legal centres. The financial eligibility test for grants of legal aid should be linked to some established measure of disadvantage. Again we broadly agree with this recommendation, but so long as flexibility is maintained. We do not agree that the CLC approach to determining their own eligibility criteria lacks transparency. CLCs go through detailed processes to determine their eligibility criteria, which also change because of funding and demand pressures. CLC missions and objections are set out in their constitutions and strategic plans that are updated annually and provided to program managers as part of voluminous reporting requirements. We are not aware of forum shopping that occurs as a result of different eligibility tests.
The Commission acknowledges that the majority of CLC clients are from disadvantaged groups. However, it adds that the evidence ‘suggests that where clients live can affect their access to assistance from a CLC.’
This suggests that there is scope to improve horizontal equity (that is, that people in equal circumstances are treated the same way) (p.644).
In our view, while there may be some scope to improve horizontal equity, there will always be communities and groups whose ready access to legal assistance will be impinged by their location and circumstances.
The Commission acknowledges the need for flexibility but suggests that financial eligibility tests be linked to ‘some established measure of disadvantage. Without further elaboration, it is difficult to comment further.
But it should be borne in mind that in litigation at least, great injustices can occur if people are not assisted and the high cost of litigation would prevent many people from obtaining help if the bar is set too high and there is no flexibility to help where hardship will result.
Are the current eligibility criteria for LACs too mean?
We reiterate our earlier point of the need for flexibility and for LACs and CLCs to be trusted to make good decisions in appropriate cases within budget for the benefit of disadvantaged clients experiencing hardship.
We are not aware of any CLC with criteria that is ‘too lax’. However, if the Commission is talking about an example like QPILCH’s Self Representation Service, where we will give any self represented litigant, no mater how wealthy, one appointment, it misunderstands one benefit of this Service. If a client has sufficient funds, we encourage them to obtain private representation and can also point out the difficulties they face in the litigation. This can refer them for paid assistance or divert them from the system. In both ways helping to reduce pressure on the courts.