Litigants representing themselves should be offered access to some advice and assistance from Legal Aid, as most people who decide to go it alone are doing so because of cost, a new report recommends.
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The Law Institute of Victoria released a report on the state's under-pressure Legal Aid system on Tuesday, recommending the state adopt the Queensland system, which supports lawyers who volunteer their time to assist those who either choose, or can't afford, to go to court without a lawyer.
Law Institute president Kate Miller said although there was no official data, there was anecdotal evidence that the number of self-represented litigants had risen in recent years.
She said this could mean more people risking a poorer outcome. Self-represented litigants often take up more of the court's time than those who are defended, and extra time means extra pressure and cost to the court.
"Such outcomes include a criminal record, jail time, or a poor outcome in a family law dispute. It has also had an impact on already stretched court resources – it might mean legal aid dollars aren't spent, but it does mean more court dollars spent supporting self-represented litigants to ensure that they still have fair hearings," she said.
Queensland operates a self-representation service, which connects litigants with lawyers who can provide them with advice prior to going to court.
Liz Richardson, research assistant at Monash University's Faculty of Law, wrote in The Age last year that the growth in self-representation was putting stress on the justice system, with those cases taking up to five times longer in court.
The Law Institute commissioned the PricewaterhouseCoopers report to investigate alternative ways to provide legal access within Legal Aid's existing budget.
Ms Miller said she hopes the report will be considered as part of the Andrews government's upcoming access to justice inquiry, which was promised when Labor was in opposition.
Other recommendations from the report include:
- Improved data collection and improved transparency over costs differences of in-house lawyers and private practitioners
- The justice system could consider settling certain cases earlier, in a bid to save time and money
- Monitor the quality of service by its preferred list of barristers and solicitors, particularly in regional areas, to ensure quality service
- Urged for broader consultation between Legal Aid and Law Institute Victoria and the Victorian Bar.
Victorian Bar president James Peters QC said the cost of Legal Aid's in-house legal team was a "particular concern", saying the in-house model cost two-and-a-half times more to run criminal cases and up to four times more to run family law cases.
"The report's figures accord with the Victorian Bar's calculations which show that for the cost of employing one in-house lawyer, [Legal Aid] could engage private barristers with the relevant specialist experience to run 20 trials and 20 pleas, more than an in-house lawyer could achieve in any given year," he said.
Legal Aid tightened eligibility criteria in recent years, to ensure its limited funds were directed at the most serious cases, and support the most disadvantaged clients. However, Ms Miller said this efficacy-driven agenda has resulted in people missing out.
"After a certain point, it is not about distinguishing between the needy and the not-needy and it becomes about tough and often inefficient decisions.
"Such decisions are not about efficiency but a system in crisis," she said.
A Legal Aid Victoria spokeswoman said the system already offers a free legal phone line, which took 114,000 calls and provided free legal advice and minor assistance for 48,806 people in 2014-15.
Legal Aid started collecting more detailed data in 2013, but results will not be released for 18 months.
Legal Aid has come under consistent scrutiny in recent years, with stagnated funding one of its core problems.
Ms Miller said the cost of justice in recent years has increased, Legal Aid funding has not kept pace. Although funding has increased by $13.2 million since 2013, this has not been enough to keep up with increasing demand, the report stated.
In the past five years, the number of criminal matters going to court has increased by 29 per cent.
She urged the federal government to adopt a recent Productivity Commission's recommendation to pump an extra $200 million into the system, Australia-wide.
