The underpayment of lawyers who undertake work for Legal Aid clients by way of grants has reached crisis point nationwide. The rates of remuneration are not sufficient to support practitioners to provide quality legal services to vulnerable clients, mostly women who are victims of family violence, children who are at risk of abuse, or clients that live in the regions.
The shortage of regional lawyers means those that do work in the regions are extremely busy. The lack of sustainable remuneration is a barrier to these lawyers from accepting grants of aid to service vulnerable clients.
Private lawyers who undertake legal aid work are on average remunerated a third of what they would receive for private work. Financially, making legal aid work increasingly unviable. The senior practitioner (generally more than five years’ experience) scale rate in Western Australia for Family Court work is $572 per hour. For a junior practitioner (generally less than five years’ experience), the hourly rate is $418 per hour. This compares to the current Legal Aid rate of $175.
In addition, administering the grant of aid including applying for the grant, opening the file, liaising with assessing staff and writing updating reports is unpaid work. WA’s Legal Aid rate of remuneration is below that of NSW for family law and civil matters, which is $195 per hour. In Victoria, the Legal Aid rate is $179 per hour.
Private lawyers provide about three quarters of all Legal Aid work. Those lawyers who are committed to access to justice and wish to perform this work are faced with the same overhead pressures – such as insurance, staff costs, rent, legal subscription services – as private practices who don’t do this work.
To attempt to generate cash flow to pay these overheads and to make a basic living wage, many private Legal Aid lawyers take on an unstainable number of files. These practitioners face considerable mental pressure such as court listing clashes, multiple deadlines for reports or filing of materials leading to deadlines that are often not met. Complaints can follow to Legal Aid Integrity Units or the Legal Practice Board resulting in yet more pressure due to having to respond to these regulatory bodies, resulting in more work with more deadlines. This leads to deteriorating mental and physical health. Ultimately, it can lead to a variation, suspension or even cancellation of a practising certificate.
Many Legal Aid grants involve advising or representing clients with significant personal challenges, such as substance abuse or mental ill-health that are often acute. Obtaining instructions from and communication with these clients can be difficult. Their matters can involve severe domestic violence, assaults including sexual assaults, child abuse and homicide. Approximately 60 per cent of District Court work involves sexual abuse. For many lawyers, this can be unpleasant work and insidiously lead to vicarious trauma, which adds to the mental health burden.
For many years there was a perceived oversupply of law graduates and early career lawyers. The Sydney Morning Herald reported in 2014 that there was a glut of lawyers, citing students completing their courses increased 330 per cent from 1,635 in 2001 to 7,036 in 2012. As a result, many early career lawyers took on Legal Aid grants despite rates of remuneration being well below the scale rate to secure a foothold in the profession.
More experienced practitioners committed to access to justice would commit a portion of their practice to advising and representing Legal Aid clients, even though the Legal Aid rate of remuneration was significantly less than the scale if it was sufficient to cover business costs. This is no longer the case.
Longitudinally, the legal labour force dynamic has changed with tightening of the labour market. According to the Council of Australian Law Deans, in 2015 the 39 law schools across Australia produced 7,583 graduates. The Australian Graduate Survey notes that in 2015, 73.8 per cent of those who graduated from law school four months earlier and were available for employment were in fact employed. In 2023, the Graduate Outcomes Survey noted that in 2023, 84.5 per cent of the College of Law Australia’s graduates were in full-time legal employment.
Lawyers have versatile and transferable skills that are applicable across the public, private and not-for-profit sectors. Lawyers dissatisfied with either remuneration or engaging in mentally hazardous work can realistically seek alternative employment both within and outside of the legal profession.
The circumstances described above have resulted in a limited supply of lawyers and, in particular, a shortage of lawyers willing to undertake contract Legal Aid work, and this especially so in rural and remote regions. This is impacting access to justice not just by meritorious and impecunious and vulnerable clients being unable to obtain legal advice, but by delaying the listing of trials and the cancellation of circuits because of lack of adequately skilled and remunerated defence or respondent lawyers. The shortage is particularly acute with Independent Children’s Lawyers who represent children either being abused or neglected or at risk of the same.
Following the publication of Independent Review of the National Legal Assistance Partnership 2020-25 (the Mundy Report), the federal government announced an increase in legal aid funding by $800 million over five years. However, this funding fell well short of the Mundy Report recommendation that funding for Legal Aid Commissions be sufficient to align Legal Aid rates with court scales to ensure sustainable participation of private practitioners in delivering legal aid services. If the State and Federal Governments fails to bridge this funding gap, then the legal needs of the most vulnerable and the geographically remote will be unmet and our justice system would have failed them.
