Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I seek leave to speak on committee reports Nos 3 and 4 from the Legal and Constitutional Affairs References Committee.

Leave granted.

by leave—I move:

That the Senate take note of the reports.

The Legal and Constitutional Affairs References Committee report Australia’s judicial system and the role of judges was a unanimous report. I want to thank my fellow committee members, Senators Crossin, Feeney, Fisher, Ludlam and Trood and the participating members—our shadow Attorney, Senator George Brandis, and Senator Bill Heffernan—for their participation in this committee. The inquiry commenced in February last year and we reported in December just last year.

It was a lengthy inquiry. It was one of the most enjoyable and informative inquiries that I have been involved with in my time here since 2002. I very much appreciated the opportunity to learn more about the merit of the national judicial system that we have here in this country, the role of judges and their important place in our Constitution. In particular I want to draw to the attention of the Senate and the public the fact that we had 44 submissions and we had hearings in Sydney, Melbourne, Perth and Canberra. It was a lengthy inquiry but worthy of very important consideration.

The terms of reference were reasonably broad. They looked at the procedures for appointment and method of termination of judges, the term of appointment and the merit of full-time, part-time and other arrangements, jurisdictional issues, the interface between the federal and state judicial systems, and in particular the judicial complaints handling system. It is the latter point in particular that had a lot of interest in terms of the submissions and in the presentations made at the hearings we had.

The judicial complaints handling system is certainly something that is in need of reform. I am not going to great length other than to say that some of the key recommendations were set out in the report. In fact there were 16 and I just want to highlight some of the recommendations in the report. I know that the government is giving this serious consideration and I appreciate that on behalf of the committee members and the committee participants. At this juncture I do want to thank the secretariat, Peter Hallahan and his team, Toni Dawes, who has just recently resigned from the Legal and Constitutional Affairs Committee, and I thank her for her support, and Cassimah Mackay and the team at the secretariat.

We have recommended that the High Court of Australia adopt a written complaint handling policy and make it publicly available. It will be interesting to hear the response to that at the Senate estimates next week when we have the opportunity to address them on that matter. We have recommended that all Federal Courts publish quarterly complaint handling summary status reports, and we have made recommendations about the appointment of federal judicial officers. We support a nationally consistent compulsory retirement age for judicial officers and encourage each jurisdiction to implement it within the next four years. The committee has recommended that at the next Commonwealth referendum section 72 of the Constitution should be amended in relation to the compulsory retirement age for judges. Currently it is 70 years, and the committee is of the view that it should increase perhaps to 72 years or thereabouts, essentially to provide that the federal judicial officers are appointed until an age fixed by the parliament. This would provide some flexibility, and I think there is a lot of common sense in that recommendation. Again, I hope the government and all members of parliament support such an approach.

We made recommendations in respect of the merit of short- and long-term part-time working arrangements. We had issues in Tasmania, for example, which were quite precarious and controversial, where the Attorney made appointments down there which were certainly against the best interests of the public in Tasmania. There were other examples put to the committee so we have made recommendations there.

Probably the main recommendation out of this report is in favour of the establishment of a federal judicial commission modelled on the Judicial Commission of New South Wales. It would include three functions in particular: it would include a complaints handling system; it would assist the courts to achieve consistency in sentencing; and it would provide a service for the judicial education of our judges wherever they may be around the country. In that regard, I notice that the Tasmanian Attorney-General has accepted our second proposition. They have just announced in the last seven days a better and more consistent approach to providing sentencing and assisting judges in the judging and sentencing arrangements.

The committee felt strongly that the current avenues of complaint are seriously inadequate. They need to be improved and upgraded. We have quoted in the report Sir Anthony Mason, who said:

… the constitutional procedure does not address cases of misconduct or incapacity which are incapable of justifying removal. A judge may be guilty of delay, discourtesy, gender bias or of less serious misconduct which does not justify removal but could merit an expression of disapproval, a caution or counselling by a head of jurisdiction.

We go further to say that there should be an independent national judicial commission that would be established and ensure that that process was not only done fairly and properly but would be seen to be done fairly and properly, and we give further evidence in that regard.

We had an informal tour of the Judicial Commission of New South Wales. On behalf of the committee, I want to put on record our thanks to Mr Ernest Schmatt PSM, Chief Executive of the Judicial Commission of New South Wales, for his tremendous support and encouragement and the informative review he provided to members of the committee and the secretariat with respect to what is happening in New South Wales. That commission was established in 1986 and is regarded highly not only in Australia but around the world. It is an excellent system that operates well in New South Wales. I commend him and the New South Wales commission. It is that prototype that we are recommending at the national level.

There has been a lot of media on this topic, and on our report in particular, since the December release of the report. I know that even today in the Australian Financial Review there is a call for a national judiciary which is supported by New South Wales Chief Justice Jim Spigelman. I notice that the Attorney-General, Robert McClelland, called critics of the reform process short-sighted and said that ‘the government would consider unilateral action if necessary to ensure the reforms came to fruition’. We have recommended that the functions currently fulfilled by the National Judicial College of Australia be incorporated into a new judicial commission and that legislation be introduced into the federal parliament to establish a national judicial commission.

On that note, I commend the report to the Senate. I think there is a lot of merit in it. The feedback since the report was released has been very positive. Of course budgetary constraints are very important, but I note that in New South Wales there is $5.1 million for the Judicial Commission per year. One-third of all the judicial officers in Australia operate in the New South Wales courts. So I think in terms of cost benefit, the benefits will flow as a result of the establishment of the commission. I commend the report to the Senate and look forward to receiving feedback from the government in due course.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I want to add some remarks to the chair’s comments on item 4 of documents presented out of sitting, which was the second report of the Senate Legal and Constitutional Affairs References Committee. The committee undertook, in parallel with the inquiry into the judicial system and the role of judges, an inquiry into access to justice. It was held under the broad framework of looking at a review of all the work that has been done on this in Australia, through various committees inside and outside of parliament, over the last 10 or 15 years. It came to the very strong conclusion that committees have long been making recommendations about access to justice—specifically the asymmetries in people’s ability to access justice—and that most of the recommendations from the various committees, going back 10 or 15 years, still remain unaddressed to this day.

I am really proud of the work that the committee undertook, under Senator Barnett as chair but with solid contributions from all parties and everybody who got involved in this inquiry. I particularly mention the helpful assistance received from the committee secretariat, including Mr Peter Hallahan, who is probably going to be mentioned a number of times today, who really went beyond the call of duty. A lot of witnesses appeared before this committee to basically tell us, ‘This needs to be the last time we turn up. We’ve been telling parliamentary committees for 10 years that access to justice in this country is, in some senses, broken.’ People were using words like ‘crisis’ or ‘beyond crisis’.

What we are specifically referring to, really, is the difficulties that are faced by the community legal sector in representing people who find themselves caught up in the judicial system for one reason or another. That applies right across the board, whether it be family law, environmental law or any other kind of matter. There is an enormous hierarchy in this country when it comes to access to justice. Unfortunately, in some cases, through structural inequalities in our justice system, the kind of justice that you can access comes down to the size of your cheque book.

We established the inquiry in February of last year. We spent six months on this project. We took 68 submissions and held four public hearings. We reported late last year, with 31 recommendations that were unanimous right across the parliament. I think many of them will be very familiar to the government or to people who have been following this debate for a while because they are indeed recommendations that committees have been making for a long period of time. What we looked at were the longstanding gaps in our legal system and the fact that if people who seek legal help need to draw on Legal Aid or access the community legal sector, sometimes that help simply is not there. We do not even have a clear idea of the unmet need.

What we do know is that Aboriginal people, and particularly Aboriginal women, are singled out as the people least able to access justice under the Australian system. This is for a variety of reasons, whether it be the complexity of the legal system, a lack of resources—which is obviously the big one—remoteness, in some cases, or language barriers. People speaking English as a second or third language have been dragged into the court system for things that are simply incomprehensible. Right before the committee reported, we saw in the press reports of a kid who was detained for being in possession of a stolen Freddo frog. He was an Aboriginal kid in regional Western Australia. That very strongly underlined exactly the findings of the committee that Aboriginal people are viciously overrepresented in our legal system and that there are very important structural reasons for that.

Many of our recommendations go directly to the urgent resourcing of Legal Aid and the community legal sector more broadly. I think these recommendations are very well timed. They need to go into the government’s budget considerations for budget round 2010. What we need to see in this area in the forthcoming Commonwealth budget is structural funding underpinning the health of the legal system so that people actually can access justice. Everybody who presented before us was grateful that the Attorney-General had put a bandaid on a badly leaking and bleeding system. They were glad that there was some interim funding there to allow the community legal sector to survive, but everybody acknowledged that that is not the way to go forward. We need structural, ongoing funding to remove the gross inequities, distortions and asymmetries in our legal system in Australia.

As I said, the recommendations that were made were unanimous. There is actually very little in the report that I disagree with, because of the collaborative approach that was taken by everybody who participated in this inquiry, but there were a number of points that we felt were very important to make in addition, without undermining the work that the committee has done unanimously. The first recommendation we made was that the current purchaser-provider funding arrangement be abolished, because that is one of the things that has led to the structural asymmetry and people in community legal centres being simply unable to fund the retention of solicitors, researchers or people to run the basic operations at CLCs. The further you get from the big cities, the harder it gets to run these operations and the harder it is to retain staff.

Another recommendation we made was that there should be a right to legal representation. Without a bill of rights, and without these things spelt out in our Constitution, the right to legal representation in Australia is highly ambiguous. What we are finding with the skyrocketing number of self-represented litigants in our court system is that it is a disaster for many of those people, and it also unnecessarily ties up the courts with matters that should not have been referred to court or could have been dealt with more rapidly if people had adequate representation in the court system.

In one of the hearings we held in Sydney a matter was raised around the Migration Act 1958 which absolutely stood out as an urgent piece of law reform for us. Ms Skye Rose, project manager, and John Corker, president, of the National Pro Bono Resource Centre gave evidence to the .committee in Sydney last September about these provisions. Sections 468E and 468F require lawyers to provide a certificate stipulating that there are reasonable prospects of success in the matter, which enables cost orders to be made against lawyers in unsuccessful cases. I do not know whether there is anything else in any statute in Australia that requires that kind of undertaking from lawyers. And obviously it has a really chilling effect on people’s ability to access representation—some of the most vulnerable and marginalised people who are finding their way into the court system. So one of the recommendations we made was that that should simply be repealed without further debate.

There is another things that I think would have been a helpful recommendation to get into the majority report. You will notice that many of the recommendations we made signal the need for urgent research in different areas of law reform. We proposed that a legal resources research centre be established—as did a number of submitters and witnesses—that would basically wrap some of these different proposals for far-reaching law and policy research to be undertaken under one roof. We thought it was quite a good proposal. There is a model in the UK, the UK Legal Service Research Centre, which provides us with a reasonable template for the sort of thing we are talking about in Australia. It could undertake qualitative and quantitative research, along with some of the theoretical analysis that simply is not done in Australia at the moment, apart from in an ad hoc way when a committee visits some of these particular issues. So we believe that compiling all that data and getting all that research under one roof would make the government’s job easier and would certainly provide some of the research clout that we simply do not have in Australia at the moment.

In closing, I would again like to thank the Chair, and the Deputy Chair, Senator Crossin, for the collaborative way in which they undertook this work; Chiara Lawry, who was working in my office at the time, who did an enormous amount of work in preparing the materials for us and reading through the submissions; and the committee secretariat and staff. There is a really urgent call to action in this report. While we are standing here in this parliament, many hundreds of people are sitting in Australian jails who probably should not be there, and many hundreds of people are forced through tortuous processes in various courts around the country who do not necessarily need to be there. And we are not just discovering this now; it has been a matter of record since well before I got here.

I hope the government will read this report and undertake to implement the recommendations that come from right across the board from all parties and most urgently make sure that in the budget considerations this year we help some of the people who are struggling, under enormous pressure, to represent people through the court system. Ultimately, any one of us at any given time could find ourselves in these situations. But, of course, we in this chamber do not live under the conditions of people who find themselves entangled in the court system with no resources and no backup whatsoever. I very much commend this report to the Senate, and I look forward to seeing on budget night that we begin to address some of the longstanding concerns that have been raised.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I rise as shadow Attorney-General to make a few observations in relation to the report of the Senate Legal and Constitutional Affairs References Committee entitled Australia’s judicial system and the role of judges. In doing so, I commend in particular the work of Senator Barnett, who, as I know better than most, has been pursuing this matter with great tenacity and deep knowledge for a very long time—since he has been a senator—and the fruit of his pursuit of this issue is largely now embodied in this report. I have not yet had the opportunity to read the report in full but, having examined the recommendations and some of the discussion in this report. it seems to me that this will become one of the most important reports that the Legal and Constitutional Affairs References Committee has produced for a very long time—and I think Senator Barnett can take considerable credit for the outcome.

The opposition, as it finalises its policies in relation to the area of the reform of the judiciary going into the 2010 election, will look very, very carefully at the recommendations contained in this report. I just want to make some particular observations on one matter, and that is the question of judicial exchange, the relationships between the federal and state judiciaries and the question of the development of a national judiciary. I do that particularly informed by the fact that, last night in Sydney, the Chief Justice of New South Wales, Justice Spigelman, gave a very important speech in which he called for the creation of a nationally integrated judiciary. That is an issue that was addressed by the committee, and the committee was influenced in particular by an important paper given by the current Chief Justice of Australia, Chief Justice French, when he was a member of the Federal Court, at the 2004 Colloquium of the Judicial Conference of Australia. The paper was called ‘Judicial exchange: the courts’. The committee was very attracted to Justice French’s suggestion that there should be regular exchange between state and federal judicial officers, at equivalent or near to equivalent levels, so that they might hold, in effect, reciprocal temporary commissions in one another’s courts so that the objective of fostering a more unified national outlook among judges sitting on both the federal and state jurisdictions would be furthered. That would most particularly occur in the process of exchange between state supreme courts and the Federal Court.

In the paper which so influenced the committee, Chief Justice French—or Justice French, as His Honour was then—called for:

… a comprehensive system of horizontal and vertical judicial exchanges throughout Australia with a view to advancing:

1. Individual judicial performance.

2. The performance of the courts as institutions.

3. Allocation of national judicial resources to areas of local need including the need for specific expertise.

4. The attractiveness of judicial appointments in all jurisdictions.

5. Consistent Australia-wide approaches to the administration of justice while maintaining healthy institutional pluralism.

6. National collegiality between Australian judges.

I pause to say that the cause of the development of collegiality between Australian judges has itself been much advanced by the work of Chief Justice French and others through the Judicial Conference of Australia. But I want to make the point—particularly in view of what Chief Justice Spigelman said in Sydney last night—that there is a big difference between a system of judicial exchanges, which for various reasons rehearsed by Justice French in his paper in 2005 and for other reasons as well has a lot to commend it, and the development of an integrated national judiciary. They are two quite different things. A system of judicial exchanges may be a pathway to the ultimate development of an integrated national judiciary, but it is not the same thing.

The committee, I think very appropriately, expressed caution about the desirability of a national judiciary. At page 56 of the report the committee says it is ‘cautious about what can be achieved through a national judiciary’. I think the parliament should be very slow to embrace calls for an integrated national judiciary. The Australian judicial system reflects the federal nature of our polity. The fact that there are state and territory supreme courts with particular jurisdictions, which are quite separate from although often overlapping with the jurisdiction of the federal courts under chapter 3 of the Constitution, is an important feature of our system. May I say on behalf of the opposition, and in this we share the view of the committee, that I would be very slow and sorry to see the autonomy of state supreme courts and territory supreme courts eroded by the integration of those courts into a uniform national judiciary, which would inevitably be dominated by the federal judicial system, by Commonwealth courts.

So, while welcoming and being rather attracted to the idea of greater harmonisation and further fostering of judicial collegiality through intercourt exchanges and joint commissions, the opposition does not support the idea of a single, integrated, national judiciary. It is a profoundly antifederal proposal. It would be dominated by the Commonwealth and also I suspect by New South Wales, whose Supreme Court is, in terms of the throughput of cases, the busiest and most powerful court in the land, if not in terms of where it lies in the tier of appellate structures then certainly in terms of the volume of work that that court commands. So the idea that Chief Justice Spigelman suggested in his speech last night is not one that recommends itself to the federal opposition.

Having said that, in the areas of judicial exchanges, judicial complaints handling procedures, which is another matter that this report addresses, recruitment to the judiciary and the protocols which ought to govern that, which is another important area that this report addresses, there are many very useful and thoughtful recommendations in the report. It is a bipartisan report and the opposition will consider them carefully. I seek leave to continue my remarks later.

Leave granted.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

Mr Acting Deputy President, there were two reports and I have spoken to one of them, as has Senator Brandis. Senator Ludlam has spoken to the Legal and Constitutional Affairs References Committee Access to justice report and likewise I would like to take note of that report.

Scott Ryan (Victoria, Liberal Party) Share this | Link to this | Hansard source

Having come into the chair during the debate, I am informed that the motion was to take note of both reports so that you have spoken to both reports.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

With respect, Mr Acting Deputy Chairman, I think Senator Brandis’s motion was to take note of the report to which he was referring, which was Australia’s judicial system and the role of judges report. This is a separate report to which I have not yet spoken but Senator Ludlum has.

The Acting Deputy President:

I understand, Senator Barnett, that the motion that you moved was to take note of both of the reports and that was what was previously being debated.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I was speaking to the first report, the Australia’s judicial system and the role of judges report.

The Acting Deputy President:

You will have to do it by leave, Senator Barnett.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I seek leave to speak on the Senate Legal and Constitutional Affairs References Committee’s Access to justice report.

Leave granted.

As you know from Senator Ludlum’s contribution, I chaired the Access to justice report, which was commissioned in February last year and reported in December last year. It was a lengthy report and it was an honour to chair that committee with Senator Crossin as the Deputy Chair, Senator Feeney, Senator Fisher, Senator Ludlam, who has spoken in the chamber, and Senator Trood. It is a unanimous report with additional comments from the Australian Greens. I just wanted to thank those other members of the committee and also at this stage to thank the secretariat for their work, not just Peter Hallahan but also Monika Sheppard. She has done a powerful amount of work with respect to the preparation of this report and she has been very diligent throughout the committee process. As I indicated, it is a lengthy report. We had hearings in Perth, Melbourne, Sydney and Canberra and received 71 submissions. I want to thank all of those who presented to our inquiry.

Just briefly: basically, we do need a re-examination of the access to justice issues. That is what the report did. I think it pushed the envelope. It reviewed the earlier reports of March and June 1997, July 1998 and June 2004, so we went back a fair way to get a comprehensive look at the importance of access to justice in our nation. We discovered and confirmed that there are many members of our community who do not the have access to justice that they should. There are many impediments to accessing justice and potential means of improving that access to justice. We did criticise the overall levels of funding and we accepted that the legal aid system was not adequately funded and needed further reform. We have made 31 recommendations in total. I want to refer to a few of them. In particular, I want to highlight those promoting the pro bono work of the legal profession. I want to thank on record those in the legal profession involved in pro bono work. The work that is undertaken is tremendous. Many people probably are not aware of the extent of it. The report highlights this. I place on record on behalf of the committee—and, indeed, those in this chamber—our thanks for the work that they do.

We made recommendations with respect to encouraging small- and medium-sized legal firms to further participate in the provision of pro bono legal work. Likewise, we recommended the federal, state and territory governments create and fund a specific disbursement fund for pro bono matters, with eligibility criteria designed to promote the provision of pro bono legal services by the private legal profession. Senator Mary Jo Fisher, who is not in the chamber at the moment but who participated, was particularly keen to recommend that incentives be considered to encourage lawyers to practise in rural, regional and remote areas. I and other members of the committee strongly support that. We are keen for the government to respond to the report as soon as possible and we have indicated that we hope it will do so by March 2010, but hopefully it will be sooner.

With respect to Tasmania and the number of Tasmanians refused legal aid—and this is set out in the report—I made comments in July last year; my understanding is that the figures have not changed. Specifically, 200 Tasmanians—or 10 per cent of all applications for legal aid—are refused each year due to lack of funding. This figure was based on advice from Norman Raeburn, Chair of National Legal Aid, who confirmed the above evidence in answering a question from me in a Senate committee hearing in Melbourne in July last year. Mr Raeburn said that the Legal Aid Commission of Tasmania was the only one in Australia that refuses aid on the basis of a lack of money. The commission confirmed this in a letter to an applicant, where it said, ‘You passed all our tests but we do not have enough money today to help you.’ This is unsatisfactory. This is inadequate. That type of approach has been brought to the government’s attention, and they need to deal with it—and fast.

The Legal Aid Commission of Tasmania advises the federal Attorney-General of how many of these cases are refused every quarter. Interesting, Mr Raeburn indicated that other states, including Victoria, Western Australia and Queensland, perhaps were in a similar position through lack of funds. I do not know exactly what the government will do in response, but they should definitely provide a response—and quickly. I am not going to go through all of the recommendations in light of the time but I do want to put on record that the committee has received a letter from John Corker, Executive Director of the National Pro Bono Resource Centre and note a media release by that centre on 9 December 2009. I just want to place on record that we note that correspondence and its contents. It expresses the view that the centre was misquoted and a recommendation of the committee was based on that misquote. The committee notes the suggestion at the end of the letter:

It is suggested that the correct interpretation of our evidence would lead to a recommendation as follows:

2.87 The Committee recommends that state/territory governments and legal professional associations throughout Australia take such steps as are necessary to: …

• Ensure that all classes of practising certificate authorize the holder to undertake pro bono legal work, including those issued to government employees;

It concludes:

Otherwise may I congratulate you, fellow committee members and staff on an excellent report.

Yours sincerely

John Corker

Executive Director

I note that correspondence. It is taken into account. I think we are at one in terms of our objective: to support pro bono work wherever possible. In conclusion, I just wanted to also note while we are talking about access to justice and legal fees that, with respect to the Rudd Labor government, there seems to be record spending on legal fees. This is a point that has been noted recently, including by the shadow Attorney-General, Senator George Brandis. Legal fees may be worse than first thought; according to a new report, spending on lawyers on 2007-08 rose $100 million to $510 million and then to $555 million in 2008-09. That is despite Mr Rudd’s pre-election promises to cut spending by $15 million per year after the first budget. He promised to cut funding by $ 15 million and that spending would go down. But what has happened? It has actually gone up by almost three times that. Instead of $15 million less, it is $45 million more—three times more than what he had predicted. That is just another broken promise by the Rudd Labor government. Shadow Attorney-General, Senator George Brandis, pointed out:

Not only will the Rudd Government break its election promise, but its own review has found the election promise was not a sensible commitment in the first place.

That is from the Australian Financial Review of 12 January. Labor’s spending on legal fees is just another broken election promise. This is one of the concerns that I—and I know others on this side of the chamber—have with respect to the waste and mismanagement of our economy and specifically of the Attorney-General’s portfolio. That approach and behaviour should stop. In conclusion, the report is worthwhile and contains many recommendations. It is nearly 170 pages in length and it is worthy of consideration. I look forward to the government’s response. I thank the Senate.

16:36:58

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I would also like to make a few observations on the Access to Justice report. Unlike the other report under consideration—into the judicial system—which is about structures, access to justice is, in the end, about resources; it is about money. There are two observations I want to make following Senator Barnett’s contribution. First of all, anyone who works in the Australian legal system knows that the legal aid system is in the worst crisis it has ever been in right now—right now. And, as answers that were given to me in Senate estimates last year revealed, there has been a reduction in Commonwealth funding through the state and territory legal aid commissions, through which the Commonwealth supports the provision of state and territory legal aid. At the same time—and this is really the point that Senator Barnett was trying to illuminate—there has been a blow-out in the Commonwealth expenditure on the acquisition of Commonwealth legal services by the Commonwealth government and Commonwealth agencies. It seems to me that if ever you wanted an example of a grievous resource misallocation it is that the people who are most needful of access to justice are having Commonwealth support for legal aid withdrawn at the same time as the Commonwealth’s expenditure on its own procurement of legal services through the Commonwealth government and its agencies is expanding at an extravagant rate. The priorities are all wrong.

As a person who practised at the bar for 14 years and practised at various times at all levels, including early in my career in the magistrates court, I feel very strongly about the issue of access to justice. It is a fundamental right. When you have a system access to which and outcomes from which depend importantly on the capacity to be represented by those trained in the law and trained in the system, access to justice for lawyers is what access to doctors is for the health sector. It is a disgrace that the resource allocation and the priorities of the Rudd government, as this report highlights, have devalued access to justice. It is not even a social justice issue; it is a functional issue. If people cannot be represented by competent professionals, then they cannot avail themselves of justice through the courts. It is as simple as that.

Let me illustrate my concerns with an anecdote. Last year I was visited by some people—I will not say who they were, it was a private conversation, but people representing the legal aid sector—and they explained to me the crisis that has befallen access to justice in this country at the moment. I said, ‘What, in terms of the increase in the allocation of Commonwealth funding, would it take to fix the system?’ This particular gentleman said to me: ‘An extra $180 million per annum would probably fix it, but it would be a close run thing. If you invested an extra $250 million per annum in the system then we could restore a reasonable level of Commonwealth funding to facilitate access to justice.’ I paused and I looked at this particular gentleman, and I said to him, ‘Do you realise that the Commonwealth government has just announced that it is going to spend 12 times that much money on pink installation batts?’ That is why I say it is a resource allocation issue.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

Priority!

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It is a priority issue, as Senator Barnett rightly says. Every time we hear a number with a billion after it being committed by the Rudd Labor government on expenditures which are not always wise and not always economically efficient, just think that a quarter of that, a quarter of a billion dollars—what for this extravagant government seems almost like small change—is what it would take to fix legal aid in this country. So why don’t they do it? Not only do they not do it, while they commit resources extravagantly and wastefully elsewhere, they defund the state and territory legal aid commissions and they extravagantly waste money on the Commonwealth procurement of legal services themselves. It is an appalling misallocation resources for which the government must take responsibility.

Finally, I am glad that Senator Barnett raised the pro bono contribution of the private legal profession, which is seldom acknowledged. People, I think, particularly Labor politicians, tend to delight in the caricature of lawyers as greedy, mercenary individuals with no social conscience. I am sure there are such people in the legal profession, but most members of the legal profession I know, including the big commercial law firms, by the way, take the pro bono obligation very, very seriously. There are a lot of the most successful and wealthiest lawyers in this country who devote a substantial proportion of their professional time to pro bono work. It is time that that was acknowledged, and I am glad this report does so. I seek leave to continue my remarks at a later date.

Leave granted.