‘By 2030, we will be looking at a failed Legal Aid system.’ Legal aid private practitioner census paints a concerning picture of the future

National Legal Aid released its Private Practitioners Census report, a first in Australia and globally only the second since the U.K. released their report in 2021. 

The survey of more than 1000 private practitioners aims to provide a detailed profile of the solicitors who take on the majority of legal aid cases – over 70 per cent.  

According to the report, private practitioners value legal aid work, but a chronic lack of funding for legal aid services jeopardises access to justice, particularly in rural and remote areas. 

“The legal aid system is haemorrhaging private practitioners,” said the Access to Justice Committee Chair, Law Council of Australia, Mark Woods. “If the Health Minister announced today that 30 per cent of doctors were going to leave the Medicare system, there would be an outrage.” 

According to the report, 85 per cent of respondents state the amount of unpaid work is a deterrent, and 77 per cent noted the lack of time and resources to deliver a good quality of work. Grants often don’t cover costs, including when travel is necessary, and there is a lack of support from Legal Aid Commissions to help resolve queries. The average hourly rate for legal aid hasn’t changed in 10 years, and it’s now at about three times less than what solicitors can earn in private practice. 

More than half of the private practitioners feel undervalued by Legal Aid Commissions, and as a result, 20 per cent are unsure if they will continue to do Legal Aid work in the next year, while 11 per cent admitted to considering stopping. 

“Legal aid work is challenging, rewarding and worthwhile, but there are usually far more work hours required than allocated funding permits, so the choice is either do a substandard job or work for free,” claims a Barrister from New South Wales, one of the anonymous respondents. 

“This means that we have at most five years to address the current and ongoing loss of private practitioners,” says Director of Legal Aid ACT, Dr John Boersig.  

“And if we don’t address this by 2030, we will be looking at a failed legal aid system where there simply aren’t enough lawyers available to deliver these services.” 

The situation is more alarming in rural and regional areas. Legal Aid NSW relies entirely on private practitioners to deliver service in some rural areas. 

“Private lawyers doing legal aid work deliver a crucial public service and can make a profound difference to the lives of the nation’s most disadvantaged,” said National Legal Aid Executive Director Katherine McKernan. “Without access to a lawyer, we risk worsening postcode injustice in regional areas where legal aid offices may not be nearby,” 

President of the Law Society Jennifer Ball welcomed the ground-breaking report’s publication while highlighting the concerns raised. 

“Many practitioners who undertake this work do so at a loss, and when the funding is insufficient, they often perform work for free”, Ball said.  

“Indeed, the survey found that almost 90 per cent of NSW respondents were concerned about having to perform unremunerated work, and 62 per cent were worried about the continuing financial viability of their practice.” 

The federal government’s National Access to Justice partnership agreement, set to commence on 1 July, committed late last year to increasing legal aid investment to $3.9 billion dollars over the next five years. This increase will be essential to maintaining existing programs and increasing funding for legal assistance partners.  

“Unfortunately, the envelope did not stretch far enough to allow for expansion of our services”, continued Boersig. “Nor does it provide funding to increase private practitioner fees.” 

The Commonwealth Attorney General, Mark Dreyfus KC, did not attend the report’s launch but sent a pre-recorded message addressing the government’s position. 

“Through the delivery of essential frontline services, legal assistance providers support a fairer, more equal and efficient justice system”, Dreyfus said. “Legal Aid is essential to ensuring the most vulnerable members of our community have greater equity in our justice system.” 

 In his speech, Dreyfus recognised the work of private practitioners in delivering Legal Aid and singled out rural and remote areas as a national priority group for legal assistance services. However, he did not announce further funding to address the concerns raised by the report. 

 In its conclusion, the report calls for direct financial support for the work of private practitioners and better client support. Respondents noticed the difficulties in supporting clients with reduced access to health and community services. 

“The survey indicates that in five years, the legal aid sector could collapse”, McKernan concludes. “Meaning we would be unable to find lawyers to represent disadvantaged clients. That includes victim-survivors of family and domestic violence, vulnerable children, and First Nations people”. 

“Without that crucial assistance, the entire justice system could grind to a halt.” 

Read the full report here.