By Juliana Warner -
“Legal problems are life problems and can be some of the most challenging episodes people face. We are all going to face them. Funding services that enable people to resolve problems and get on with their lives are a necessity, not a luxury.”
The source of these wise words is the recently released Victorian Law Foundation paper ‘Access to just this? Eligibility for legal aid in Australia and its implications’.
This research reiterates concerns long held by the Law Council of Australia, and shared by its constituent bodies, that inequality in access to justice remains a real and present danger and must be urgently addressed.
As far back as 2014, the Productivity Commission warned that even those facing significant financial disadvantage in Australia could miss out on our legal assistance safety net when they desperately need it.
The estimated proportion of households that satisfy income and asset tests for grants of legal aid is eight per cent, yet 13 per cent of the community live below the poverty line.
As the Law Council highlighted in a 2021 research paper, even if we could ensure Australia has an adequately funded legal assistance sector, there would still be a ‘missing middle’ of people who may be ineligible for access to publicly funded legal assistance but have difficulty affording private services.
The cost of justice not being provided is steep. In a 2019 study, the World Bank and International Bar Association (IBA) concluded that if legal problems are unresolved, their costs ‘shift to other areas of government spending such as health care, housing, child protection, and incarceration’.
Unmet legal need for the ‘missing middle’ is spread across vital areas including debt resolution, workplace rights, retention of housing, elder abuse, family violence, resolving medical treatment, addressing discrimination, accessing income support, and having a fair hearing when charged with criminal offences.
A story published in the Canberra Times in July of this year spoke of survivors of domestic violence and financial abuse being trapped in relationships and unable to leave because they cannot afford legal fees associated with divorce. It highlighted a surge in demand for services for women and families in the ‘missing middle’.
Particular sectors of our community may be more likely to fall within the missing middle. These include older persons, women, single parents, LGBTQI+ people, children and young people, people with a disability, migrants, and people experiencing family violence.
A significant proportion of Australians falling within the missing middle are located in rural, regional and remote (RRR) areas, where access to a lawyer can be particularly challenging.
In 2023, the Law Council released a position paper outlining a key change it believes could make a significant difference to access to justice in RRR areas.
Since then, representatives of the Law Council have been meeting with Members of Parliament across all parties to advocate for a Higher Education Loan Program (HELP) debt reduction and indexation relief initiative to incentivise more legal professionals to remain in regional communities.
Addressing unmet legal need in the missing middle and rebuilding regional legal communities will both be explored by panels at the upcoming National Access to Justice and Pro Bono Conference, to be held in Melbourne from 29-31 October.
This conference brings together leading experts to discuss how we can best deliver support to our society’s most vulnerable people.
Juliana Warner is President of the Law Council of Australia.
