Vulnerable families face legal aid cliff edge after budget leaves justice behind

The Law Council of Australia President Tania Wolff said the budget, which promised to look after those doing it tough, had left Australians who need legal help to escape family violence, protect their children, or defend their rights against government decisions without recourse.

“Every time a budget passes without adequate legal aid funding, Australians are told their access to justice can wait. It cannot,” Wolff said.

The consequences are imminent. From 1 July, Legal Aid NSW, who serve Australia’s most populous state, will be forced to turn away anyone seeking help with parenting, property or enforcement proceedings, unless they are a victim of domestic and family violence or an Aboriginal person.

“This is not a warning about the future. It is happening in weeks,” Wolff said.

Law Society of NSW President Ronan MacSweeney had urged the Albanese government to provide an urgent funding uplift ahead of the budget, warning that without it, the commission would be forced to severely limit legal representation in family law matters.

“Legal aid commissions form an indispensable part of the nation’s justice system, ensuring that the rule of law can extend to all Australians no matter their level of income, location or background,” MacSweeney said.

Kymberlei Goodacre, Principal Solicitor of Coffs Law Co and President of Clarence River & Coffs Harbour Law Society, knows that reality intimately. On the day she spoke to LSJ Online (a day out from the budget), she had to turn away five clients, which she says is routine.

“It’s not unusual for me to get five to seven calls every day trying to find a practitioner that will do legal aid work,” she said. “And I do legal aid work, but at the moment I’m at full capacity.”

This financial reality forced Goodacre to dramatically reshape her practice. Eighteen months ago, she was running a 70/30 split: 70 per cent legal aid clients, 30 per cent private clients. The numbers had to be flipped just to stay afloat.

Goodacre says she finds it very hard not to provide legal aid, but to be financially viable, solicitors must carry a portion of private matters, as firms run at a loss on legal aid matters.

“If you actually cost it out, most of my matters, to be able to discharge my duty as a solicitor appropriately, I’m actually paying the government to provide this service,” she says.

“It is woefully underfunded for the amount of work that is required.”

Who falls through the cracks?

Goodacre says the consequences of Tuesday night’s budget will fall hardest on people already living below the poverty line.

“That includes people that can’t work because they haven’t got the skills to maintain even an entry level job. People with disabilities. People where English is not their first language. People who are remote. People on Centrelink just to complement a very low wage. That’s the people that are left behind.”

Wolff echoed the concern. “This will impact vulnerable older people, people with disability and people who do not speak English,” she said.

MacSweeney acknowledged Aboriginal people and domestic violence victims urgently need legal support, but other vulnerable Australians could not simply be abandoned. “There are also other vulnerable and low-income people needing help in family law, and they will be left to fend for themselves,” he said.

The budget also overlooked Independent Children’s Lawyers, who exist to ensure children’s voices are heard in the family law system, despite what Wolff described as their future viability being “at a crisis point.”

The problem is acute in regional areas, Goodacre says, where the safety net of community legal centres and pro bono services is already thin and harder to access, exacerbated by infrastructure gaps compared to the city.

“How do you get in contact with them [Legal Aid services]? Have you got a phone with credit so you can search the internet? And if you don’t know what you’re searching for because you don’t know it exists—how do you find it?”

Courts ‘on their knees’

The Law Council, the Law Society, and Goodacre warn that the damage will extend well beyond individual clients, placing an already stretched Federal Circuit and Family Court of Australia under even greater pressure.

Goodacre paints a stark picture of what unrepresented parties mean for proceedings. Without a lawyer to explain how legislation applies to their circumstances, litigants stall cases, make poor decisions, and, in family violence matters, can be dangerously misidentified.

“Often it’s very difficult for the court system, the police [to ask] who is the victim here? Quite often we see perpetrators play out that they’re the victim, and initially they get the protection,” she said.

“A lot of people who are victim survivors of family violence actually don’t know at the very beginning that that’s what they’ve been going through. Often it takes sitting with your client, hearing what’s been going on, and highlighting to them – this very much sounds like coercive control. They’ve been so caught in the thick of it that they themselves couldn’t see what was going on.”

MacSweeney echoed the concern. “Continued lack of adequate resourcing for Legal Aid NSW for family law matters will adversely affect the efficiency and effectiveness of the Federal Circuit and Family Court of Australia and vulnerable parties appearing before it,” he said.

Goodacre doubts most politicians grasp the full picture: not just what legal aid does, but what it saves.

“I don’t think politicians know the breadth of services that legal aid offers, what it takes to be eligible for it, because it’s a very small percentage as it is based on the means test, and they’re certainly not aware, to my knowledge, of how much funding legal aid saves downstream in the justice system.”

Without representation, she says, litigants simply cannot move through the court’s case management pathway as the legislation intends.

“We want all these efficiencies in court, but unless you have assistance to help navigate that, that case management pathway, it’s not going to flow.”

“The more holdups there are, the longer it takes, the more it costs.”

Goodacre refers to a 2023 PwC report, commissioned by National Legal Aid, which found that every dollar of Commonwealth investment in legal aid services delivers $2.25 in avoided costs to the justice system, individuals and government.

While she acknowledges the report is getting “quite long in the tooth”, she believes that if this calculation were better understood in Canberra, the funding conversation would look very different.

“The courts are going to be on their knees if people don’t have legal representation … people will be in there demanding things the court doesn’t have power to give, and people will be saying: what’s happened to the rule of law in Australia? No one’s getting justice here.”

A funding crisis years in the making

The budget did include some justice-related measures: $74.2 million over four years for the Federal Court and Federal Circuit and Family Court in relation to the protection visa system; $14.7 million over two years to extend supplementary funding for the NDIS Appeals program; $11.7 million to legal aid commissions to continue the Family Violence and Cross Examination of Parties Scheme; and $3.9 million to establish a pre-filing duty lawyer pilot.

But Wolff said these fell far short of what is needed. “These measures do not address the structural funding crisis facing legal assistance services across Australia,” she said.

The Law Society urged the Commonwealth to rethink last year’s National Access to Justice Partnership, which it says fell well short of the funding level recommended by Dr Warren Mundy in his independent review of the legal assistance sector.

Goodacre agreed that the Mundy review laid bare the scale of what is needed. “Even just to bring it to a level keeping up with CPI, it was like $80 million. Access to justice in Australia is really only available to the wealthy that can afford it. Everybody else is just fed to the wolves.”

Asked before the budget whether lawyers would still be willing to do legal aid work in five years, Goodacre’s answer was blunt.

“No. The data is there for the government to see. The National Legal Aid private practitioners census found around 30 per cent were going to leave fairly imminently. It’s just not sustainable.”

Wolff was equally direct. “The profession has been striving to assist for many years, but it cannot run on empty. The legal aid burden has for too long sat on the shoulders of local practitioners dedicated to helping their community, who are being paid a pittance for their efforts. This is not sustainable and it is not acceptable.”

MacSweeney acknowledged the pressures facing the government globally but said funding access to justice had to be treated as core business. “Providing Legal Aid NSW and other legal assistance agencies with adequate resources to ensure fair and just outcomes for the most vulnerable people in NSW strengthens the rule of law,” he said.

A personal stake

For Goodacre, the stakes are both personal and professional. As a twice-divorced single mother who has practised family law for nearly two decades, she sees her clients’ struggles with clear eyes.

“The children that can get through parental separation and come out with a parenting arrangement that sees their parents working functionally together into the future, you’re going to have better outcomes for children, more functional adults in the future. Isn’t that what we all want?”

She says the government’s inaction is difficult to comprehend.

“When 50 per cent of all families are separating, the government has an obligation to assist them. I don’t understand why cutting legal aid, which is going to affect a very vulnerable cohort of Australian families, how that is serving Australians?”

Wolff put it plainly. “People being able to get legal help when they need it is not a privilege. This is essential public infrastructure that should be available to every person in the same way as health and education. The rule of law means nothing if we cannot keep a child safe in the justice system. It is long past time the government funded these services as the essential infrastructure they are.”