Legal aid is a lifeline for vulnerable Australians, but consistent underfunding puts the system at risk

It’s central to any democracy that citizens receive fair treatment under the law. An important part of this is access to legal advice and representation.

But lawyers are expensive. Many people who engage with the justice system can’t afford them.

This is where legal aid comes in. Legal aid is a government-funded service available to some people unable to afford legal assistance. It is tightly targeted and many people are turned away.

Those approved can access professional advice and representation. Many clients are women and children escaping family violence, and Aboriginal and Torres Strait Islander people, who remain vastly overrepresented in the criminal justice system.

But the first ever national census of legal aid private practitioners reveals widespread underfunding, overwhelming workloads and high financial costs borne by the lawyers providing help.

How does legal aid work?

Vulnerable Australians who need essential services often access them from private providers in mixed markets. This is the case for childcare, aged care and the National Disability Insurance Scheme (NDIS).

It’s also true of legal aid, in which private lawyers play major roles.

Legal Aid Commissions deliver legal aid through a mix of directly employed, in-house practitioners and approved private providers. The mix is heavily weighted toward private providers, although it fluctuates over time and across jurisdictions.

According to National Legal Aid, in 2022–23, 72% of successful legal aid applications were assigned to private practitioners.

To resource this arrangement, private practitioners are funded by grants of aid allocated to approved clients, with amounts regulated through a fixed scale of fees. Legal Aid Commissions in each state and territory usually release grant funds to practitioners in stages, initially to cover advice, investigation and negotiation, with funding extended to cover more work, such as going to trial, if cases progress.

Private practitioners are expected to assist legal aid clients at the same standard of quality they would provide to other, fee-paying clients.

But quality legal representation, especially for highly vulnerable people, is complex and time-consuming.

Our research shows private practitioners feel frustrated that government funding does not cover all activities they need to perform and falls short of meeting community need.

Our research

We surveyed private practitioners who had delivered legal aid in the past two years, or who were listed on legal aid panels or preferred supplier lists.

Among the 1,010 who participated, most were self-employed or working in very small practices. A quarter had delivered legal aid for more than 20 years.

Commitment to legal aid is high, reflected in statements such as “everyone deserves good-quality representation”, and

there is an obligation on professionals to assist in providing access to justice.

Overwhelmingly, private practitioners find legal aid satisfying and meaningful. They also value the way it can build expertise for practitioners early in their legal career.

But despite being enjoyable and enriching work, private practitioners say legal aid is becoming more difficult to deliver.

Bearing the brunt of the cost

Legal aid work can be stressful for practitioners, but their greatest challenge by far is funding.

While there is no illusion that legal aid will be lucrative, private practitioners are frustrated with paltry grants that require significant administration and which undervalue their work.

They feel the funding they receive does not recognise the time required in legal aid cases, nor the growing complexity of cases. As legal aid clients increasingly present with unmet health, social and economic needs, cases are more complex, lengthy and costly.

Community need for legal assistance is high. For years, formal reviews have found the sector is chronically underfunded, both in Australia and overseas.

Announcements of additional funding and better indexation have been welcomed, but aren’t enough to fix the shortfall.

In the census, private practitioners repeatedly told us the funding available does not cover all activities required in legal aid cases or expected by courts. As one practitioner explained:

legal aid matters effectively become pro bono matters near weeks into an initial grant, despite being potentially years-long.

For 85% of private practitioners, “having to perform unremunerated work” is a source of difficulty. More than three-quarters said “trying to do quality work with limited time and resources” makes legal aid cases difficult.

Many private practitioners travel long distances for their legal aid work and feel frustrated when costs are not covered. They also find administration is slow and cumbersome, and feel that Legal Aid Commissions are too understaffed to respond quickly to inquiries.

Although 70% intend to continue to deliver at least some legal aid in the next year, many private practitioners feel undervalued. A third want to reduce their legal aid caseload and one in nine plan to abandon this work altogether.

To continue to deliver legal aid, private practitioners echo scholarly evidence in calling for better grants, straightforward administration and responsive communication.

Some question why legal aid, as a public good, has come to rest so heavily on the commitment of private practitioners and suggest that in-house staff and the community legal sector play bigger roles.

Ultimately, some private practitioners will find ways to integrate legal aid into their business, or simply wear the cost. But for most, financial costs and risks are too high. Essential services cannot be delivered based on practitioners’ goodwill.