Source : BUSINESS NEWS
A shortage of top-level lawyers and diminished funding for legal aid have changed the state’s legal profession and the access to it.
A core principle to the rule of law, is justice must be accessible to all.
Despite this, Community Legal Centres Australia found centres across the country had to turn away an average of 1,000 people per day in 2022-23.
The CLCA report, titled A sector in crisis, surveyed 17 out of the 25 community legal centres in WA.
Law Society of WA chief executive Kate Wellington said there was a huge amount of unmet legal need in the community, particularly in family law and estate planning.
“We find ourselves in a time of a brewing storm towards a crisis, an access to justice crisis, where there has been insufficient investment made in funding for Legal Aid and community legal centres,” she told Business News.
“In the most recent federal budget, we did see an increase in funding for the program that will succeed what they call the NLAP [National Legal Assistance Partnership], namely the National Access to Justice Partnership … but with only a $200 million investment for bodies like Legal Aid and community legal centres.
“We’ve got a shortfall to the tune of hundreds of millions of dollars for people to be able to access legal advice services.”
The NLAP is a $2.4 billion agreement between the Commonwealth and the state and territory governments to fund legal assistance for vulnerable people.
An Independent Review of the NLAP 2020-25, published in May 2024, recommended a further $459 million funding assistance for 2025-26.
It’s more than double what the report recommended in 2014, which was a $200 million increase in assistance funding for civil matters, to be shared by the Commonwealth, states and territories.
“The difference in the two estimates broadly reflects more qualifying persons due to population growth, a wider range of matters, and increasing costs of provision due to wage and general price inflation and to increased complexity,” independent reviewer Warren Mundy said in the report.
The NLAP is set to expire on June 30, with the report pushing 39 recommendations to be implemented for future funding arrangements.
Ms Wellington said the cost-of-living crisis had impacted access to justice, with a group of people referred as the “missing middle” lacking the disposable income to pay market rates for help with legal needs.
“We find ourselves in a time where there are large groups in the community who turn to different agencies that in the past might have been able to help them,” she said.
“And now, given the funding shortages and the increasing needs and increasing cost of living, more and more people are turned away and find themselves at the end of that process with no legal assistance at all.”
Another big contributor in the obstruction to legal service is the lack of increase in fees paid by Legal Aid to private practitioners, according to Ms Wellington.
Law Council of Australia claimed about 72 per cent of Legal Aid work was assigned to private practitioners, in a statement in March.
“But as overheads have gone up, as the cost of hiring junior lawyers to work in your firm has gone up, the amount per case that is available to be paid to these private practice lawyers hasn’t really changed over time,” Ms Wellington said.
“That means that fewer and fewer firms find it financially viable to do this work at all, and some firms will say that it’s so challenging and bureaucratic to go through the process of claiming back Legal Aid fees that they tend to do those cases on a pro bono basis as a small part of their practice and then work in other areas.”
Shortage
A shortage in the qualified legal professionals has been discussed among the profession, Ms Wellington told Business News.
She said the shortage of mid-level and experienced lawyers in WA could be attributed to different factors.
“There’s a lot of global mobility in law, and in recent times, we’ve seen, as all the states in Australia have seen, global firms and competitors offering incredibly high rates of pay to relatively junior and mid-level lawyers that are very difficult to compete with,” she said.
“The areas that, in WA in particular, we’re seeing more and more pressure on, are those areas where lawyers experience vicarious trauma, particularly family law, criminal matters – especially very serious cases and sex abuse cases, and cases involving independent children’s lawyers.
“We’re seeing a trend of, once they get to that mid-level, lawyers dropping out of the profession, whether that’s to pivot to do something else, or to take a career break from exhaustion and years of having to process the onboarding of the trauma of clients and others in the system.”
The state government has appointed more senior silks to the judiciary bench in the past couple of years, in a bid to counter the backlog of work in the state courts.
Then-attorney general John Quigley described the courts’ caseloads as “significant”, in justifying the appointments to the judiciary.
“On one hand, it’s a fantastic initiative from the government. We’ve seen a lot more appointments, from magistrates, tribunal members, judges, all the way up through the higher courts,” Ms Wellington said.
“The consequence, however, is that there are fewer senior barristers, fewer silks, floating around in Western Australia, because so many have been appointed to the bench in short succession.
Kenneth Martin says solicitors have more choice with east coast barristers. Photo: Michael O’Brien
“It’s certainly not that the quality is not here. It’s that a lot of that quality has ended up at the bench and those that are still at the bar are massively oversubscribed.”
Piddington Society chair Kenneth Martin KC echoed Ms Wellington’s sentiments.
“It’s thin at the top in terms of commercial senior counsel, and that’s for a number of reasons,” he told Business News.
“If you look at who’s gone to the bench in the last four or five years, a big number of the senior silks have effectively left the bar and taken that appointment.
“You really can’t pump through enough seniors fast enough to do that multi-million-dollar high level stuff.
“There’s a handful of really good people, but in terms of a really big case with huge demands, particularly the national firms, who are usually the instructors on record, probably find more choice and availability on the eastern seaboard.”
East coast silks
The observations come as defamation barrister Sue Chrysanthou spent a week in Perth earlier this year, to represent a former City of Nedlands councillor in a trial over a Dalkeith property.
Based in Sydney, Ms Chrysanthou has acted in several high-profile cases, including as counsel for Lisa Wilkinson in Bruce Lehrmann’s defamation trial against Network 10.
Gina Rinehart’s Hancock Prospecting engaged one of the country’s top silks, Noel Hutley, to represent the company in the lengthy trial over billions of dollars’ worth of iron ore royalties claimed by Wright Prospecting.
Chris Ellison also flew in Mr Hutley from New South Wales to WA, to represent the Mineral Resources boss in the legal proceedings over allegations raised by former MinRes procurement manager Steven Pigozzo.
Clive Palmer engaged Queensland-based barrister Peter Dunning to act as his and his company Mineralogy’s counsel in a Supreme Court of WA matter, against CITIC.
“One area where we do see east coast barristers coming in is in complex criminal matters in particular,” Ms Wellington said.
“There is a real shortage at the moment, and it’s something that lots of different stakeholders around the legal community are starting to come together to talk about; a real shortage in experienced and senior criminal barristers to work on complex matters.
“Supreme Court criminal trials are taking around 40 per cent longer than the target amount of time to be brought on, and often that is because of a lack of availability of defence counsel.
“Whether those defence counsel are being paid for privately or are being paid for by Legal Aid, there simply aren’t enough bodies there to be able to do the work to bring the cases on fast enough.”
Barrister Sue Chrysanthou in Perth for a Supreme Court trial, flanked by Tonya McCusker (left) and Malcolm McCusker (right). Photo: Tom Zaunmayr
Mr Martin said one area of focus with an even more concentrated pool was defamation.
“Defamation is a very specialist field, and even when I was practising at the bar, there was only a handful of us who would do it,” he said.
“If the stakes are high enough – and you’ve got to remember, Western Australia has a concentration of multi-billionaires generally produced by mineral wealth – often the instructions to their solicitor will be, ‘I don’t care what it costs, get me the best’.
“In the east, you’ve got about maybe 50 people to choose from. Over here, you might have three or four, and what if they’re on leave or they’re in another case?”
As an example, Mr Martin referenced the litigation between Mr Palmer’s Mineralogy and CITIC over the Sino Iron project, a case which he presided over as a Supreme Court justice.
“Virtually all the counsel in that, both for Clive Palmer’s Mineralogy and for CITIC, are all [from the] eastern seaboard, so it’s pretty much fly-in, fly-out teams,” he told Business News.
“Basically, you take out that person for a year, maybe more, in terms of the commitment, and that’s quite hard for a practitioner over here, because they might have number of briefs in a number of matters, and they may not want to be totally committed to the one thing for two or three years.”
Technology has enabled lawyers to present remotely and courts to decide more effectively.
Mr Martin said this had also contributed to the diminishing workforce.
“The speed of decision making is just unbelievable now, and lawyers have had to adapt to that,” he said.
“Western Australians are great travellers, as we should be being the world’s most isolated city, but for us, it’s nothing to jump [on a plane].
“There is that cross fertilisation as well but it’s a shrinking environment, and what you’ve seen is, even internationally, it’s a shrinking environment.
“We have five law schools over a generation pumping out that many people, plus we’re more of a national practice now, people apply from outside the state to come and work here.
“We’re always welcoming of that in Western Australia, in terms of having people travel and vice versa … but I was very surprised, talking to some of the employers who are looking for [people] to employ in commercial litigation, and they say you can’t get enough grads.”
