NSW Legal aid and discrimination

[Confuzzled]

I'm sorry if I'm saying any of this the wrong way.

Legal Aid has a number of policies that are intended to put pressure on their clients to settle quickly in a family law matter; the financial test and required contributions are unreasonably high, there has to be mediation even in situations where there's been documented abuse, clients have to accept offers from the other spouse that legal aid lawyers decide are 'reasonable' without any outside scrutiny or review or their grants are revoked, and there's a funding cap on each matter.

There have been Senate inquiries into Legal Aid funding that came up with reports describing how family law funding is unfair to clients, especially women. But the funding rules haven't changed.

Indirect discrimination is where a policy that appears neutral on the surface disadvantages a protected group. In the case of legal aid family law matters, most legal aid clients are women. The Senate has at least sort of said that the policies are unfair to clients (I don't want to overstate the legal weight to these reports). Indirect discrimination against women is supposed to be against the law in Australia both because of the DDA and the human rights treaties Australia has signed. Also because of the human rights treaties Australia has signed, the government is supposed to be responsible for taking special care in situations of women being victims of family violence or where women are being pushed into poverty.

Is there any legal standing to challenge these funding policies as discriminatory or as human rights violations?


PS - Apologies to any men out there who also use legal aid in a divorce. This isn't meant to minimize your frustration.

 

[Rob Legat - SBPL]

There are always competing interests when it comes to public policy, and while you have raised a fair summary of your arguments I fear that: (a) they have all been raised before, repeatedly, and (b) they have as yet proved insufficient to overcome the predominant counter-argument: scarcity of resources.

Funding for Legal Aid is finite, and I think most reasonable people would argue is insufficient. Until more money is available, they have to do what they can with what they have. That means spreading it thinly across as many matters as they can in the most worthwhile way. If that means cutting off some avenues to ensure funding can go to a larger number of recipients - they’ll do it. From a public policy point of view it is better to help a larger group for a partial success, than a smaller group for a total success.

In answer to your question, that’s pretty much the response you’ll get if you try to challenge. Public policies go through an almost ironclad vetting process that tends to make them unassailable. You can lobby to try to change the policy (but see the above big issue), but directly challenging them is not feasible.

 

[Confuzzled]

So, just to be clear in what you're saying...government agencies can break federal laws and/or ignore treaties signed by the federal government if their policies are signed off on by the government? The government can sort of make it legal to break the law?

Is there an alternate avenue to be compensated - maybe something like an act of grace payment or CDDA payment?

 

[Atticus]

@Confuzzled .... In addition to budget restraints as mentioned by Rob, there is also a merits test for legal aid...... If the stats are available, It may well be that many fail at this point.... I wouldn't want my tax dollars funding an action for a parent who is unreasonably withholding kids from the other parent or has scant evidence for doing so for example..

 

[Rob Legat - SBPL]

Can they break federal laws and international treaties which Australia has signed to? No. Do they actually do that? Not in the government’s opinion. And for that, it is their opinion that counts unless and until a court of competent jurisdiction rules otherwise. That does happen, but it’s not an easy thing.

Are there alternate avenues for compensation? Yes, most probably. The government does have ‘if nothing else fits’ compensation pools, but the odds of being successful in that For something like this are almost exactly nil. They’re generally designed for where there is no mechanism to seek redress under. Here it‘s a matter of not fitting the policy constraints in order to get a benefit. There’s no ‘actual loss‘ suffered in the sense of ‘actual detriment caused’, as opposed to ‘wasn‘t given something I believe I should have received’.