Don Fleming

The first part of this paper records those events and developments. It outlines the historical background, the impact of the Coalition’s election promises and the content and implementation of its new legal aid agendas. There are several important reasons why the paper begins with this descriptive chronology. Typically developments in Australian legal aid slide rapidly into history, with only segments of the story retained amongst the interest groups. This as been the pattern since 1973, and it is daily reinforced with greater and greater emphasis on funding and immediate service delivery outcomes in legal aid policy and politics. Furthermore, legal aid continues to be very much seen as lawyers’ business, or the business of the courts and legal aid providers. We need to record policy development, and make its benchmarks more accessible, if we are to encourage wider participation from scholars in public administration, social theory and policy and contemporary political economy. Until this participation occurs, we will not achieve the contextualisation that is necessary to fully understand the role and significance of legal aid, and its future development in the welfare state.

The second part of the paper analyses two aspects of the new Commonwealth legal aid policies. First, it explains the organisational and operational effects of the new policies, arguing that they signalled the end of the third phase of the national scheme and thereby the Australian version of the Western post-war experience of legal aid. However, the paper cautions that these effects cannot fairly be solely attributed to the Howard government, and moreover that the new policies also had positive outcomes. Secondly, this part of the paper briefly discusses the wider significance of the Howard government’s actions. It argues that the new Commonwealth legal aid policies had significant implications for the quality of legal citizenship, the public policy of access to law and the social citizenship of the poor in the late 20^th century Australian welfare state.

The post-war scheme had its origins in the reversal of Commonwealth policy towards the national provision of legal aid in early 1973. The next eighteen months saw its first or interim phase, while the Labor government awaited the reports of two inquiries into legal aid. The second phase of the national scheme began in early 1975, and it was brief and controversial. The government introduced legislation to establish a Commonwealth legal aid office to administer a centrally focused national scheme. The private legal profession and the conservative Opposition vigorously resisted both the legislation, and its proposed arrangements for legal aid. However, neither was opposed in principle to a national scheme, nor to appropriate Commonwealth participation in legal aid. Indeed, in the second reading debate on the Legal Aid Bill 1975 (Cth), Mr Howard, as a Liberal Party spokesperson, affirmed conservative support, saying that "we have made that clear before … [and we] make it clear again and nothing that we will [say] can be honestly represented as being other than total support for the provision of adequate legal services". Similarly, the private profession supported legal aid, having first seriously lobbied the federal government in 1964 to establish a Commonwealth financed national law society scheme. Nevertheless, the second phase of the national legal aid scheme died an unnatural death in late 1975, with vice-regal dismissal of the Labor government, and the election of a new conservative federal administration.

Its third phase began in March 1976, with the newly elected government initiating an ‘in principle’ Commonwealth-State agreement for a jointly administered scheme. The joint scheme was introduced by a series of inter-governmental agreements, backed by Commonwealth and State funding and administrative infrastructure. By 1980, these mechanisms existed in all States, except for New South Wales and Tasmania. The third phase, complemented by the operation of the community legal centres, Aboriginal legal services and pro bono activities of the legal profession, was the core of the national legal aid system until the changes discussed below. . It is not the purpose of this paper to describe the major developments in the third phase, and in any event its story is told elsewhere. It is however necessary to note two significant associated developments. The first was the presence of on-going problems in adequate popular access to courts and lawyers throughout the 1980s and early 1990s, notwithstanding the presence of the national scheme. The second development occurred in 1995, when the federal government effectively abandoned legal aid, and the national scheme, as the central planks in Commonwealth access to law policy. This was the product of the instructions the Keating government gave to the Access to Justice Advisory Committee (AJAC) in 1993, and its subsequent decision to adopt many of the reforms AJAC recommended. Thereafter, ‘access to justice’, injected with a strong dose of national competition policy, became the new and dominant force shaping law and legal citizenship in an increasingly ‘market-oriented’ welfare state.

This background note concludes with the announcement in early 1996 of the Law and Justice policy of the Coalition parties in readiness for the elections. This policy affirmed the place of the national legal aid scheme as an "essential element in providing access to justice" indicating that, if the Coalition parties formed a new national government, they would "maintain current funding levels of … funding as well as funding … community legal centres". The Law and Justice policy also indicated a Coalition government would "look for ways to reform legal aid and reduce costs", and establish a national legal access forum.

Consequently, when the Howard government won office on 2 March the legal aid interest groups "felt reassured" about future support for the national scheme. However, ten days later the government announced it was "taking measures to reduce the underlying budget deficit by $4 billion in 1996-97 and a further $4 billion in 1997-98". This goal was too be achieved by reducing overall Commonwealth outlays, and selling, in whole or part, its marketable assets. The Howard government justified these measures by reference to its ‘discovery’ of an A$10bn deficit, allegedly the product of "[f]inancial dishonesty" in the previous administration. Implementing these policies of radical deficit reduction was to have significant implications for the national legal aid scheme.

In mid-1996, the Attorney-General wrote to other governments terminating the existing Commonwealth-State legal aid agreements as from 30 June 1997. He also indicated interest in renegotiating Commonwealth-State funding arrangements for the future operations of the national scheme. This question was subsequently discussed in early July at a meeting of the Standing Committee of Attorneys-General, at which it was agreed "that government officers would meet on 26 August 1996 to discuss the principles for the renegotiation process and how negotiations should proceed". However, this meeting was preceded by the release of the 1996/97 Federal Budget, in response to which the Attorney-General announced that Commonwealth outlays on legal aid would be cut by $33.16m in the 1997/98 financial year. At the same time, he explained the reasoning behind the government’s decision to re-negotiate Commonwealth participation in the national scheme:

[it] believes it has a responsibility to provide legal aid for matters arising under [Commonwealth law] and that the State and Territory Governments have a responsibility for matters arising under their laws. Put simply, if a Government passes a law, it must be prepared to meet the legal aid costs arising in relation to that law. From 1997-98 the Commonwealth will no longer provide funds to support the growing demand for legal aid for matters arising under State or Territory laws.

The solution, as the Howard government now saw it, was to re-negotiate the balance of governmental responsibility in the national scheme "to provide for improved targeting in areas of Commonwealth law". Henceforth, its allocation would only be used to provide legal aid in "areas such as family law (including child support matters), eligibility for benefits under Commonwealth law, defending Commonwealth crime charges, and bona-fide consumer matters under the Trade Practices Act". The Attorney-General noted that he did not believe this change would adversely affect citizens in genuine need of access to legal assistance. Instead, the proposed new inter-governmental arrangements would "simply withdraw an unjustified subsidy to State and Territory governments who have been using Commonwealth funds to provide aid in State and Territory matters [and that if] States and Territories now meet their proper responsibilities, the total funding available to legal aid will remain".

Not surprisingly, the other actors in the national scheme did not share his views. The other Australian governments interpreted the new Commonwealth policies as breaching the Coalition’s election "commitment to preserve legal aid funding at the current levels". Since 1973, continuing significant levels of Commonwealth expenditure had allowed those governments to maintain the minimalist State response to legal aid funding. The fact that the scale and scope of Commonwealth participation was to be so suddenly restricted prompted even conservative State Attorneys’-General to express "disbelief that this could actually be happening …[it] seems to be extraordinary". Amongst the interest groups the reaction to the Howard government’s proposals was one of heartfelt outrage. Since the late 1970s, the State and Territory legal aid commissions, the organised profession and lawyers had co-operated with the Commonwealth in operationalising the national scheme. Together with the community legal centres, these groups had succeeded in creating a sustainable, mixed delivery legal aid system, albeit flawed and limited in scope. Success had been achieved in consistently difficult financial circumstances, in which moreover the national scheme and its managers were regularly cast as scapegoats for management issues in the legal system, resolution of which was beyond their control or authority. In this context, it was bad enough for the legal aid interest groups that the Howard government had cut Commonwealth funding, thereby qualifying, if not breaching, its election promise. However, their reaction to its new directions for legal aid was compounded by two other factors. The first was that reducing Commonwealth spending flew in the face of evidence suggesting the national scheme was in a parlous, if not desperate, condition. A report commissioned by National Legal Aid (NLA) – the organisation of the State and Territory commission Directors –and published in July 1996 had found that:

[t]he demand for legal aid services patently has been increasing over the last five years, particularly in relation to criminal matters. Both applications and approvals have risen substantially, compared to the reported crime increases in the Australian population generally. The development of new areas of law has required an input of resources to clients. More matters are being dealt with per application. The crime rates are rising in certain areas. There is a substantial increase in the need for separate representation of children who are the subject of litigation in family disputes. There has been a steady increase in the number of clients from Aboriginal backgrounds who are grantee assistance by the commissions … [and] the [r]unning costs of commissions have increased [exacerbated by] increased government reporting requirements [and changes] to Commission structures brought on by Government reordering …

The report concluded that the national scheme was "reaching a crisis point through demand for services in the community that is unmet by the … Commissions by necessity". The second compounding factor mentioned above was that the timing and style of the Howard government’s actions had inflamed the concerns of the legal aid interest groups. Some believed that the Attorney-General and his officers, confronted with the need to deliver expenditure cuts, had singled out the national scheme as a ‘soft’ policy programme in an increasingly commercialised ministerial portfolio. Even if this was not true, the interest groups considered the government had acted abruptly, and without adequate consultation. Moreover, many in the legal aid community were left in doubt as to whether the Howard government really understood the importance of the ‘partnership’, or mutual character, of the national scheme. Or, if it did understand this, whether its peremptory style signalled an undisclosed agenda to dismantle these informal alliances which had been crucial to its success.

Concern about the short and medium term Commonwealth agenda was shared by the State and Territory officials who attended the Standing Committee of Attorneys-General meeting referred to above. If these officials had expected the meeting to remedy their concerns, they were quickly proven to have been wrong. The Howard government treated the meeting as merely consultative, enabling the participants to "present their views on the approach to be taken during the negotiation process". Somewhat extraordinarily, given its publicly announced position, it believed that "to have come to [the] meeting with a firm position" on the new Commonwealth policies would have been inappropriate. The result was that meeting served only to exacerbate already existing concerns, ending with State and Territory representatives requesting the Commonwealth to define its agendas, including its expectations of the new legal aid agreements.

In October, the Attorney-General’s Department released a position paper clarifying the new Commonwealth agenda. Many of its proposals, whilst contentious, did not represent a dramatic policy shift. For instance, the position paper called for further development and refinement of national uniform statistical and performance management regimes "to ensure that funds are being used to achieve required outcomes and that best practice management approaches are in place". Since the mid-1980s, the Commonwealth had slowly built up pressure on the legal aid commissions to improve performance monitoring and data collection. Moreover, the AJAC recommendations in 1995, and the work of the Australian Legal Aid Board in 1995 and 1996 had reinforced those pressures. Therefore, in responding to the position paper the States may have protested that much had already been achieved in performance management and data reporting. They might also have contended the Commonwealth was now making demands that would add unnecessarily to the cost of administration, and diminish operational capacity. However, the performance management and data reporting proposals in the position paper were consistent with existing trends in Commonwealth policy. Furthermore, it was not unreasonable per se for federal legal aid administrators to seek to incorporate improved management measures in the new Commonwealth-State agreements.

Other Commonwealth proposals were similarly consistent with its existing pursuit of "improvements in the efficiency and accountability in the legal aid system". For example, the position paper signalled its desire to consolidate funding arrangements that had emerged incrementally outside the Commonwealth-State agreements since the late 1970s. The Howard government also sought to achieve greater national uniformity in the design and application of financial eligibility criteria. Neither of these proposals, nor others, such as reducing access to ‘solicitor of choice’ statutory provisions, improving the management of high cost cases or querying the cost-effectiveness of distributing work between salaried and private lawyers, were dramatically different from previous Commonwealth policies. However, the position paper did indicate an intention for the Commonwealth to become more interventionist and assertive in the conduct of its legal aid policies. In itself, an activist Commonwealth approach did not necessarily threaten the premises of the third phase of the national scheme, and may merely have resulted in the Commonwealth assuming the management mantle it had shed in the early 1980s. Even if NLA might question whether its selection of interventionist agendas displayed a real understanding of the cost control and rationing measures already forced upon legal aid managers by existing mismatches of funding and demand.

However, the position paper also re-stated the central element in the new Commonwealth agenda. It confirmed that the Howard government was seeking to "establish a clear link between its policy priorities and the expenditure of Commonwealth legal aid funds". Those priorities, which were defined in the paper for the "purpose of provoking discussion", included a range of matters in cases arising under Commonwealth or federal law. Implementing these priorities was the government’s prime objective in renegotiating national arrangements for legal aid:

The Commonwealth wants to renegotiate the legal aid agreements to ensure that the funds it provides to legal aid commissions are used for those Commonwealth matters which are a priority for the Commonwealth. Not all Commonwealth matters (ie matters arising under Commonwealth law) will attract funding and the Commonwealth desires that there be a capacity to adjust priorities as circumstances change over time.

The introduction of the concept of ‘Commonwealth matters’ and priorities was the crux of its new legal aid policies, and it marked a clear departure from the existing basis of its participation in the national scheme. Consequently, it is not immediately obvious why the position paper claimed the Commonwealth was not "looking to pursue profound structural change in legal aid delivery through the renegotiation process". After all, it was proposing to cut its financial support by $33.528m in 1997/98, a percentage reduction of 26% of the overall funding of the national legal aid scheme in 1996/97. Moreover, in defining and prioritising ‘Commonwealth matters’, the Howard government was restoring a funding mechanism rejected in the existing legal aid agreements. Progressively since 1987 the Commonwealth had financed its participation in the national scheme by reference to a cost-sharing formula agreed to by State and Territory governments. The standard formula saw participant governments share the net operating expenditure of the legal aid commissions in a 55%/45% ratio, irrespective of whether legally-aided matters were ‘Commonwealth’ or ‘State’ in origin. Prima facie, it seems odd for the Commonwealth not to have recognised the potential structural implications of the changes it proposed to the funding arrangements with the States and Territories.

Furthermore, the position paper also indicated a preference for re-organising the management of the State and Territory legal aid commissions. The third phase of the national scheme incorporated statutorily mandated boards of management representing governments, the legal profession, social services groups, lawyers and community legal centres. The Commonwealth now indicated that it sought to reduce the size of these constituent boards "to better reflect and permit good management of commission operations". In particular, the position paper expressed a preference for management reforms modelled on the Victorian experience. In 1995, the Legal Aid Commission of Victoria was abolished, and replaced by Victoria Legal Aid, a new statutory agency managed by a five person board, with access to a 13 member community consultative committee drawn from the "judiciary, the courts, the legal professions, the community sector" and agency staff. The October paper also foreshadowed other desirable management reforms, including the removal of the power of legal aid commission committees to review decisions refusing legal assistance on the grounds of insufficient funds.

The paper also addressed other aspects of legal aid policy. The Howard government reaffirmed its support for community legal centres, noting that the Commonwealth paid centres "to provide high quality, non means-tested legal services to people who are denied access to the services provided through legal aid commissions or by the private profession". The government saw the centres as an alternative to service provision in the national scheme, playing a "vital role" in conflict of interest cases and the provision of ancillary services, such as legal advice, community legal education and minor assistance, particularly in family law matters. Its position paper described community legal centres as "providing clear and accurate information", thereby equipping "clients to fully access [their] rights and exercise their responsibilities, often without the need for longer term, complex legal assistance or costly litigation … [by using] qualified volunteers and their involvement in extensive community and professional networks, community legal services are able to carry out this type of work efficiently and very effectively".

The position paper also noted the Commonwealth already made special provision for legal aid for Australian indigenous peoples, allocating $35.652m to Aboriginal and Torres Strait Islander Legal Services (ATSILS) in 1996/97. Somewhat pointedly, it reminded the States and Territories that the fact that "Commonwealth provides specific funding for indigenous peoples does not mean that [it] accepts exclusive responsibility for them in every aspect of their daily lives". The paper went onto state that the Commonwealth view was that "legal aid commissions would assess any application for assistance from an indigenous on the same basis as any other applicant". It also made it clear that the government’s view was that ATSILS were the appropriate source of legal aid for indigenous people, unless the type of matter involved was a notified Commonwealth priority.

Neither the position paper nor the opening of negotiations with the States resolved concerns about the new Commonwealth agenda. In September 1996, the Senate, on the motion of the federal Labor Opposition, referred the question of fair and equitable national arrangements for legal aid to its Legal and Constitutional References Committee for inquiry and report. Shortly afterwards, the Senate Committee invited submissions and convened initial public hearings, publishing its First Report in March 1997. The report described the indicative new direction of Commonwealth policy, clarified the protests of the major interest groups, and expressed the Committee’s concerns that:

even in those States and Territories where some agreement has been reached, the detail of the [new] arrangements for legal aid services delivery has not been released … [The] Attorney-General’s Department was unable to provide … a finalised schedule of Commonwealth law matters that will be funded, or any clear indication of the … priorities in funding Commonwealth matters … [It] was also unable to inform the Committee as to the amount of the reduction in Commonwealth outlays for legal aid that will be experienced by each State and Territory legal aid commission.

Whilst concluding this situation "left the future of Australia’s current legal aid system … uncertain", the Senate Committee determined it needed more time to complete its inquiry, and assess the evidence. However, it recommended the government consider appointing a "high level representative task force to advise … on the legal aid system and its place in Australia’s justice system". Three months later, the Senate Committee published its Second Report, reviewing developments in implementing the new Commonwealth policies, addressing several of its terms of reference and making eight recommendations to the government.

Meanwhile, the interest groups maintained their opposition. In late November, the Law Council convened a National Summit on Legal Aid Funding attended by representatives of NLA, the National Association of Community Legal Centres, specialist interest groups, including the National Women’s Justice Coalition and the National Children and Youth Law Centre, the Australian Council of Social Services, religious and welfare peak bodies and several politicians. The National Summit called on the federal government inter alia to "recommit itself to the concept of provision of legal aid as an essential element in providing access to justice and acknowledge the adverse consequences to other Government expenditures of its cuts to legal aid". However, the government had no intention of doing so. Neither was it interested in awaiting the considered views of what it spokespeople dismissed as the "partisan nature and commentary" of the Senate Committee majority. The government acknowledged the legal aid system faced "systemic problems", but nevertheless believed it was an "opportune time to examine new proposals for the efficient and cost effective delivery of legal aid to those who need it most". Moreover, it defended its legal aid policies as "consistent with a range of Government policies, all related to the proper allocation of responsibilities between the Commonwealth and the States and Territories".

Delaying acceptance of the Commonwealth proposal was impracticable for State and Territory governments and legal aid commissions managers. Financial and other pressing political imperatives forced them to negotiate with the Commonwealth, notwithstanding fears about the implications of its new agendas. Thus, by early 1997 new legal aid agreements had been negotiated between the Commonwealth and the Australian Capital Territory, the Northern Territory, Queensland and South Australia, with "significant progress … towards a mutually agreed arrangement for Tasmania". Negotiations were finalised by the middle of the year with the remaining States. In all cases, the new agreements were to commence in the 1997/98 financial year, and to generally remain in force until 30 June 2000. Ultimately the total amount of Commonwealth expenditure cuts was less than it had anticipated. The result was that Commonwealth annual expenditure on the national scheme would decrease by $18.7m (14.58%) in 1996/97, rising to $25.46m in 1997/98 (19.84%): see Table 1. However, the reductions were not uniform, and reflected different outcomes negotiated by the different States and Territories. The variable outcomes compounded existing inequities in proportional expenditure on the national scheme: see Table 1.

Source: Senate Legal and Constitutional References Committee, Inquiry into the Australian Legal aid System, Third Report, (Canberra, Senate Printing Unit, June 1998), p 4.

1. The payments and funding data are based on figures supplied by Commonwealth Attorney-General’s Department to the Senate inquiry in May 1998.
2. These payments are generally larger than the amounts contained in the new inter-governmental legal aid agreements, which totalled only A $106.587m. Actual payments "reflect reimbursement payments made to commissions during the year for 1996-97 costs in relation to war veterans’ matters, child support scheme matters and expensive criminal cases", and flow from increases approved by the Prime Minister in the Additional Estimates Committee, Winter/Spring sittings 1997.

The renegotiated agreements also substantially incorporated the political and management principles of the new Commonwealth policies. The agreements expressed the mutual objectives of the contracting states to be fourfold: one, the provision of Commonwealth funds for legal assistance in accordance with its priorities; two, achieving efficient and effective management structures and reporting mechanisms; three, achieving effective and efficient service delivery including early intervention and preventive strategies, and; four, uniformity of access to the legal aid system through equal national distribution of resources. In effect, the new agreements substituted a variant of the purchaser/provider model in lieu of the inter-governmental co-operative model in previous Commonwealth-State legal aid agreements. In the new model, the States and Territories agreed through to act as agents of the Commonwealth, with responsibility to ensure that its funds were spent in accordance with scheduled priorities. The agreements defined ‘Commonwealth priorities’, and Table 2, which is based on the 1997 agreement with Victoria, illustrates the types of matters included within that concept.

Notes:

1. Matters arising under the Commonwealth Family Law Act, Child Support (Assessment) Act and Child Support (Registration and Collection) Act.
2. Protection of child’s safety/welfare, risk of child’s removal overseas/remote location, preservation of assets, risk to applicant’s safety or other exceptional circumstances.
3. Legal aid to be subject to the ‘6 weeks rule’ (apart from interim orders/injunctions in appropriate cases).
4. Applicants for legal aid in non-urgent family law matters should ordinarily be required to first pursue non-litigation processes (eg, counselling or conferencing to resolve issues in dispute). This principle is not applied in cases involving investigations/allegations of child abuse, violent or coercive behaviour, demonstrated intransigence or impracticability (eg, distance or lack of accessible ADR services).

4. Legal aid to be available if an order is required and no alternative source of advice is available.
5. Charges under any Commonwealth statute (including charges under the national Corporations Law scheme). In joint Commonwealth/State criminal proceedings, Commonwealth funds can be used to provide legal aid on a proportional basis.
6. Where the applicant has a reasonable prospect of acquittal, and there is a real prospect that if convicted, he/she would be imprisoned or lose their livelihood.

7. Matters arising under a Commonwealth statute. Legal aid available in limited circumstances in non-statutory claims against the Commonwealth.

The legal aid agreements also specified that expenditure on ‘Commonwealth priorities’ should comply with new legal assistance guidelines. The Commonwealth Guidelines fixed the availability of legal aid in family law proceedings, including provision for cost management, and criminal and civil proceedings, and included machinery for ‘capping’ the total funds available to legally-aided parties or accused. The original guidelines were quickly amended, prompting the Senate Committee to comment that "the breadth of the changes required [provided] further evidence of the lack of adequate planning by the Commonwealth for the transition to the new … arrangements".. Eventually, the guidelines were generally nationally uniform, containing few, and relatively insignificant, jurisdictional variations.

The Commonwealth Guidelines also contained new eligibility criteria. Financial eligibility for legal aid in ‘Commonwealth priority’ matters was to be assessed according to regional versions of the National Means Test. A new, three part test was adopted for the assessment of the merits of an application. An applicant was first required to satisfy a ‘reasonable prospects of success test’. Secondly, the guidelines directed the State and Territory commissions to apply a hybrid version of the ‘ordinarily prudent self-funding litigant test’. Decision-makers granting or refusing legal aid in ‘Commonwealth priority’ matters were to ensure applicants stood pari passu with ordinary litigants without unusually "deep pockets", and displaying a rational, cost-effective approach to litigation. At the same time, the merits test required decision-makers to be cognisant that few such personages existed amongst taxpayers, who, whilst funding the ‘privileges’ of legal aid, were themselves generally financially disqualified from access, and typically were otherwise personally unable to readily finance the cost of legal representation. Thus, State and Territory decision makers were enjoined to adopt strategies "which will provide solutions to assisted clients problems at minimum cost [to] reduce the inequity between those who have access to assistance and those who are marginally excluded". Thirdly, the merits test included a new, super-added requirement known as the "Appropriateness of Spending Limited Public Legal Aid Funds" test. This test provided that legal aid in ‘Commonwealth matters’ was only to be granted if "the costs involved in providing legal assistance are warranted by the likely benefit to the applicant, or, in some circumstances, the community". Ostensibly, as the illustrations in the guidelines indicated, the test was intended to prevent financial profligacy. However, as the Senate Committee later noted, potentially had other applications in practice.

The Howard government’s policies were not restricted to renegotiating the Commonwealth-State agreements. In August 1996, it announced commencement of the first phase of a Commonwealth Legal Assistance Needs Study. This study was to canvass a range of issues, including developing indicators of demand for services, identifying gaps in service delivery and assessing ‘unmet need’ for legal aid. In late 1997, the Attorney-General announced the second phase of the study, including identification of "expressed demands for legal assistance". Whilst the Legal Assistance Needs Study was to focus on ‘Commonwealth priorities’, the federal government anticipated its results and methodology would assist State and Territory governments to respond to community needs. Similarly, in May 1998 the Howard government announced funding for a study profiling privately and publicly funded cases (initially in family law) "to assist in determining effective and equitable provision of legal aid funding".

Implementation of the new policies had both negative and positive effects. Reduced Commonwealth funding aggravated existing resource scarcity, with consequential short and longer-term reductions in timely and quality legal assistance in the national scheme. The new Commonwealth policies also had an important collateral outcome that has so far been overlooked. Implementing the policies destroyed the third phase of the national scheme, thus terminating the Australian version of the Western post-war experience of legal aid. This is a serious claim, and consequently it is important to explain how and why it occurred. It is tempting to attribute sole responsibility to the Howard government and its actions. Certainly, it was culpable, and deserves approbation, but its actions alone did not destroy the third phase of the national legal aid scheme. We must be careful to distinguish between the actions fairly and properly attributable to the Howard government, and prior actions and policies of previous federal governments.

From a policy perspective, the ground had been prepared in 1995 when the Keating government officially replaced legal aid as the centrepiece of Commonwealth policies on legal citizenship and access to law. Furthermore, it’s the Keating government’s Justice Statement also signalled an expectation that in future the national scheme should produce "specific outcomes" reflecting "the Commonwealth’s policy concerns", and its Commonwealth expenditure on legal aid. Moreover, the developments over 1996-98 must be seen in the context of Commonwealth legal aid policy since 1976. The life of the third phase of the national scheme paralleled the retreat of successive federal governments and the Commonwealth from national social expenditure and public functions. Initially, these shifts in social and economic policy were subtle, and not readily discernible, either in Commonwealth outlays on legal aid or in other fields of social expenditure. The retreat of the federal welfare state from its mid-1970s dalliance with social citizenship and its incumbent financial obligations only began in earnest in the early 1980s under the Hawke Labor government.

Nevertheless, indicators of the future impact of these social policy shifts on legal aid were already present. Over 1977-83, neither the Commonwealth Legal Aid Commission nor the Commonwealth Legal Aid Council were enabled to perform the management and advisory functions contemplated in the original Commonwealth-State agreements. Similarly, their dual successors over 1988-95 – the National Legal Aid Advisory Committee (NLAAC) and National Legal Aid Representative Council - were sparsely resourced, and equipped with minimal national resource management statutory functions. Indeed, throughout the 1980s, save for its growing interest in controlling expenditure, the Commonwealth progressively delegated de facto responsibility for managing the national scheme to the State and Territory legal aid commissions, and their directors or CEOs. Thus, the Commonwealth under the Howard government was not acting totally out of character in confining its exposure to the costs of national legal aid. Its policies were consistent with a pattern of incremental Commonwealth disengagement from its original contracted obligations in the third phase of the national scheme. This pattern was evident, to a greater or lesser degree, in the legal aid policies of all federal governments since 1976.

The funding cuts announced in 1996 are susceptible to a similar comparative analysis. It is incontestable this produced an immediate and adverse impact on the operations of the national scheme - as did the purchaser/provider model. By February 1998, the legal aid interest groups were reporting reduced availability of services, and a decline in the scope and quality of legal assistance through lower fee scales, funding caps and application of the ‘Commonwealth priority’ guidelines. Furthermore, the concept of ‘Commonwealth priorities’ created new problems for State and Territory legal aid providers. Administering the jurisdictional divide was difficult, and probably expensive, with the Senate Committee reporting that "a number of legal matters are not readily classifiable as Commonwealth or State law matters". The evidence also suggested application of the new guidelines regularly produced anomalous and inequitable results, notably in the administration of grants of legal assistance in domestic violence and other family law matters. The renegotiated agreements also resurrected the issue of State governments increasing direct outlays to provide legal aid for their ‘own’ citizens in matters of ‘State’ and ‘Territory law’. In late 1996, it remained to be seen if or when those governments would respond to these freshly demarcated responsibilities.

However, neither parsimonious funding nor consequential operational problems were new to the national scheme. The size of the Commonwealth financial contribution had always been problematic. Initially, its contribution was calculated by aggregating the cost of the annual caseload of the Australian Legal Aid Office (ALAO) immediately prior to implementation of the first Commonwealth-State agreements. ALAO regional office caseloads (and accordingly levels of Commonwealth expenditure in different jurisdictions) varied according to population, the range of services provided, the scope of existing State and Territiory legal aid schemes and local transaction factors. The aggregative method of calculating the Commonwealth contribution to legal aid was known as the ‘numbers system’. It remained the primary calculator for Commonwealth funding in the national scheme until the 45%/55% formula introduced by the second series of legal aid agreements referred to above. However, the 45%/55% funding formula also failed to establish a systematic connection between poorer people’s needs, ‘demand’ for services and optimum funding levels for legal aid. Instead, the formula was a product of emerging, new program management requirements whereby the Commonwealth sought to ‘cap’ its financial exposure to the States and Territories as part of a general management review of national expenditure. In any event, by 1990 it was clear to legal aid stakeholders and many observers that overall funding levels were seriously inadequate. This situation was not redressed by, the adoption of ‘access to justice’ policies in 1995-96, a development which had few positive financial outcomes for the national scheme. Consequently, when the Howard government came to office an accumulated scarcity of funding and delivery resources already seriously challenged the operational capacity of the national scheme. The government’s policies clearly aggravated this situation, especially through the renegotiated legal aid agreements. As the Senate Legal and Constitutional References Committee reported in mid-1998, there was a "lack of adequate funding across all areas of the legal aid system". Nevertheless, funding cuts alone were insufficient to destroy the third phase of the national scheme, notwithstanding having a demonstrably deleterious impact on its operational capacity.

The critical difference in the Howard government’s policies was its attack on the institutional mutuality central to the third phase of the national scheme. This mutuality had been expressed in concrete, cultural and organisational dimensions. Its concrete dimension was the co-operative federalism which inspired the ‘in principle’ inter-governmental agreement on legal aid in 1976. The resulting first and second series agreements had expressly accepted the provision of citizens’ legal aid as a joint responsibility of Commonwealth and State governments. The terms insisted upon by the Howard government in the new agreements terminated this mutual responsibility for legal aid. As described above, those agreements provided that Commonwealth funds were to be spent exclusively on ‘Commonwealth priority’ matters, with the necessary services supplied by State and Territory agent providers in accordance with prescribed guidelines. The re-negotiated agreements also allowed the Commonwealth to shed responsibility for providing legal aid in civil and criminal matters arising within the State and Territory legal systems. Thus, the policies of the Howard government destroyed the mutual or joint venture quality, which was a key distinctive feature of the third phase of the national scheme.

The advantages of these new agreements is seen as substantial. In particular, they avoid the artificiality and unproductive work associated with identifying and maintaining records in relation to "Commonwealth matters", emphasise the shared Commonwealth and State responsibilities towards the provision of legal aid, and to give the LACs the capacity to manage all aspects of their funds, allocating work and making contractual arrangements designed to maximise cost effectiveness.

Other governments and the interest groups therefore harboured justifiable doubts as to the bona fides of the Attorney-General’s allegations. These doubts about the bona fides of his government’s policies were not assuaged by its token interest in consultation, whilst clearly intending to stamp its will on the new legal aid agreements.

Thirdly, the modus operandi of the Howard government also highlighted concerns amongst stakeholders about its real agenda for the future of the national scheme, and organised national, public provision of legal aid. In reviving the distinction between ‘Commonwealth’ and ‘State’ applicants, and Commonwealth and State legal aid matters, the government adopted a mechanism discredited operationally in the 1980s. Moreover, demarcating Commonwealth and State responsibilities for legal aid contradicted mainstream contemporary patterns of response to legal regulation. Since the mid 1980s, the regulatory trend in the Australian welfare state had favoured co-ordinated national responses to the legal problems of governance. This can be seen, for instance, in the joint Commonwealth-State responses evident in legislation cross-vesting superior civil court jurisdiction, the national strategies in AJAC’s recommendations and the Corporations scheme and related developments in companies and securities law. Co-ordinated national responses were also favoured in the National Competition Policy Review, the role of the re-configured Australian Competition and Consumer Commission (ACCC), the Australian Law Reform Commission inquiry into the adversary system, the emergence of national markets for lawyer services and the cross-jurisdictional rights of practice created by the Mutual Recognition Act 1992 (Cth). The Howard government may have had good reasons for departing from this regulatory trend, and re-introducing the Commonwealth-State divide to national legal aid management notwithstanding the more recent historical experience. If it had such reasons, the government neither articulated them clearly, nor did the rationale it presented in the new legal aid policies convince the stakeholders in the national scheme:

The … demarcation between the funding of Commonwealth and State law matters is not only harsh but is impractical and, in many instances, absurd. Our society says that the legal system in this country has reached a point where many areas of law involve inextricable overlap between state and federal law and remedies, and that this is a process which cannot and should not be unravelled or reveres at this state.

Stakeholders concerns about the government’s agenda were not allayed by practical experience of the Commonwealth funding arrangements for Environmental Defenders Offices. The new legal aid policies prevented Environmental Defenders Offices from undertaking litigation related work. This restriction raised the price of the access threshold to the courts in environmental matters, at a time when citizen activated law enforcement was growing in significance. Many legal aid interest groups agreed with the majority of the Senate Legal and Constitutional References Committee that these restrictions were "unjustified and contrary to the national interest".

Fourthly, the Howard government decimated the ‘goodwill factor’ in the national scheme by the attitude it adopted in relation to the Senate legal aid inquiry referred to above, and the submissions made by the interest groups. In mid-1998, the Senate Legal and Constitutional References Committee complained that it had "taken the Attorney-General some 14 months and 11 months respectively to formulate and deliver responses to [the] … considered views" expressed in its first two reports. A majority of its members interpreted this delay as "a very clear indication of the fact that the Attorney-General and the Government have failed to appreciate the very significant problems that they have created in the legal aid system". Moreover, when the government did finally respond, it rejected all the Committee’s recommendations. A majority of the Committee condemned this response as "a wilful disregard of the concerns expressed by a wide range of witnesses and submissions to the Committee’s inquiry … [and] is a strong indicator that the Government will ensure that the legal aid system will continue to fail Australians".

In combination, the government’s actions in announcing and implementing its new policies had a profoundly damaging impact upon the other stakeholders in the national scheme. This was especially true in the case of the State and Territory governments, the legal aid commissions and their managers, the organised legal profession, such as the Law Council and the law societies and bar associations, and practising lawyers. The new Commonwealth policies were far less damaging at least in the short to medium term for the community sector, as we discuss below. However, it was the State and Territory governments and the organised private legal profession and its lawyers that had been principal partners of the Commonwealth in the management of the national public interest in legal aid. The government’s actions denied their deep investment and involvement in the national scheme. The new Commonwealth policies also affronted many of the values of social citizenship under the ‘rule of law’ and modern legal ideals of professionalism which had informed and justified their participation in the organisation and provision of legal aid. Inevitably, the result amongst these major stakeholders was to produce a loss of trust and confidence in the Commonwealth, and it was this fundamental loss of confidence, which ended the mutuality essential to the survival of the third phase of the national scheme. As one Commonwealth insider has described it, the State and Territory governments, NLA and its managers and the lawyers ‘don’t trust us any more’.

Secondly, discarding ‘co-operative’ federalism has assigned new roles to Commonwealth legal aid managers, and State and Territory governments. The new legal aid agreement have equipped the former with the machinery to engineer policy, and steer the allocation, distribution and provision of national legal aid services. Thus, the policies adopted by the Howard government have had the incidental effect of publicly highlighting the Commonwealth role in legal aid, to a greater degree than any time since the mid-1970s. However, it remains to be seen if Commonwealth officialdom has the managerial capacity and inventiveness to exploit this new role, and whether the government will give it the policy incentives to do so in a socially amelioratory fashion. Although there are some encouraging signs, if the experience in 1996-98 is any guide. . The Legal Assistance Needs Survey and family law research, the expansion of the community legal sector and the reforms to ATSILS are all examples of more pro-active approaches to applied research, management and policy development. Demarking the responsibilities of State and Territory governments may also have potential positive implications. As already noted, the historical response of these governments to direct funding of legal aid was minimal. The generally downward trend of State and Territory expenditure on public services suggests this pattern may be repeated in the future. However, the State response has so far been mixed, with noteworthy increases in direct government input funding to the national scheme in New South Wales (10.5%), Queensland (41.6%), South Australia (17.6%) and Western Australia New (39.6%) since 1996: see Table 3. Moreover, the direct State inputs in the current financial year are anticipated to be A$100.54m (an overall increase of 12.5% from 1998/99).

Source: National Legal Aid Secretariat

1. Excluding community legal centres.
2. The major legal aid providers also receive non-Commonwealth income from special trust and statutory interest funds (A$25.67m in 1996/97, A426.47m in 1997/98 and A$27.4 in 1997/98) and self-generated revenue (A$38.26m in 1996/97, A$29.2 in 1997/98 and A$21.22m in 1997/98).

Thirdly, increased expenditure on the community sector provided some compensation for the funding cuts to the national scheme. This was a clearly a positive effect of the Howard government’s policies, subject to several qualifications. The increase in community sector was negligible in overall funding terms ($11.4m in an estimated total legal aid budget of A$164.8m), and mainly up-graded existing service capacity. Moreover, the five new non-metropolitan centres must service large geographic regions. They are likely to encounter practical difficulties in providing adequate advisory and educative services, and satisfying popular demand for civil, criminal and family law legal assistance. Furthermore, the community sector has only played a complementary role the national legal aid system, and primarily in relation to the provision of information, legal advice and community legal education. Thus, increasing its share of the Commonwealth financial cake has almost certainly not adequately compensated for the declining availability of family, civil and criminal law court oriented, ‘in litigation’ services in the national scheme.

We also need to be cautious in another respect in assessing the benefits of the new emphasis on community legal centres. Its economic agenda and the ideological sympathies of some of its ministers influenced the Howard government’s preference for community-based service delivery. In the former context, half if not more of the community legal centres are classifiable as small legal services practices (0-4 paid employees) using the relevant Australian Bureau of Statistics industry criteria, with the reminder typically in medium size classifications (5-9 or 10-19 paid employees). Small legal services practices occupy the lower end of the legal services industry operating costs spectrum. Thus, the overhead costs of providing services in many community legal centres is comparatively cheaper than through the major legal aid providers where operating costs are higher, and akin to those in medium and large private legal services providers. Furthermore, the unit cost of legal advice, community legal education and other ‘outside litigation’ services is generally significantly less than units of ‘in-litigation’ services, such as conducting contested family and criminal law proceedings. The higher unit cost of ‘in litigation’ services makes providing legal aid in the major providers comparatively more expensive, and further lowers the cost profile of the community legal centres. It was this low cost profile which made the centres financially attractive to a government bent upon reducing the bottom line in Commonwealth public sector service delivery.

Moreover, many centres make extensive use of unpaid voluntary labour, and proclaim volunteerism as a distinctive feature of their philosophy of service delivery. These characteristics made community-based legal aid doubly ideologically attractive to the Howard government. One reason was that the centres’ advocacy of volunteerism sat happily with the voluntaryist ideals of its cadre of New Right influenced ministers. The second reason was that the centres’ ability to demonstrate volunteerism in action matched the government’s rhetoric of responsible and contributing citizens performing their duties of civic participation, and sharing the costs of social governance. Thus, for both economic and ideological reasons increasing Commonwealth spending on community legal centres was attractive to the Howard government. It was certainly a more attractive option than the alternative of bolstering what it perceived to be an inefficient and high cost national legal scheme that relied heavily on expensive services provided by the private legal profession.

However, the new emphasis on community legal centres poses longer-term dangers to the effectiveness and scope of the national legal aid system. In the first place, a greater Commonwealth role may threaten the very values the community legal sector espouses, as well as its techniques of service delivery. The volunteerist bond it shares with the Howard government is more apparent than real, and proceeds from different if not antithetical assumptions of community, society and citizenship. Conflict may well erupt in the future over direction and control, as the government’s ability to co-ordinate and manage its new community-based legal aid policies grows. Secondly, there are serious dangers of an undesirable skewing of the availability of legal aid services if the reasons for the lower cost profile of the centres are not acknowledged. Cross-sector comparison in legal aid is like comparing apples and pears, if for no other reason than that the major providers are required to sustain a wide range of ‘in litigation’ and ‘outside litigation’ services across a State or Territory. Moreover, the government and its policy-makers must recognise the much lower unit cost of ‘outside litigation’ services, and acknowledge that this is a major contributor to the low cost profile of the community legal aid sector. Otherwise, the new emphasis it enjoys in Commonwealth policy endangers the reach of the national legal aid system, and the scope of the services that are currently available. In the longer term, we might produce a system servicing greater numbers of citizens at lower cost, but at the price of diminished accessibility to legally aided ‘in litigation’ services in civil, criminal and family law proceedings.

The Howard government’s actions also had a wider significance going beyond the operational and organisational effects described above. As we have seen its policies re-introduced the concept of ‘Commonwealth priorities’ and adopted eligibility guidelines defined by reference to Commonwealth or federal needs. In taking these actions the government restored the ingredients that had shaped Commonwealth legal aid policy from 1901-72, ie, a focus on state demands and needs, as opposed to focusing on those of its citizens. Commonwealth policy in that period gave scant recognition to access to legal aid as an expression of legal and social citizenship, save for a passing interlude in the late 1940s. National public expenditure on legal aid was minimal, and restricted to activities associated with the performance of governmental functions. There was therefore a discernible degree of resemblance between the premises of pre-1973 Commonwealth legal aid policy, and the policies introduced by the Howard government in 1996.

Thus, it is arguable that pro-active Commonwealth involvement in citizens’ legal aid in the national scheme over 1973-96 was something of an aberration. And that the actions of the Howard government merely restored the status quo in Commonwealth policy, and the division of inter-governmental responsibility for providing legal aid services. True it is that the result was to leave a society with serious problems in citizen’s inequality before the law. However, it could be argued that those problems were no different in kind or significance to those encountered by the citizenry in the welfare state of the 1920s, 1940s or 1960s. We might still be justifiably critical of the Howard government disengaging the Commonwealth from citizen focused legal aid, but be equally compelled to acknowledge that earlier governments had come to similarly unhappy accommodations with flaws in the reality of legal citizenship.

However, in pre-1973 Australian society the non-engagement of federal governments from legal aid was never a matter of great political moment. From the 1900s organised legal aid was provided to the poor through poor persons schemes, State agencies, law society schemes, and informally by practising lawyers. It was only in the late 1950s and during the 1960s that federal non-engagement became politically significant, and even then only amongst law and poverty reformers and the private legal profession. Indeed, national legal aid reform was an insignificant component of the Labor Party law and justice program in the 1972 federal elections. However, in the next 24 years Australian society and the politics of law in the Australian welfare state underwent significant transformations. These transformations gave a wider significance to the government’s restoration of the ingredients of pre-1973 Commonwealth legal aid policy, and three reasons why this was so are discussed below.

The first reason is that the quality of legal citizenship is incomparably more important in the 1990s welfare state than ever before. Quality for this purpose is measurable by concrete standards, such as real levels of affordable and effective access to the legal system. Alternatively, it is measurable by degrees of correspondence to normative standards, such as social citizenship or consumer citizenship. Applying either standard, legal citizenship as expressed in the presence of fair and effective access to the legal system is now a social expectation, and this has been a post-1973 development. However, for the popular majority it is an expectation that has not been adequately satisfied in the 1980s and 1990s. Australia has experienced on-going and unresolved problems in providing effective and affordable access to the legal system. Moreover, there is a widespread perception amongst citizens, governments, politicians and even judges and lawyers that these problems are systemic. This perception is partly ideological, inspired by liberal centralist conceptions of the necessities of life under the ‘rule of law’. Nevertheless, there are concrete, personal and calculable problems on a major scale in effective access to law, especially for many ordinary and poorer citizens. Furthermore, the size and scope of the legal system has increased since 1972, notwithstanding the downsizing of public administration and government since the early 1980s. The Australian welfare state remains "a giant machine for making and applying law [and for] social control …[over its citizens] which is exercised through law".

Downsizing has merely transformed the legal technology of government, and done little to reduce its scale or social impact. Indeed, privatisation of Commonwealth and State functions, the corporatisation of public assets and the national competition policies promoted by AJAC and enforced by the ACCC have consciously manufactured a new and accountable style of citizenship. This consumer-citizen has been encouraged to take responsibility for personal well being, including the enforcement of his or her economic rights and interests in an increasingly diverse and complex legal regulatory system. These various transformations in the administration of the welfare state lowered the legal threshold of citizen’s relationships, with each other, and as consumers of public and private sector services. They also exacerbated both the unmet expectations of legal citizenship and concrete problems in access to the legal system mentioned above. In these contexts, the actions of the Howard government in stepping away from an emphasis on the legal aid needs of ordinary and poorer people further diminished the quality of legal citizenship in the Australian welfare state.

Their public policy implication is the second reason for the special significance of the Howard government’s actions. Its decision to limit and restrict popular access to legal aid not only diminished the quality of legal citizenship. The decision also signalled the presence of an implicit general policy towards citizens’ access to law. Public policy usually results from positive state action, such as when the Howard government announced its changes to legal aid. However, public policy can also result from state inaction, such as when governments fail to act "over time in a fairly consistent way against pressures to the contrary". It this negative dimension of public policy which we encounter in this case. The government’s actions in restricting eligibility for legal aid and introducing ‘Commonwealth priorities‘ ignored the accumulated evidence of problems in citizens access to law. In ignoring this evidence the government reflected its disinclination to comprehensively redress the causes of this entrenched problem of post-1970s Australian society. It adopted by default a policy that placed improving the real quality of legal citizenship low on the agenda of the welfare state. To be fair, the Howard government was not alone in its unwillingness to initiate the far-reaching reforms necessary to dramatically enhance legal citizenship. Nevertheless, its inaction endorsed similar responses of recent Labor governments, and further entrenched inaction as the predominant response of the contemporary Australian welfare state to its citizen’s difficulties in achieving fair and effective access to the legal system.

Thirdly, the Howard government‘s actions had a superadded negative impact upon the quality of the social citizenship of the poor. The concept of ‘Commonwealth priorities’ discussed above matched scope and eligibility with government functions and other state priorities, as opposed to the individual needs of poorer citizens. For example, the inter-governmental agreements provide that matters "of priority to the Commonwealth are predominantly in the areas of family and criminal law, and certain civil matters [but] may be subject to change … in line with changes in community needs and Commonwealth policies". Furthermore the ‘appropriateness of spending limited public legal aid funds test’ also subjects legal aid to a public benefit test. Thus, the new policies weigh the entitlement of otherwise eligible poorer citizens against the "numerous competing interests for [Commonwealth] legal aid resources". The effect was to commodify the hitherto pre-eminent claims of the poor to legal aid, thereby compelling them to compete in the resource markets of the welfare state.

One might also argue that the omission of new legal technologies such as mandatory, nationally uniform complaints systems from the Commonwealth-State agreements also debased the citizenship of the poor. It could be interpreted as indicating that policy-makers envisaged future recipients of Commonwealth funded legal aid as supplicants, and as such disqualified from benefiting from the responsibilities of consumer citizenship. However, this is more likely to have been an administrative oversight. Moreover we must take care in too readily assuming ideological motives to the Howard government. Developments in the contemporary Commonwealth public sector are often far less dictated by ideological prescription than the surrounding rhetoric sometimes indicates.

There is a powerful case that under the first Howard government Australian legal aid experienced a difficult and destructive period. The availability of services was further restricted, serious questions emerged concerning quality of legal aid provided via capped grants of legal aid and radical changes occurred in the management of the national scheme. Moreover the government changed the focus of Commonwealth legal aid policy with little apparent regard for the wider social consequences. Altogether its actions had "a profound effect on a wide range of individuals and groups" and failed "to take into account the complex nature of legal aid … and the interdependency of the groups that provide those services". The result was that the developments over 1996-98 rang the death knell of the Australian post-war response to the problems of citizens’ legal aid.

The paper has described the historical and immediate background to those developments. It has also described the content of the new Commonwealth legal aid agenda, documented the story of its implementation and analysed its negative and positive effects. In the case of the former, the paper has suggested that it is important we identify the negative outcomes for which the Howard government can fairly be held solely responsible. In particular that we should recognise that its decisions were taken against the background of the retreat of successive federal governments from Commonwealth participation in citizens’ legal aid. Moreover, both its Coalition and Labor predecessors had consistently attempted to minimise Commonwealth financial exposure in its agreements with the States. Furthermore, the paper has pointed out that it is also important to acknowledge the positive effects of the government’s actions. For instance, the new Commonwealth policies retained existing initiatives in statistical and performance management, increased accountability and research and increased spending on community legal centres. All too often the Australian debate is doggedly partisan, and reluctant to attribute credit or to acknowledge the multiplexity of the politics of legal aid.

However, the paper has not exonerated the Howard government from accountability for the negative effects for which it alone was responsible. Its actions destroyed the concrete, cultural and organisational mutuality that had been the lifeblood of the third phase of the national legal aid scheme. This ruptured the trust built up between the Commonwealth and State and Territory governments, the legal aid commissions and the legal profession over 20 years. Thereby it ended the organisational and policy substratum that has underpinned the Australian mixed model of legal aid. It remains to be seen whether the government can restore the confidence of its former partners as it shapes the next phase of the national scheme. The government was also solely responsible for departing from citizens focused legal aid, and restoring the ingredients of pre-1973 Commonwealth policy. Restoring state focused legal aid exacerbated existing shortcomings in the quality of legal citizenship and public policy and diminished the social citizenship of the poor. In this case, the Howard government either did not understand, or, if it did so, chose to overlook the special consequences of its new legal aid policies for citizens in the 1990s. In either event, its predecessors had also made comparable decisions or omissions. No previous federal government had been willing or able to undertake the far-reaching reforms to the modern legal system necessary to achieve full and effective legal citizenship in the Australian welfare state.

Finally, the major justification for this paper was to increase the accessibility of the benchmarks of Australian legal aid in the period. Its explanations and analyses may be useful to public administrators in other countries. They may also interest cross-national scholars in social theory, social policy or political economy who seek to better understand the experience of the mixed model of legal aid in Australia. The paper also contains at least three important lessons for those involved in the future of public legal services in Australia. Its first lesson is that it demonstrates the importance of adequate, accurate and complete historical perspectives on the origins and significance of legal aid. Commonwealth legal aid policy first surfaced under the Whitlam Labor government in, but it actually originated at Federation. Moreover, we must link Commonwealth policy with the history of its formative forces such as the shaping of social welfare, the politics of the poor and transformations in the legal services industry.

The paper’s second important lesson is that we must strive to improve the knowledge of public administration and social policy amongst legal aid policy makers. The managers of the new national scheme may be competent at controlling and targeting expenditure, and the legal aid lawyers and the private profession at service delivery. However, the Australian system continues to suffer from a dearth of expertise drawn from outside the legal aid sector. This is a pressing problem, as the Australian public sector in general is already moving beyond NPM, and designing improved techniques of service delivery, develop social policies suitable to downsized administration and experimenting with accountable corporate governance. Its marginal status in public administration was a serious and unremedied flaw in the third phase of the national scheme. In this new phase current there may be opportunities for a second chance, and they must to be grasped. The third lesson of the paper is that it shows the developments in 1996-98 completed the ambitions first expressed in the Keating government’s access to justice policies in 1995. The Howard government institutionalised the national provision of legal aid as part of a much larger Commonwealth enterprise for the allocation of public legal services. The legal aid commissions, NLA and the legal profession are no longer in the vanguard of the politics of access to law and legal citizenship. Rather they are a rearguard of the post-war response, and must adjust their role and perspectives to the emergent plural, diverse and fluid politics of law in the welfare state.