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Legislative Assembly for the ACT: 1997 Week 1 Hansard (18 February) . . Page.. 57 ..

MR HUMPHRIES (continuing):

Commonwealth has used to justify reducing legal aid spending, that is, that it feels it is no longer required to subsidise the conduct of State and Territory matters in legal aid commissions - even accepting that argument; and there are problems with that argument - the ACT is not in a position, and probably has not been in a position for the last 10 years, of being subsidised by the Commonwealth in legal aid matters.

Indeed, Madam Deputy Speaker, it is perfectly clear that, for a considerable period of time, the ACT has been subsidising the Commonwealth in respect of matters which the Commonwealth says it is primarily responsible for. Let us get a clear understanding of what those sorts of things are. The Commonwealth accepts it has primary responsibility in family law matters, and so it should; it has constitutional responsibility for family law matters; it has passed and administers the Family Law Act. Applicants in family law matters, applicants for child support, applicants in other areas such as social security appeals, people with immigration applications, people prosecuted under Commonwealth crimes legislation, and so on, are all people whom the Commonwealth says it has a primary responsibility for. In the ACT we are presently spending heavily on those areas but receiving from the Commonwealth considerably less than we would require to meet our expenditure in those fields. I would say to the Commonwealth that if it chooses to apply this principle it must necessarily come back to the ACT and be prepared to support a level of spending on matters which this area or these areas warrant.

Why, the question may well be asked, does the ACT spend more on Commonwealth matters than other places? There are a number of reasons; but I think one of those reasons, which has been overlooked, I suspect, by the Federal Attorney-General's Department, is that the ACT provides legal aid potentially to any person who is bringing a proceeding in the Canberra registry of the Family Court. The Canberra registry of the Family Court does not cover just Canberra; it covers a very large section of south-eastern New South Wales. People living in New South Wales are entitled to access the Family Court in Canberra and, in turn, access legal aid in and through the ACT Legal Aid Commission. It is factors such as that which have been overlooked. If the Commonwealth vacates the area of its own responsibilities in the ACT, the people who will miss out in that process will be applicants for urgent proceedings in the Family Court, applicants for child support orders and people who are seeking relief from incidents of domestic violence. I certainly am not prepared to pick up the slack where the Commonwealth leaves off in that regard.

There are also other very serious potential ramifications of a reduction in spending in this area. A few years ago the High Court ruled in the Dietrich case that if defendants in criminal proceedings did not have access to legal representation there was a prima facie assumption that they should not be prosecuted for the crimes that they had been charged with; that is, the right to representation is a fundamental right of any person charged with committing criminal offences. That has changed the landscape of a number of features of our criminal justice system, but particularly it has changed the landscape for legal aid.

It follows from that decision that, if legal aid is not available for defendants in criminal cases, it may well be the case that the court would have to dismiss proceedings against that person or stay proceedings against that person because adequate aid was not available to ensure their representation properly before the court. I am advised that there are five or six cases currently in the pipeline in the ACT that could be so affected.

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