Women, legal aid and social inclusion.
This article examines access to legal aid for women in light of the
Australian government's social inclusion agenda. It is notable that
the government's image of social citizenship does not include the
ability to invoke and enforce legal rights, and that discourses of
social exclusion have paid relatively little attention to gendered
patterns of exclusion. The article reports on a study of applications
for and refusals of legal aid for family law, domestic violence and
anti-discrimination matters by socially excluded women in Queensland. It
demonstrates the variety of ways in which Legal Aid Queensland's
grants process operated to further exclude and marginalise these women.
It argues that effective access to legal aid is an important element of
social inclusion, but that this goal cannot be achieved by reliance on
the tools of New Public Management.
Keywords: legal aid, social inclusion, women
(Laws, regulations and rules)
Legal aid (Research)
Citizenship (Laws, regulations and rules)
Sex discrimination against women (Laws, regulations and rules)
De Simone, Tracey
|Publication:||Name: Australian Journal of Social Issues Publisher: Australian Council of Social Service Audience: Academic Format: Magazine/Journal Subject: Sociology and social work Copyright: COPYRIGHT 2009 Australian Council of Social Service ISSN: 0157-6321|
|Issue:||Date: Summer, 2009 Source Volume: 44 Source Issue: 4|
|Topic:||Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime; 310 Science & research Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation|
|Product:||Product Code: 9101226 Domestic Violence (Families); 9101498 Legal Aid & Fee Reimbursmt NAICS Code: 92219 Other Justice, Public Order, and Safety Activities|
|Geographic:||Geographic Scope: Australia Geographic Code: 8AUST Australia|
The Australian government's social inclusion agenda envisages a state in which all Australians 'feel valued and have the opportunity to participate fully in the life of our society' (www.socialinclusion.gov.au). One of the key differences between discourses of 'poverty', 'disadvantage' and 'deprivation' and those of 'social exclusion' is that the latter adopt a dynamic analysis, focusing not just on access to material resources but on 'the social relations of power and control, the processes of marginalisation and exclusion' (Hague et al. 2001: 73). Thus, social inclusion necessarily requires a shift in or reversal of these power relations and marginalisation processes.
According to the government's policy, achieving the vision of a socially inclusive society means that: all Australians will have the resources, opportunities and capability to:
* Learn, by participating in education and training
* Work, by participating in employment or voluntary work, including family and carer responsibilities
* Have a voice, in influencing decisions that affect them (www.socialinclusion.gov.au).
It is notable that this image of social citizenship does not include the ability to invoke and enforce legal rights. This absence of legal effectivity from social inclusion agendas is not unique to Australia (Sommerlad 2004). Yet it is clear that unresolved legal problems can both result from oppressive social relations of power and control, and contribute to experiences of marginalisation and exclusion. For example, 'legal needs' studies undertaken in the UK have found that socially excluded groups such as people with chronic illness or disability, lone parents, and welfare benefit recipients are particularly vulnerable to experiencing multiple legal problems (Pleasence et al. 2004: 31-32, 45; Pleasence et al. 2006: 54). Similarly, a study of civil and criminal law problems in six socio-economically disadvantaged areas of NSW found a high level of legal need within these communities, and a wide range of legal problems experienced in particular by Indigenous people and people with a chronic illness or disability (Coumerelos et al. 2006: xviii-xx). The UK studies argue that promoting access to justice is an important means of tackling social exclusion (Pleasence et al. 2006: 155). Indeed, the ability to invoke her legal rights is a significant avenue by which the excluded subject may be able to exercise agency, to regain control of social relationships and resist her own marginalisation. It can empower 'the vulnerable to be able to control their life circumstances and the future with some degree of success' (Ferguson 2003: 213).
The ability to exercise legal rights, however, is far from the heart of the government's current priorities under the social inclusion agenda, which include 'helping jobless families with children by helping the unemployed into sustainable employment and their children into a good start in life', 'addressing the incidence of homelessness by providing more housing and support services', 'assisting in the employment of people with disability or mental illness by creating employment opportunity and building community support', and 'closing the gap for Indigenous Australians with respect to life expectancy ... educational achievement and employment outcomes' (www.socialinclusion.gov.au). But at the same time, access to court orders and legal remedies--for example in relation to family breakdown, domestic violence or employment discrimination--may be a crucial means of helping jobless families with children achieve safe, stable post-separation living arrangements, reducing the incidence of homelessness caused by domestic violence, enhancing employment security for people with disability, and 'closing the gap for Indigenous Australians' in all of these areas. More recently, the Strategic Framework for Access to Justice in the Federal Civil Justice System, issued by the federal Attorney-General's Department in September 2009, has acknowledged that 'improving access to justice is a key means of promoting social inclusion' (Access to Justice Taskforce 2009: 158), and in his foreword to the report, the Attorney-General describes access to justice as 'an essential precondition to social inclusion' (Access to Justice Taskforce 2009: ix).
The capacity to invoke formal justice mechanisms to protect and enforce rights and address legal problems generally requires legal representation, and for those unable to afford their own representation (which is likely to be a characteristic of socially excluded groups), this requires the availability either of free legal assistance or of legal aid. (1) This article focuses on the second of these options, and reports on a study of women's access to family and civil legal aid through an analysis of the legal aid grants process operated by Legal Aid Queensland (LAQ). The study's concentration on women was animated by ongoing feminist concerns about women's unequal access to legal aid, due to the fact that the majority of legal aid expenditure is devoted to criminal law, and the great majority of recipients of criminal legal aid are men (Office of Legal Aid and Family Services 1994; Australian Law Reform Commission 1994; Graycar & Morgan 1995; Senate Legal and Constitutional References Committee 2004; Women's Legal Aid 2005). By contrast, areas of greatest concern to women--including family law, domestic violence and discrimination--are relatively poorly funded.
The concentration on women also enabled us to consider gendered patterns of social exclusion, and to contribute to the underdeveloped literature on this topic (see, e.g. Jackson 1999; Hague et al. 2001). For example, in the recent literature review on social inclusion produced by the Australian Institute of Family Studies, there is no more than a brief mention of the fact that 'family violence, sexual assault and sexual abuse [and we would add discrimination] are significant contributors to social exclusion, both pushing people into social exclusion and worsening the experience of social exclusion for the most vulnerable' (Hayes et al. 2008: 31). Yet even here, the language used is that of 'people', rather than acknowledging that women are the main targets of family violence, sexual assault and sexual abuse. At the same time, we were conscious of the ways in which gender intersects with other potential dimensions of exclusion and were alert to the dangers of gender essentialism. As Jackson (1999: 130) has noted, '[g]ender mediates particular forms of exclusion but does not produce categories of people included or excluded in uniform ways'. Thus, the study focused on specific groups of women--Indigenous women, NESB women, older women (aged 60+), and women with a disability--who might, a priori, be considered at least at risk of social exclusion. In the following discussion, these are referred to collectively as women in our 'target groups'.
The research examined the institutional processes involved in applying for legal aid, and, in particular, the processes involved in, and women's experiences of, being refused legal aid. We found that despite its status as a social justice agency, many of the policies and practices of LAQ manifestly contributed to the social exclusion of these groups of clients, by failing to provide, or actively depriving them of, resources, opportunities and the capability to engage in using the available services, or to have a voice in influencing decisions that affected them. We do not believe that LAQ is alone among Legal Aid Commissions in this regard, as many of its practices and guidelines are in accordance with national standards. Neither do we believe that Legal Aid Commissions are alone among social justice agencies in having practices and procedures that inadvertently operate further to exclude their clients. The analysis set out below could (and arguably should) be applied equally to many other departments, agencies and organisations involved in the delivery of welfare-related services. As explained in the final section, however, we are also sceptical that the introduction of new standards and targets directed towards the goal of social inclusion would necessarily achieve that result.
Barriers to access to the legal aid system may be indicated by a disproportionately low level of legal advice seeking and applications for legal aid, and/or a disproportionately high level of refusals of legal aid, among groups that might be expected to have legal needs without the ability to afford legal representation. In order to investigate each of these possibilities, we commenced by analysing statistical data on the provision of advice services by LAQ, and applications for and refusals of legal aid, in the areas of family law, domestic violence and anti-discrimination law, over a seven year period (1 July 1997-30 June 2005). The start date of 1 July 1997 was the date on which the Howard government's legal aid reforms came into effect. Among other things, the reforms involved a substantial cut in Commonwealth legal aid funding, amounting to $120 million over the following four years, and the introduction of new national funding guidelines for family law matters, which severely restricted funding for property disputes and imposed additional requirements before funding would be made available in parenting disputes. In the context of these restrictions on the availability of legal aid, we were concerned to investigate which women did and did not have access to funding, for what reasons, and with what effects.
Within LAQ, applications are made to and funding decisions are made by the central office in Brisbane and 13 other metropolitan and regional offices. Since we were unable to consider all of the regional offices in detail, we undertook an initial review of refusal statistics and chose to focus, in addition to the central office, on the four regional offices that had refused women's applications for legal aid in the three areas of law at the highest rates over time. These turned out to be the Cairns, Southport, Toowoomba and Townsville offices of LAQ. We also conducted a file analysis of 322 cases in which women were refused legal aid by these five offices over the previous two years (1 July 2001-30 June 2003), in order to obtain further details of the refusal process. To flesh out and illuminate the statistical data, we conducted interviews with 152 of the women whose files were analysed; and interviews with 152 lawyers and community workers working with women in the target groups, 19 women representing themselves in court in domestic violence and family law matters, and six LAQ grants officers.
Applications for Legal Aid
As shown in Table 1, the statistical analysis of advice and application data indicated that older women were underrepresented in the use of advice services and in applications for legal aid compared to their population share (by contrast, NESB women had the highest rate of applications among the target groups). In addition, Indigenous women had a relatively low rate of applications for domestic violence matters. There were also some regional variations, notably
* the Cairns and Townsville offices of LAQ provided disproportionately few advice services to women in relation to domestic violence and received lower than their population shares of legal aid applications from women in relation to domestic violence; * the Southport office received relatively low proportions of family law and anti-discrimination applications from women.
The fact that older women sought advice and made applications for legal aid in the three areas at a level below their population share may possibly be explained by the fact that women aged 60+ are less likely than younger women to experience violence from intimate partners (Australian Bureau of Statistics 1996: 5), and are also less likely to experience disputes over post-separation arrangements for children (the major area of family law for which legal aid is available) and employment discrimination (the major area in which complaints of discrimination are made), because they are less likely to have children aged under 18 and to be in paid employment. It is unclear how far these factors might account for the statistical disparity in relation to older women, but lawyers and service providers interviewed suggested other factors that might also be at play. In particular, they noted that older women tend to be reluctant to invoke the legal system for problems they may experience, and might have limited access to support services that would refer clients to LAQ. Older women were described as more isolated, more controlled by long-term male partners, less experienced in managing their own financial affairs, afraid to use technology, and reluctant to look beyond the family for help. These factors lead them to be reticent to take any family law or domestic violence problems to a legal forum. For example:
In addition, it was said that police are not trained to respond to older women experiencing violence, and hence are unlikely either to provide assistance directly or to refer these women to Legal Aid. Two other factors raised by some of the older women we interviewed who had managed to apply for legal aid were transport difficulties in accessing a Legal Aid office, and lack of confidence in approaching government agencies. Although it is not necessary to attend in person to lodge a legal aid application (forms can be requested by phone and sent in by post), this may be a perception that operated as a barrier to older women applying for legal aid. In relation to the second point, an older woman noted that self-esteem diminishes with age and that for older women with little education, dealing with government agencies could be quite frightening.
The low proportion of legal aid applications from Indigenous women in relation to domestic violence contrasted sharply with the overrepresentation of Indigenous women as aggrieved parties in applications for domestic violence protection orders in Queensland courts. (3) Service providers interviewed suggested that Indigenous women do not think 'white legal aid' is for them, and may prefer to seek help within the Indigenous community. In interviews with Indigenous women refused legal aid, one woman referred to 'the shame thing', where Indigenous women are fearful of being refused or let down--the implication being that they would not apply for legal aid if they thought they were going to be refused--while another woman similarly described how many families are 'too shamed to ask' for legal aid. Moreover, Indigenous women may feel shy dealing with white people and there were suggestions that they were deterred by the lack, or perceived invisibility, of Aboriginal Liaison Officers in LAQ offices.
Yet this does not explain why Indigenous women were particularly underrepresented in legal aid applications for domestic violence matters as compared to family law matters. The existence of other domestic violence services, which may have been preferred by Indigenous women for one reason or another, may provide some explanation. In particular, in Cairns and Townsville, the North Queensland Women's Legal Service (NQWLS) is likely to have been the first port of call for women seeking advice on a range of matters,4 and they may have referred women with domestic violence issues to specialist domestic violence services, while referring women with family law problems to Legal Aid.
The Cairns and Townsville Offices of LAQ
The presence of NQWLS may certainly account for the low levels of advice given to women by the Cairns and Townsville offices of LAQ on domestic violence matters, and the low proportions of applications to those offices for domestic violence matters. In addition, 52% of protection order applications brought in the Cairns Magistrates Court were brought by police prosecutors - a higher rate of police applications than the Statewide average--which may have reduced the need for legal aid applications for these matters. By contrast, in the Townsville Magistrates Court only 32% of protection order applications were brought by police prosecutors--the lowest proportion of all the regions in the study. Townsville-based lawyers and community workers thought that women affected by domestic violence in that region tended not to be aware that solicitors could provide assistance, and transport issues in reaching a Legal Aid office were also cited. Further, some of the domestic violence applicants we interviewed identified problematic encounters with LAQ staff, who were variously described as rude, unhelpful, uncaring, patronising and 'couldn't be bothered'. Yet victims of domestic violence were often lacking in confidence and could easily be deterred by such attitudes on the part of counter staff.
The Southport Office of LAQ
The statistics further showed low proportions of legal aid applications to the Southport office for family law and anti-discrimination matters. There was a significant discrepancy between the level of legal advice on anti-discrimination matters given to women by the Southport office and the level of legal aid applications received from women by that office (6.2% State legal aid advices compared to 2.4% State legal aid applications), suggesting that women seeking advice on anti-discrimination matters may have been deterred from submitting legal aid applications in those matters. Transport difficulties in accessing the Southport office of LAQ also seem to have been a particular problem in this region.
Refusals of Legal Aid
The analysis of refusal statistics showed that:
* NESB women experienced high rates of refusal for family law and anti-discrimination law matters;
* women with a disability experienced high rates of refusal for family law and domestic violence matters;
* Indigenous women experienced high rates of refusal for domestic violence matters;
* older women experienced the highest rates of refusal of legal aid amongst all the groups studied.
In addition, the analysis of refusal files revealed that legal aid eligibility requirements (the means test, merit test and family law guidelines) did not operate uniformly, but had an adverse impact on particular kinds of cases, as well as on some of the target groups. These findings are shown in Table 2.
Older women were significantly more likely than women in the other groups to be refused legal aid by reason of the means test. The means test is based on both income and assets. Assets include the applicant's equity in the family home above a certain threshold and any other assets possessed by the applicant. Applicants who failed the means test in our file sample were most likely to do so due not to their income or home equity but to their 'other' assets--typically money in the bank or an interest in a second property. Older women featured prominently in this category, with their savings, including lump sum pension payments which are intended to operate in lieu of income, putting them over the means threshold. Lawyers and community workers identified older women as being disadvantaged by the means test. One service provider called for 'a bit more flexibility with guidelines with women with some finance'. And one of the older women we interviewed noted that she had been refused legal aid on the basis of her small savings (under $3000). Her husband had not supported her in years, and she asked 'Why should I pay for legal representation [for her family law matter] in that situation? Solicitors' fees are so high. I worked hard. I got a letter. They said "no" and that was it.'
NESB women also had relatively high rates of refusal based on the means test. In these cases, the woman's 'other assets' appear often to have been a putative legal interest in a second property, to which they had no access in reality. This lack of access was exacerbated by the fact that under the prevailing Commonwealth family law guidelines, it was extremely difficult to obtain legal aid to achieve a property settlement. Indeed, 14% of refusals based on the Commonwealth guidelines in family law were due to the applicant not meeting the extremely stringent criteria to be granted aid for a property settlement.
Another Commonwealth guideline specified that no aid was available for a resident parent denying their former partner contact with the children, unless they could produce independent evidence of a good reason for doing so. Over one third of family law applications by NESB women were refused on the basis of this guideline--a far higher proportion than for other groups. This might have reflected particular difficulties experienced by NESB women in applying for grants of aid. NESB women reported language difficulties in understanding the advice given to them and in completing the legal aid application form, and grants officers also specifically noted that NESB women often did not know or understand the information they were required to provide, had difficulty accessing interpreters to complete the application form, and were unable clearly to articulate their cases. This would seem to result in particular susceptibility to failure in complying with a guideline requiring the provision of good reasons and independent evidence for the denial of contact. Together, the means test and guidelines might help to account for the high rate of refusals of NESB women's applications in family law. It is not clear, however, why NESB women also experienced a high rate of refusal for anti-discrimination law, but not for domestic violence matters.
Women with a Disability
Women with a disability were the group least likely to have had expert assistance in completing their legal aid application (29%, compared with e.g. 50% for older women, 34% overall). Yet completion of an application without assistance was a strong predictor of the application being refused. Grants officers noted that unassisted applications were characterised by the provision of insufficient information, including details of the legal problem, financial information, and supporting documentation. Although the grants officer could contact the applicant to ask for further information, one of the key performance indicators (KPIs) for grants officers was to decide applications within 5 working days. This would be difficult to achieve if the grants officer had to wait for further information to be supplied. As a consequence, a practice had developed of refusing the application, but indicating that it would be considered further on the provision of additional information. In the majority of cases in our file sample in which this occurred, however, the applicant took the refusal at face value and did not supply any further information.
As well as completing their legal aid applications unassisted, women with a disability also appeared to experience particular difficulties with the application process. Service providers noted that it is difficult for women with an intellectual disability to articulate their case in a way that demonstrates its merit, and some of the women interviewed corroborated this point. One woman who suffered from Attention Deficit Disorder described her need for time to help her organise what she wanted to say and express it so that 'I sound as though I'm credible'. Two women with mental health conditions acknowledged that their mental health had impaired their ability to make a legal aid application, even with assistance. These factors might provide some explanation for the high rates of refusal experienced by women with a disability for family law and domestic violence matters, although they do not explain why the same did not appear to apply in relation to anti-discrimination matters (although the numbers involved in the latter category were very small).
There was no obvious explanation as to why Indigenous women experienced relatively high refusal rates for domestic violence but not for other matters, other than a possible effect of local decision-making practices at different regional offices. Indigenous women were refused legal aid for domestic violence at a high rate in the Toowoomba (36%), Townsville (38%) and especially the Cairns (48%) offices of LAQ, compared to a much lower refusal rate (11%) in Brisbane.
Seventy percent of the family law applications were refused on the basis of the Commonwealth family law guidelines, and the most frequently used guidelines were those which stated that aid would not be granted when there was 'no substantial issue in dispute' or 'no substantial dispute about residence'. The requirement for a 'substantial dispute' had a particularly adverse impact on women seeking court orders to formalise parenting arrangements in a context in which they did not trust the other party to abide by informal arrangements. As Rendell et al. (2002: 70) have observed:
The grants officers we interviewed said that what constitutes a 'substantial dispute' is decided on a case by case basis, but the two most common examples given of disputes lacking in substance were applications to formalise informal arrangements, and minor conflicts or 'bickering' (such as where the child goes to school, travel arrangements and drop-off locations). Two grants officers noted that while applicants might see their dispute as substantial, the grants officer has to take a different perspective in making the decision whether to grant aid, taking into account the issue of finite funding.
The merit test also had a particular operation in family law cases. Aid would be refused on the basis of merit if it was considered that the applicant's case had 'no reasonable prospects of success', or if, 'on the information provided, the benefit/detriment [the applicant] might gain/suffer if legal aid were/not provided could not justify the legal costs involved, having regard to other demands for legal aid on the office'. The first element of the merit test was often deployed where a Family Report had been written that was adverse to the applicant's case. Family Reports are commissioned by the Family Court or Federal Magistrates Court in difficult parenting cases, and are written either by one of the Family Court's in-house consultants, or by an external expert, based on observations of and interviews with the parties, their children and possibly other family members. For the purpose of court proceedings, the Family Report constitutes independent evidence about the family dynamic and recommended future arrangements, which is given considerable weight, but is also open to contestation by the parties. For the purpose of Legal Aid, however, a Family Report could be taken as a conclusive indication of the likely outcome of the case, and used to deny aid on the basis of merit, thus depriving the applicant of her ability to challenge the report in court. The second element of the merit test was used in particular to deny aid to women responding to contact applications made by their former partners. While the applicant's case may have been considered to have reasonable prospects of success, nevertheless, her concern to limit contact or to protect herself and her children from unworkable and disruptive contact arrangements (often in the context of a history of violence, as noted above) was considered to be relatively unimportant in the overall scheme of things, and therefore not deserving of funding.
Further, because the guidelines and merit test were clearly open to interpretation, they could be used flexibly to deal with budgetary fluctuations, or what was colloquially known as 'turning the tap on and off'. Grants officers received monthly updates indicating the budget position of their office compared to the State as a whole, as well as irregular directives requiring spending to be increased or decreased. They noted that both the 'benefit/detriment' clause, and especially the 'substantial dispute' clause, would be interpreted strictly if money was tight and more generously if they were tracking under budget. The result of this practice was the creation of systemic inconsistencies and inequities in grants decision-making between offices and over time.
In domestic violence cases, the benefit/detriment refusal clause was used most often to deny aid to women responding to an application for a protection order by their (former) partner (64% of such refusals, compared to 36% of refusals where the woman was the applicant for a protection order). The general attitude was that having a protection order made against her would do the woman no harm and therefore it was not worth funding her to defend the application. But this ignored the fact that in many cases, the application was being made by a perpetrator of violence in a further attempt to exercise power and control over his (former) partner. If the woman already had a protection order in her favour, or had been subjected to violence, then it was important for her safety and wellbeing to resist the application. When both parties have orders, it is more difficult for the woman to have her order enforced, as the police are more likely to see her as an aggressor or as 'equally violent' rather than as someone in need of protection, and she is vulnerable to further harassment by means of allegations that she has breached the order. Without the capacity to defend the application, the woman would be deprived of the ability to shift the relations of power in which she was embedded and to secure her own safety and autonomy.
What Happened to Women Refused Legal Aid?
Refusals of legal aid need not ultimately operate to the disadvantage of women if they are able successfully to appeal against the refusal, or if they are able to have their matter addressed satisfactorily regardless of the lack of aid for legal representation. Accordingly, we were concerned to discover in our analysis of files and in our interviews with women refused legal aid what had occurred after the refusal.
The Refusal and Appeal Process
One striking finding was that over 60% of the women refused legal aid did not understand the reason why they were refused. Refusal letters were written in technical and forbidding language and women found these letters difficult or impossible to understand (as did the researchers!). In addition, the file sample demonstrated a low rate of appeals against refusals of aid (15%), especially for domestic violence applications (7%). LAQ tended to take the view that women simply chose not to appeal. Our interviews suggested a range of other reasons, including lack of faith in the appeal system, lack of knowledge about the appeal process, lack of time, and lack of emotional capacity to deal with the matter further. Older women, NESB women and women with a disability were also inclined to accept the decision as an authoritative one which they would not question. The refusal letter did not clearly explain the appeal process and positively discouraged appeals. Service providers also noted that women needed assistance to prepare appeals (as well as to prepare applications in the first place), particularly those with literacy or language problems who could not write letters. They also needed to be given sufficient time to get an appeal together.
How the Immediate Matter was Dealt With
Among the women refused legal aid whom we interviewed, 39% went on to handle their matter alone, 28% paid for a lawyer, and 22% did not pursue the matter. NESB women were most likely to handle their matter alone (54%), while older women (50%) and anti-discrimination complainants (56%) were most likely to pay for a lawyer. Indigenous women were least likely to pay for a lawyer (10%) and most likely not to pursue their matter further (48%). Not pursuing the matter often has negative consequences as problems persist or are exacerbated. Service providers commented that women who chose not to pursue their matters after being refused legal aid often returned at a later date with their problems having become worse. Not pursuing the matter is also not an option for women who are responding to court applications brought against them, who have to keep going as best they can. Women who handled their matter alone often drew upon other forms of assistance in a piecemeal way from wherever they could find it. Most of the lawyers interviewed offered 'unbundled' or reduced fee services for women who did not have legal aid but could not afford full representation.
The ultimate outcomes achieved by the women interviewed depended on a number of variables, including type of matter, financial resources, emotional wellbeing, and their ability to self-represent. Overall, however, the outcomes were not encouraging. In around one quarter of the family law cases the matter was still ongoing. Among those whose matters had finalised, the majority received a negative outcome. This included all of the anti-discrimination complainants. Only around one third of the women interviewed achieved a positive outcome--this occurred particularly in domestic violence matters (61%) and when the woman paid for a lawyer to represent her (56%). When discussing their outcomes, however, a number of women identified downsides of the positive outcomes they received, such as the long-term financial burden of having paid for their own lawyer.
Of the various factors associated with positive and negative outcomes, regression analysis showed that the most prominent predictor of achieving a positive outcome was to pay for legal representation, while the most prominent predictor of achieving a negative outcome was to have a family law matter. This underlines the value of legal representation in these cases. The fact that women were able to achieve more positive outcomes in domestic violence than in family law matters is likely to reflect the quicker court process and lower cost of representation for domestic violence protection orders, and also suggests that other court support services (such as police prosecutors or domestic violence support workers) may assist women to achieve positive outcomes in their domestic violence matters. Rather than refusing legal aid and leaving women to sort things out for themselves, therefore, LAQ could liaise more closely with these services to ensure adequate coverage of domestic violence matters and the strategic deployment of legal aid funds.
Returns to LAQ
Finally, one of our most striking findings from the refusal files was the fact that a very high proportion of applicants (87%) had had other dealings with LAQ prior or subsequent to the matter for which they were refused legal aid in our file sample--whether in the form of seeking legal advice, or making other applications for legal aid, or both. Neither were these trivial histories: the women in the file sample had an average of 4.2 previous dealings and 2.2 subsequent dealings with LAQ. These histories involved family law matters in 93% of cases, and civil law matters in 53% of cases. The civil law matters included a wide range of issues such as crimes compensation, debt, motor vehicle accidents, employment issues and wills. However, two thirds of the previous or subsequent civil matters involved domestic violence. Most notably, all of the NESB women whose files we read had a history of seeking legal advice and/or applying for aid for family law matters, and almost all (92%) had a history in relation to domestic violence.
It was interesting to note that a small majority of previous (57%) and subsequent (53%) applications to LAQ were successful. Success rates also tended to increase rather than decrease with the number of applications. Repeated applications may therefore be a result of encouragement due to previous success rather than repeated, unsuccessful attempts to gain legal aid. If applicants were successful on previous occasions, that might well increase their confusion and incomprehension at being refused on another occasion. A pattern of success and refusals at different times may be indicative of variations in the availability of funds at different times--'turning the tap on and off'--as discussed above. In any event, however, it was clear that when these women had been successful in obtaining grants of aid, those grants had not been sufficient to resolve their legal problems, hence their repeated returns to seek further advice and make further applications. Legal aid appears to have been doled out in small parcels in a way that might have responded to the immediate issues raised, but that failed to address the totality of the applicant's situation.
The observed pattern of repeated returns was consistent with the findings of the 'legal needs' studies noted earlier. These studies have identified a frequently occurring cluster of problems around family law and domestic violence. Problems in this cluster tend to last for longer than other problem types before being resolved (Genn 1999: 63; Pleasence et al. 2004: 37-40; Pleasence et al. 2006: 66-70; Coumarelos et al. 2006: 77-78). Our research suggests that NESB women are especially vulnerable to this problem cluster (as noted above, 100% of the NESB women refused legal aid in our file sample had a history of dealings with LAQ in relation to family law, and 92% had a history of dealings in relation to domestic violence). The research also suggests that this problem cluster may be more generally associated with further problems of lack of access to legal aid (hence the prominence of legal aid histories in relation to family law and domestic violence in our file sample). Legal problems concerning domestic violence and family law may thus both be associated with other forms of social exclusion, and themselves create exclusion, in a specifically gendered way.
It was also clear that LAQ was not alert to either the existence or the implications of these patterns of engagement with its clients. When people sought advice from LAQ or applied for legal aid, their history was checked only to the extent that it was 'relevant', which for most grants officers was confined to previous files dealing with the same type of matter. Only one of the grants officers interviewed considered family law and domestic violence issues to be relevant to each other. And when an applicant's history was checked, it was with an eye to factors such as how long the matter had been going, the cost so far, whether the same dispute had been raised previously and when the most recent orders had been made, with the aim of weeding out unmeritorious applications. There was no notion that repeated advice-seeking and applications might indicate that the applicant was experiencing some kind of major problem, or that the legal aid system might be failing these applicants. At the time of the research, there was a proposal to establish a new civil law scheme to assist vulnerable clients, identified as those experiencing multiple problems associated with domestic violence. But the proposed assistance was to consist only of advice, 'minor assistance' (help with filling out forms, writing letters, etc), and referrals to other support services. Such assistance would be unlikely to resolve the client's legal problems or prevent them from escalating. By contrast, the UK legal needs studies clearly identify the need for coordinated services and early preventative action so that problems are not dealt with in isolation and do not escalate (Pleasence et al. 2004: 105; Pleasence et al. 2006: 155). The recent Strategic Framework for Access to Justice makes similar points (Access to Justice Taskforce 2009: 63-64), and proposes that all elements of the justice system, including legal aid agencies, have 'a responsibility to assess the needs of the individual case, [and] what the best pathway is...and a commitment to help the person get to that destination' (Access to Justice Taskforce 2009: 66).
Conclusion: Targeting Social Inclusion?
It can be seen from the above analysis that many of LAQ's policies and practices contributed to the further exclusion and marginalisation of women already experiencing social exclusion due to their lack of material resources, their socio-cultural locations, and/or their gendered subordination as targets of domestic violence and primary carers of children. The inaccessibility or refusal of legal aid reproduced and exacerbated the relations of power and control limiting these women's ability to determine the direction of their own lives.
At the time of our study, LAQ's operating model was based firmly within the New Public Management (NPM) paradigm. NPM became the dominant philosophy of public administration during the 1990s and 2000s, and is associated with (among other things), the articulation of goals, targets and performance measures as indicators of success, the allocation of resources linked to outputs, emphasis on private sector styles of management practice, and stress on discipline and parsimony in resource use (Halligan 1993: 22). Thus, for example, LAQ's activities were 'solution oriented', standardised, cost efficient, and governed by targets and KPIs. One side effect of the KPIs was noted above--the fact that grants officers began to refuse applications rather than seek further information from applicants in order to keep within the specified time-frame for decision-making. More recently, there has been some suggestion that Legal Aid Commissions should adopt new targets and performance indicators to ensure their activities are directed towards the achievement of social inclusion. We have grave doubts, however, as to the capacity of the tools of NPM to effect social inclusion.
First, as the foregoing discussion makes clear, NPM strategies are just as likely to produce social exclusion and/or to render it invisible as to remedy it. In particular, the processes of exclusion and marginalisation identified in our study were complex and multifaceted, and were only revealed by in-depth research, not by LAQ's regular monitoring regime. This suggests that processes of inclusion will need to be correspondingly complex and multifaceted, which means they may not be efficient or inexpensive (e.g. Frieberg 2005: 18), and are unlikely to be susceptible to simple quantitative measurement in the form of targets and KPIs. This is illustrated, for example, in recent changes to the means test introduced by LAQ, which respond to some of the problems for older women and NESB women identified in our study. These new guidelines depart from the standardised assessment of means by defining a series of 'special circumstances' which trigger discretionary decision-making by a senior officer. (5)
Secondly, processes of inclusion are important as processes, and reducing them to a small number of measurable outputs is likely to result in distortion and goal displacement (e.g. Spigelman 2001: 752; Turner & Martin 2004). Specifically, as Sommerlad has observed in the UK context, the delivery of public services through NPM has been 'predicated on the principle of exclusion from full citizenship status of, amongst others, the welfare recipient' (Sommerlad 2001: 359). According to Sommerlad (2001: 359), 'far from being about client empowerment, the logic of NPM in the legal aid sector [in England and Wales] is to produce a market in, rather than for, clients, as the level of service judged applicable for these units of production is both standardized and set at a low level'. The applicability of this observation to LAQ is evident from the discussion above.
In this context, it is interesting to note that the government's Strategic Framework for Access to Justice, suggests the adoption of a set of 'access to justice principles' apparently derived straight from the NPM toolkit: accessibility, appropriateness, equity, efficiency and effectiveness. The principle of equity provides, in line with our argument, that 'access to the [justice] system should not be dependent on the capacity to afford private legal representation'. 'Accessibility', on the other hand, involves 'reduc[ing] the net complexity of the justice system'. 'Appropriateness' means that 'the justice system should be structured to create incentives to encourage people to resolve disputes at the most appropriate level', and 'efficiency' explains that in most cases, this should not involve resort to formal dispute resolution. Finally, 'effectiveness' is about 'deliver[ing] the best outcomes for users' (Access to Justice Taskforce 2009: 62-63). Overall, the Strategic Framework emphasises the provision of information and advice, the use of various alternative (privatised) forms of dispute resolution and building 'resilience', that is, 'equipping people with the basic skills necessary to resolve their own issues' (Access to Justice Taskforce 2009: 63-64). NPM, then, seems to be well articulated with this limited model of access to justice, with the principles of 'appropriateness' and 'efficiency' in particular steering 'users' and their 'disputes' out of the formal justice system, which in turn enables the achievement of 'equity' by obviating the need for private legal representation, rather than by the provision of state funding for it.
By contrast, when people experience discrimination, or the gendered cluster of legal problems related to domestic violence and family law, alternative/private resolution may well be inappropriate, unfair and/or coercive. In these areas, as we have shown, the capacity to invoke formal justice mechanisms with the aid of legal representation is essential to social inclusion, and the inability to obtain legal aid in order to do so compounds the experience of exclusion.
The apparent incompatibility between NPM and social inclusion may appear paradoxical, given that they are both, arguably, aspects of the neoliberal project. While the social inclusion agenda seeks to configure all citizens as active consumers of privatised/contractualised services, who exercise individual autonomy and responsibility and make limited demands on the state, NPM deals in a complementary fashion with the rationing and targeting of public services. The incompatibility, however, arises on a temporal plane. Social inclusion is conceived of as an end, with its subjects in a state of becoming. State resources and services may precisely be required as a means to that end. NPM, on the other hand, assumes that its subjects have already become self-reliant, and thus seeks to limit the availability of the very resources and services they might need to resist exclusion.
Hayes et al. (2008: 15) contend that social inclusion agendas need to focus on:
In this article we argue that the 'web of services' provided to socially excluded people in Australia must include family and civil legal aid, and that this should be accompanied by a fundamental rethink of how Legal Aid Commissions and other social justice organisations provide services, make decisions and coordinate with each other, with the gendered/intersectional subject and the promotion of her agency at the centre. This necessarily includes her ability to invoke the formal justice system to enforce her legal rights or otherwise obtain support for her efforts to combat oppressive power relations and gain control over her own life.
We gratefully acknowledge the financial and in-kind support provided by an Australian Research Council Linkage Grant, with Legal Aid Queensland as Industry Partner, for the project 'Women and Legal Aid: Identifying Disadvantage' (2003-2006). We would also like to acknowledge the contributions to the research made by our partner investigator Louise Whitaker, and research assistants Jane Bathgate and Alicia Svensson. The opinions expressed in this article, and any errors, are those of the authors alone.
Access to Justice Taskforce (2009) A Strategic Framework for Access to Justice in the Federal Civil Justice System: Report by the Access to Justice Taskforce, Attorney-General's Department, Canberra, Attorney-General's Department.
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Australian Law Reform Commission (1994) Report No. 69, Part I--Equality Before the Law-Justice for Women, Sydney, Australian Law Reform Commission.
Coumarelos, C., Wei, Z. & Zhou, A. (2006) Justice Made to Measure: New South Wales Legal Needs Survey in Disadvantaged Areas, Sydney, Law and Justice Foundation of NSW.
Crime and Misconduct Commission, Queensland (2005) Report on Domestic Violence, Brisbane, CMC.
Ferguson, H. (2003) 'Welfare, social exclusion and reflexivity: The case of child and woman protection', Journal of Social Policy, 32, 199-216.
Frieberg, A. (2005) 'Managerialism in Australian justice: RIP for KPIs?', Monash University Law Review, 31, 12-36.
Genn, H. (1999) Paths to Justice: What People Do and Think About Going to Law, Oxford, Hart Publishing.
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Hague, E., Thomas, C. & Williams, S. (2001) 'Exclusive visions? Representations of family, work and gender in the work of the British Social Exclusion Unit', Gender, Place and Culture, 8, 73-82.
Halligan, J. (1993) 'Defining a new public sector management: Australia and the international context'. In J. Guthrie (ed.) The Australian Public Sector: Pathways to Change in the 1990s, Sydney, IIR Publications.
Hayes, A., Gray, M. & Edwards, B. (2008) Social Inclusion: Origins, Concepts and Key Themes, Canberra, Social Inclusion Unit, Department of Prime Minister and Cabinet.
Jackson, C. (1999) 'Social exclusion and gender: Does one size fit all?', European Journal of Development Research, 11,125-46.
Office of Legal Aid and Family Services (1994) Gender Bias in Litigation Legal Aid, Canberra, Commonwealth Attorney-General's Department.
Pleasence, P., Buck, A., Balmer, N., O'Grady, A., Genn, H. & Smith, M. (2004) Causes of Action: Civil Law and Social Justice, London, Legal Services Research Centre.
Pleasence, P., Balmer, N. & Buck, A. (2006) Causes of Action: Civil Law and Social Justice, Second Edition, Norwich, The Stationery Office.
Rendell, K., Rathus, Z. and Lynch, A., for the Abuse Free Contact Group (2002) An Unacceptable Risk: A Report on Child Contact Arrangements Where There Is Violence in the Family (rev. ed.), Brisbane, Women's Legal Service.
Senate Legal and Constitutional References Committee (2004) Legal Aid and Access to Justice, Canberra, Senate Legal and Constitutional References Committee.
Sommerlad, H. (2001) '"I've lost the plot!": An everyday story of the "political" legal aid lawyer', Journal of Law and Society, 28, 335-60.
Sommerlad, H. (2004) 'Some reflections on the relationship between citizenship, access to justice and the reform of legal aid', Journal of Law and Society, 31,345-68.
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(1) Legal aid is a means by which an individual's legal representation is paid for by the state. Legal aid schemes are administered by Legal Aid Commissions in each Australian State and Territory, with funding provided by both Commonwealth and State governments. Eligibility for legal aid is dependent upon a means test and, in many cases, also the legal merits of the case. A lawyer representing a legally aided client will usually be paid a fixed sum for the matter, which is significantly lower than the amount they would charge a private client. The State and Territory Legal Aid Commissions also operate legal advice services, which provide information about legal rights and remedies, and can also refer inquirers to lawyers or other forms of legal assistance.
(2) All interviewees gave their consent to be interviewed on condition of strict anonymity, hence no names or other identifying information are provided. Interviews with lawyers and service providers were recorded, but were not transcribed verbatim. Rather, partial transcriptions were produced, consisting of summary notes of the interviews, incorporating some of the interviewees' own words but focusing on capturing the gist of their comments. Thus, interview material presented in this article is in the form of these partial transcriptions rather than direct quotation.
(3) According to the Queensland Police Service Domestic Violence Index data, April-September 2003, Indigenous people made up 3% of the Queensland population but 23% of aggrieved parties in domestic violence order applications. Greater or lesser levels of overrepresentation were present in each of our five regions (Crime and Misconduct Commission 2005).
(4) The Aboriginal and Torres Strait Islander Women's Legal Service North Queensland is now also based in Townsville, but this was not yet in operation at the time of our study. 5 As from 1 July 2008, LAQ's 'Means test special circumstances guidelines' provide for discretionary consideration where: the applicant's assets exceed the means test limit but they are unable to access those assets; the applicant has access to a modest amount of money in the bank but taking this money into consideration when assessing financial eligibility for aid is not justified; or the applicant owns substantial non-cash assets exceeding the means test limit but has no prospects of being employed in the future.
Women who are married to veterans. A lot of services are available to the veterans but nothing for the partner of the veteran. These women need support also--often victims of domestic violence or mental health episodes. The veterans often have no control over their actions and the woman stays with him due to emotional issues--reluctance to seek help. Women who are victims of elder abuse are often not even known avoidance of any form of assistance or support is rife. Women 'hide' in the community and think they are the only one this is happening to. Can be financial, physical and emotional abuse. (2)
In practice, this guideline often works against women seeking to formalise their residence arrangements and establish a clear regime for contact. These women may be domestic violence survivors and want the safety of a residence order before providing contact, but this is not interpreted through the guidelines as a 'dispute about a substantial issue'. If the inability to obtain a residence order makes them reluctant to provide contact to the children's father, they may find themselves in a situation where he becomes eligible for legal aid because he can claim he is not having contact with his children.
delivering the multiple services required to address the multiple disadvantages experienced by the socially excluded. It is clear that placing the person in need of services at the centre for the 'web of services' is crucial and that the standard approaches to service delivery simply do not work for the most disadvantaged.
Table 1: Women's Advice Seeking and Legal Aid Applications Compared to Their Population Share Group Pop Legal Advice Sought Share Family DV Discrim Older 8.5% 1.8% 2.5% 4.9% NESB 3.7% 5.6% 10.8% 10.3% Indigenous 1.6% 4.0% 2.6% 5.6% Cairns 2.9% 1.3% 0.7% 1.4% Townsville 4.9% 1.8% 0.7% 1.2% Southport 5.3% 5.4% 5.3% 6.2% Group Legal Aid Applications Family DV Discrim Older 0.9% 1.3% 3.0% NESB 5.9% 11.6% 11.7% Indigenous 6.4% 3.7% 10.8% Cairns 2.5% 1.2% 6.3% Townsville 5.7% 2.8% 4.2% Southport 4.3% 7.3% 2.4% Table 2: Refusals of Legal Aid by Area of Law and Reasons for Refusal Group Area of Law Family DV Discrim Older 62.8% 33.3% 64.3% NESB 43.6% 20.2% 60.0% Indigenous 29.7% 23.0% 17.7% Disability 48.3% 23.4% 44.9% All 39.3% 20.3% 44.5% Group Reason for Refusal Means Merit Guidelines Older 50.0% 28.6% 50.0% NESB 35.6% 35.6% 46.7% Indigenous 14.3% 28.6% 68.6% Disability 15.6% 44.4% 48.9% All 22.7% 41.0% 52.4%
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