The Purchaser-Supplier Approach in Legal Aid

4. The Advantages Of A Mutual Interest Model

The third question in the Terms of Reference asks, based on the experience in Australia, what are the advantages of a mutual interest model? The principal advantage of the mutual interest model in Australia was that it worked. The co-operative scheme established in 1976 proved to be "reasonably effective and generally efficient" (National Legal Aid Advisory Committee 1990: 108). A national parliamentary inquiry that reviewed the Commonwealth-led changes to the federal legal aid system in 1996/97 (see 6.0 below) noted that the "partnership" approach previously taken "has been recognised as a very good model internationally and that its main failing is widely acknowledged to be simply a lack of resources" (Senate Legal and Constitutional References Committee 1997: 22-3). The "partnership" or mutual interest model was not without its critics, or beyond criticism (see 5.0 below). However widespread agreement exists that it was generally a successful experience.

Why did a mutual interest model work so well in Australia? One answer was offered in 1998-89 by NLAAC in its review of funding, providing and supplying legal aid. NLAAC favoured retention of the co-operative approach "as the basic structure of the national legal aid system", and outlined what its members believed were the five principal advantages of a mutual interest model (1990: 108; see also 1989). First, NLAAC believed a national mutual interest approach to legal aid acknowledged the different socio-legal responsibilities of Federal and State governments and "and the public interest manifested in efficient and effective legal aid programs". Secondly, it believed that a co-operative approach demonstrably worked, "a fact which ought never be underestimated". Thirdly, NLAAC considered that such an approach was consistent with "Federal government administrative policy". Fourthly, NLAAC emphasized the significance of the mutual approach. It believed the goodwill and "community of spirit" that existed in the partnership between governments, legal aid commissions, community legal centres and the private legal profession that had evolved since 1976 was a "tangible asset" in legal aid program management. Within the partnership was "a wealth of practical experience of administering legal aid programs to meet community needs". Fifthly, NLAAC considered that a co-operative approach had facilitated conflict resolution, and positive and constructive outcomes in the conflicts that inevitably arise in multi-interest public policy projects (see National Legal Aid Advisory Committee 1990: 108-110).

NLAAC's assessment cannot be considered conclusive. Its report was, to a degree, deliberately defending the legal aid status quo. By 1990 legal aid's star in the public policy constellations of the federal welfare state was well and truly fading. Federal legal aid and finance officials were becoming impatient with inadequate accountability measures in the national scheme, and access to justice, its new perspectives, and different interest groups were gaining the ascendancy. Moreover NLAAC had a narrow brief, and it was neither required to nor did investigate wider socio-political contexts of the experience of the national scheme. The existence of such contexts needs to be understood to explain the reasons why the mutual interest model worked so well. What follows is not an exhaustive or comprehensive account of the sociology or politics of the national legal aid scheme in Australia in the 1970s and 1980s. There are important published sources that would add significantly to the detail of the account below (see for example Tomsen 1992).

A central contextual factor was that for much of the life of the pre-1997 national scheme the ideological pre-conditions for a mutual interest approach to public policy were present. Until the late 1980s it was generally agreed that governments should allocate resources to increase the significance and expand the popular reach of the socio-legal institution of legal aid. It was also widely accepted that a publicly funded federal scheme of legal assistance was the appropriate instrument to do so. Legal aid reformers in the mid-1970s strongly supported such ideas (see Commission of Inquiry into Poverty 1975 (a)-(c) & (e)-(f), 1976 & 1977 (a)-(c)). So too did those seeking general reform of the social conditions of the poor (Hollingworth 1972; Commonwealth Commission of Inquiry into Poverty 1974 & 1975 (d)). These ideas of legal aid as a public project to benefit the poor were to become deeply imbedded in the national scheme.

In principle the legal profession always supported Federal involvement in legal aid (Regan & Fleming 2002). Although its perception at times was that insufficient emphasis was placed on allocating resources to legal aid services provided by private sector lawyers. Similarly there was cross-partisan political support for the principles of legal aid, and Federal participation in the organized national provision of legal aid services (see Murphy 1973; Howard 1975). Moreover until the late 1980s social democratic and conservative governments were willing to allow the national legal aid scheme and its "partners" to serve as the premier public policy instrument funding and facilitating better access to justice for poorer Australians.

The political contexts were other important factor in the success of the mutual interest model. At the mega-political level the socio-legal institution of legal aid was a key domain assumption in the omnipresent legalist/social democratic constructions of law in post-war Australian society and its legal system (see Gouldner 1973; see also Arthurs 1985). There may also be a prevailing tendency towards co-operative and reciprocal approaches to public policy in federations, at least as between central and regional governments. When the mutual model of the national scheme was established in 1976 the ideals of "co-operative federalism" were certainly influencing Commonwealth-State relations (Jones 1983).

At the micro-political level a mutual interest approach offered key actors significant benefits. Initially the plans for Federal intervention into legal aid were not based on a mutual interest model. In 1973-5 a social democratic government created a Federal legal aid office, the Australian Legal Aid Office ("ALAO"), with a national network of street-level offices to provide legal aid (Harkins 1976; Fleming & Regan 2002). This initiative was actively opposed by the Federal Opposition parties, and vigorously resisted by the law societies, bar associations and many practising lawyers. Thus, the conservative parties dismantled the ALAO and abandoned the centralised approach to federally funded legal aid when elected to office in late 1975. It may be that some within the conservative parties may have preferred to withdraw from Federal involvement in legal aid. The new government was determined to reduce Commonwealth outlays and Federal programs, and, in Australia as elsewhere, the retreat from the scale of the national post-war welfare states had begun (Jones 1983; see also Castles). It has also been suggested that some senior officers in the Commonwealth Attorney-General's Department viewed legal aid as a demeaning professional foray, and would not have been sorry to see the end of Federal involvement.

However the new Commonwealth Attorney-General was committed to legal aid in principle. He proposed to end the centralised approach to federally funded legal aid, and to abolish the ALAO. Instead he proposed to establish a new national scheme, funded by the Federal government for Commonwealth matters and people, and involving the States and Territories through the establishment of statutory legal aid commissions. This proposal was agreed to by State and Territory governments, and accepted by the interest groups, if, in some cases, begrudgingly, and was the foundation of governance in the national legal aid scheme for the next 20 years.

Thus, the adoption of a mutual interest model in Australia was a compromise. It appealed to the Federal government as a means of capping federal outlays on legal aid, of devolving responsibility for providing legal aid in Commonwealth and Federal matters to the States and Territories and was consistent with its sympathies for the law societies and the bar associations and a public interest in maintaining a healthy, self-employed, private enterprise legal profession. A mutual interest national approach to legal aid also suited other governments. The States and Territories had displayed little interest in legal aid services, with a few notable exceptions such as the establishment of Public Solicitors (or the equivalent) in the 1920s, the law society scheme in South Australia in the 1930s, and initiatives in New South Wales in 1941-3. State and Territory governments were long accustomed to minimal expenditure on both civil and criminal legal aid, and had generally not welcomed pressure from the legal profession in the 1950s and 1960s to support the law society legal aid schemes. Governments found a joint Commonwealth-State approach to legal aid very attractive. Especially given that the Commonwealth would provide the majority of the funds, and State and Territory government contributions would be calculated to include interest earned on solicitors' fidelity funds, and later trust account interest. Clearly another attraction was State and Territory governments stood to benefit politically from the establishment of legal aid agencies to serve their constituencies. As was, from a federal perspective, the prospect of a substantially Commonwealth-funded but State-administered, if not controlled, public policy project.

The compromise also suited the law societies, bar associations and lawyers in private practice. The mutual interest model ensured continued Commonwealth involvement and federal funding of legal aid. It also terminated the efforts of Federal governments to institutionalise the ALAO and dissipated fears of nationalization of the legal profession. The fact that the Commonwealth and State government agreed on the social significance of the socio-legal institution of legal aid made it likely that the legal profession would exercise considerable power in the new national legal aid scheme. The rejection of a centralised Federal approach also allayed fears about competition from salaried lawyers, and more principled concerns about safeguarding professional independence, professionalism and lawyers' occupational privileges. Moreover, as outlined in 2.0 above, the institutions and policy objectives of a mutual interest model favoured expenditure on work performed by private lawyers, and protected their interests in the legal profession.

Another reason why the mutual interest model worked so well is that it engaged the energies of the legal profession. How did this occur? The legal framework of the national scheme institutionalised the role of the legal profession in legal aid, and assigned important functions to the law societies, the bar associations and practising private lawyers (see 2.0 above). Moreover over 1976-96 the bulk of criminal defence and in-litigation services in civil law were supplied to legal aid commissions by practising private lawyers.

Legal profession engagement also occurred on a much wider front. The legal aid sector tends to accept practising lawyers self-identification as constituting "the legal profession". However a professional category the legal profession at least includes "all those formally qualified and practicing law", law students and law teachers, and, in many instances, judges (Abel 1989: 14-5). Other authoritative scholars would include all those who have professionally educated in law, and whose sense of self and work remains shaped by legal professional paradigms (Freidson 2001). It is quite credible to claim lawyer civil servants, in agencies such as the Department of Justice and FLLAD, law educated managers in legal aid agencies, lawyers employed in legal aid agencies (such as CLCs, clinics, legal aid commissions and legal aid plans) and even law educated minister of state as members of the legal profession.

These non-practitioner legal professionals participated in the mutual model as Commonwealth and State civil servants, judges chairing legal aid inquiries, CEOs of legal aid commissions, law educated managers, employed lawyers providing legal aid or serving as board members, workers and volunteers in CLCs. They helped the law societies, bar associations and their practising lawyer colleagues to constitute the mutual interest model as a miniprofessional project of the legal profession. Together they energised and colonised the national scheme and its institutions. In fact, there are parallels between the role of the Australian legal profession in legal aid in the 1970s and 1980s, and the role played by the legal profession in shaping the ideals and institutions of the modern Anglo-colonial legal systems in England in 1830s to 1870s (see Arthurs 1985).

What accounts for this level of professional engagement? One reason was the legal profession welcomed Federal funding of legal aid. It offered a solution to the chronic funding shortages faced by the semi-charitable legal aid schemes run by the State and Territory law societies. Practising lawyers were also major beneficiaries of the funds allocated in the Commonwealth- State agreements for the provision of legal aid. Those funds also paid a large part of the salaries of lawyers employed as service providers in legal aid commissions. The legal profession probably benefited more financially from expenditure in the national scheme than any other group, excluding recipients of legal aid services. This fact has often been an object of attention by the profession's critics. We need to keep in mind however that the legal profession was not the only elite occupational group in the 20th century that benefited from expenditure on public policy projects. Others such as the medical profession, university lecturers, schoolteachers, social workers and engineers also achieved significant financial gains and professional spin-offs, in projects, such as health, education and public works, funded on a much grander scale than legal aid.

Moreover legal aid funds tend to be spent on family law and criminal law, both of which rarely generate high incomes for lawyers' practices. Moreover in 1976 solicitors' practices in Australia had already begun to bifurcate into a high income, commercial/corporate hemisphere and a middle/lower income hemisphere of personal plight practice, a phenomenon that accelerated in the 1980s (Mendelsohn & Lippman 1979; see also Nelson et. al 1992). It was the latter firms that dominated service delivery in referred legal aid cases. In this context it is not insignificant that in the 1970s a healthy market existed for personal plight legal work, lawyers still controlled conveyancing, and the traditional work practices of the profession were in place (Hetherton 1978 & 1981; Weisbrot 1990; Ross 1997).

In any event the legal profession's participation in the mutual legal aid scheme was not merely a tactical or opportunistic engagement. In the post-war period the socio-legal institution of legal aid remained a central plank of the political economy of the Australian legal profession. The degree to which its members energised and colonised the national scheme was also a strategic activity. Engagement with the politics, institutions and administration of legal aid was part of the wider socio-economic project of the legal profession. We might describe this project as a professional project of market control (Abel 1988). Alternatively we might describe it underpinned by the bargain or "contract" between the legal profession and the mid-20th century modern state, in which participation in legal aid was a key element of the access quotient (Paterson 1988, 1993 & 1996; see also 8.0 below). Whichever there is a powerful case that active engagement in, if not control, of the post-war public policy project of legal aid was a socioeconomic imperative for the legal profession in the common law world.

The expansion of legal aid did not only benefit mainstream legal professionals and practising lawyers. In Australia the expansion of the higher education sector in the 1960s significantly increased the size of the legal profession, and its composition. As in other western societies this occurred in a context of other major cultural shifts. Small but politically active underbellies of new, young and radical lawyers entered the western legal professions (see Abel 1985). These lawyers were dismayed at the plight of the poor and indigenous peoples in the legal system, critical of the moral shortcomings of the legal profession and sought to develop alternative, streetlevel, community-responsive forms of legal services delivery. It was from these young lawyers that the law shop response in The Netherlands, the CLCs and Aboriginal Legal Services in Australia, the law centres in England and the clinics in Canada emerged (see Abel 1985). Hopes for new, socially conscious styles of lawyering and legal professionalism were also evident amongst the recruits to the Australian Legal Aid Office ("ALAO") in 1973-75 (see 6.0 below).

In Australia the mutual interest approach arose from the ashes of the ALAO, and a short-lived centrally funded and administered Commonwealth/Federal national approach to legal aid (see 6.0 below). These initiatives were a rallying point for radical minorities in the legal profession, as they were for liberal, reformist lawyers in the professional mainstream. The adoption of a mutual interest approach in 1976 provided little spiritual solace to these predominantly young or younger lawyers. The establishment of the legal aid commissions and a steadily expanding CLC sector did provide them with congenial, professionally fulfilling and well-paid employment, and eventually alternative career opportunities, as the legal aid commissions and CLCs were absorbed into local legal professional communities (see below; see also Abel 1985). Opportunities for absorption into the legal aid commissions and other non-mainstream law careers clearly benefited the members of dissident or critical professional minorities. It also benefited the mainstream legal profession. New jobs increased the size of the legal profession as a whole. Employment and participation in legal aid commissions and CLCs did not silence the profession's vocal critical minority. But it did co-opt them into the legal profession, as the professional mainstream in the States and Territories co-opted the legal aid commissions and CLCs as a whole. Albeit a mainstream legal profession that to some extent was itself changed as a result of the views of its own minority critics, and their participation in local professional affairs. The legal profession was thereby invigorated, and a threat to its collectivities removed.

Engagement with legal aid was also a professional imperative. Today we are familiar with the diminished resonance of social democratic ideals, and the faded glory of the modern socio-legal institutions such ideals inspired (Hobsbawm 2000; Gray 1999). It was not so 30, or even 20, years ago. In Australia in the 1970s social democratic ideals and institutions were vibrant, if not climactic. Together they rallied lawyers to their causes for reasons than can easily be forgotten in contemporary market capitalism, or else explained solely in terms of tactical advantage accruing to the legal profession. Since the early 1990s third-way politics in the English-speaking societies has seen public-private partnerships displace the social welfare state, and pro-competition policies and consumerism commodify the social regimes of modern professionalism. In the 1970s and 1980s the situation was different. Many if not a clear majority of practising lawyers in Australia had a genuine, deeply held commitment to the socio-legal institution of legal aid, probably in significantly greater numbers than today (see Commonwealth Commission of Inquiry into Poverty 1975(a) & 1977(c)). In the 1960s in particular practising lawyers had given tangible support to the law society legal aid schemes, as well as assisting "battlers", the Australian version of the deserving poor (Commonwealth Commission of Inquiry into Poverty 1977(c)). When the state harnessed the socio-legal institution of legal aid to a public policy project to assist poorer litigants and accused it was not surprising that it should mobilise their support.

There are two other reasons that help to explain the imperative nature of legal professional engagement with the mutual interest model. The first is that in the 1970s professionalism had not lost its ascendancy in modern society and government. Participation in the national legal aid scheme was a means to express the patrician-like but other regarding sense of social responsibility that the legal profession shared with other all professional occupations. Moreover the power of the professions in the 1970s was far less adumbrated than today. So to was the authority delegated by the state and the society (see Hanlon 2000; Freidson 2001. See also Australian Competition and Consumer Commission 1997). Thus, the legal profession expected to participate in legal aid. Its members probably found difficulty to conceive of a legal aid project that did not demand the participation of the legal profession.

The second reason that helps to explain the imperative nature of legal professional engagement is the access to justice response. In the 1960s, 1970s and 1980s the state, governments, social reformers, lawyers, courts and judges in societies like Canada and Australia are often said to have made concerted efforts to democratise and realise effective access to law and the legal system. In that model the post-war expansion of legal aid is seen as a "first wave" towards equal justice (see Cappelletti et. al. 1975; Cappelletti & Garth 1978). Genuinely noble if naive hopes were held by the legal profession particularly in the 1970s for the transformative power of law and its institutions (Arthurs 2001). It is not surprising that national legal aid schemes should have provided a vehicle to tangibly express such objectives.

Other factors also influenced the success of the mutual interest model in Australia. Until the mid- 1980s power in the practising legal profession was concentrated in the courts and judges, law societies, bar associations and local lawyer elites in the States and Territories (Weisbrot 1990). De-centralising the functions of funding and providing legal aid services meant that inter-actions between lawyer elites and other sites of legal professional power and State and Territory legal aid commissions were inevitable. Initially such inter-actions were sometimes fractious and tense. However the legal aid commissions and the lawyer managers/practitioners working within them quickly became part of local legal professional establishments. They also absorbed and reflected the micro-cultures of the States and Territories. Local socio-cultural differences were very evident to anyone visiting the legal aid commissions in the different States and Territories, particularly in the first 15 years of the scheme.

Professional and regional integration had disadvantages (see 6.0 below). But it also brought positive benefits. Professional and regional integration was a positive lubricant in the involvement of the legal profession in the administration of the national scheme. Professional involvement was a key feature of the Australian mutual interest experience (see above). Capital city locations placed legal aid commissions at the heart of the needs for legal aid and the sites of expertise in providing legal services and running large scale solicitors' practices in the States and Territories. Integration meant that legal aid commission managers were in touch with local legal professional politics. The managers themselves became local political actors, often to the benefit of the administration of their legal aid commission. Co-location also exposed legal aid commissions to the operation and procedural idiosyncrasies of courts and other parts of the legal system in the States and Territories. As it also did to local fee-charging and cost calculation practices, and generally the composition of local markets for legal professional services, and the economies of lawyers' practices in different law categories and jurisdictions. De-centralisation also placed legal aid commission managers in a position to be familiar with local needs for legal aid, and conversant with community groups, judges, police, schools etc.

De-centralisation and professional and regional integration also encouraged diversity. As legal institutions the State and Territory legal aid commissions were similar. As social institutions and administrative organizations/cultures they were different. Legal aid commissions, some more than others, experimented with menus of legal aid services, investing in applied research, emphasising community legal education and other preventive legal services and the provision of services in areas of special need, such as rural and remote areas and the needs of young people, particularly in early phases of the Australian experience (see Boer 1980). Any visitor to the States and Territories found distinctively different socio/professional/organization cultures in the legal aid commissions. Nevertheless the legal aid commissions had one important similarity. By the early 1980s systemic/institutional design, de-centralisation of responsibility for expenditure and supplying legal aid and professional and regional integration had combined to establish the State and Territory commissions as confident, competent and vigorous semiautonomous legal aid providers, producers and policy-makers.

These qualities worked to the great advantage of the national scheme. From the early 1980s the Commonwealth/Federal government concentrated its efforts of controlling its financial exposure. It substantially disengaged from other legal aid policy and management issues (see 5.0 below). In large part the carriage of the mutual interest project fell de facto to the State and Territory legal aid commissions, and to a far less extent, the CLCs and the organised legal profession. The legal aid commissions and their managers were the custodians of the national scheme, and the States and Territories centres of policy-making, research, cost-control and program management, for the best part of ten years, from when the Commonwealth/Federal government began to concentrate on controlling its financial exposure in the early 1980s (see above; see also 7.0) until its reengagement with the totalities of legal aid policy in the early 1990s (see 7.0). An important expression of this role was the decision to establish informal, regular meetings of the CEOs of the State and Territory commissions, known as "Director's Meetings", which evolved into National Legal Aid [9] These meetings were intended to improve co-operation amongst State and Territory legal aid commissions, develop national strategies, and generally to perform the supra-oversight role originally intended to be fulfilled by the Commonwealth/Federal government.

In assuming this role the legal aid commissions and the Director's Meetings were not devoid of self-interest. Strengthening their position vis a vis the Commonwealth/Federal government, or, as it was known colloquially, "Canberra", in the national legal aid scheme was a highly desirable objective for legal aid commissions and CEOs, as it was for local legal professions, CLCs, and State interests in Commonwealth-State relations. Nevertheless the initiatives of the legal aid commissions and Director's Meetings were invaluable. Benefits included the development of a Uniform Means Test, forum tests, co-ordination of contributions policies, exchanging of good and bad experiences in service delivery, in addition to steering the direction of the national scheme. Indeed, the Australian experience of the mutual interest model would not have been as successful if the legal aid commissions had not stepped in to fill the gap whilst the Commonwealth/Federal government was distracted by its expenditure problems.

[9] National Legal Aid represents the Directors of each of the eight State / Territory legal aid commissions in Australia.

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