Triennial Review of Legal Aid

Current state

Legal aid is delivered through a mixture of publicly provided services through the Public Defence Service (PDS) and contracting individually with private lawyers. 

Private legal aid lawyers are paid through fixed fees or hourly rates. Most criminal and family law cases are paid via fixed fees.  Where fixed fees may be inadequate, there is flexibility to have the fee replaced by a set number of hours instead. Legal aid fee schedules are not regularly updated. The most recent revision of fees was in 2016-2018 for criminal fixed fees.

Legal aid for the most complex and serious criminal cases, some family cases, and most civil (non-family) cases is paid on an hourly rate basis. The hourly rate depends on the type of proceedings, and the experience level of the lawyer. Hourly rates for legal aid were last increased by 12% in 2022, prior to this the last increase to these rates was in 2008. Current hourly rates range from $103-$178 an hour.

Disbursements are also available to cover costs such as office-related costs, non-lawyer costs, travel, and expert witness or specialist input.

Problem or opportunity

Legal aid lawyers have raised that they are not adequately remunerated for their work, as remuneration has not kept pace with inflation or the costs incurred for legal aid work in practice. Remuneration rates are seen as not providing a strong incentive for lawyers to continue to provide legal aid or for new lawyers to consider taking on legal aid work.[1]

Legal professional bodies and lawyers have told us that:

• Fixed fees: Some scheduled fees do not reflect the volume and effort required for the tasks they relate to. The fees are intended to cover costs for non-lawyers to assist in cases (e.g. legal executives, paralegals, and law clerks) but are insufficient to enable this.
• Disbursements: Some specific disbursement rates are seen as inadequate (e.g. travel).
• Hourly rates: more regular adjustments to rates are needed and rates for certain proceedings (for example, serious sexual violence cases) are too low.
• Administration costs: lawyers should be paid for the administrative time they spend managing legal aid cases (e.g. on ATG applications).

What we are considering

Solutions to address remuneration issues could include:

• Increases to fixed fees, such as an uplift to some or all fees, new fees for standard tasks, and/or significant redesign of the structure of fee schedules.
• Further increases to hourly rates, or targeted increases to specific rates for certain proceedings, as well as increases to hourly rates for non-lawyers.
• Fixed increases for specific disbursements (e.g. travel, office disbursements, etc).
• Changes to remuneration for the time spent on tasks related to the administration of legal aid grants such as the preparation of amendment to grant (ATG) applications.

 Initial analysis

Feedback has been received on a wide range of remuneration issues across the legal aid scheme and addressing all the issues raised would require significant additional funding.

Improving remuneration may help to improve the future availability of legal aid representation but needs to be balanced against other objectives such as ensuring the long-term financial sustainability of the scheme.

There may be a need to prioritise any additional remuneration to where it will have the greatest positive impact on lawyer availability and legal aid coverage.