Triennial Review of Legal Aid

Current state

Specialist input (including specialist reports and specialist services) may be ordered by a judge or commissioned by counsel. This input is used to inform decisions made by the Court or to assist counsel to build their client’s case.

Examples of specialist reports and specialist services include:

• Forensic reports
• Medical reports
• Psychiatric/Psychologist (mental health) reports
• Restorative Justice reports
• Valuation reports
• Critique/opinion reports
• Alcohol and Drug (AOD) reports
• Private investigator (PI) input.

Where specialist input is commissioned by counsel in a legally aided client’s case, the specialist input is funded through their legal aid grant.

Problem or opportunity

The cost of specialist reports and specialist services funded through legal aid has increased significantly in recent years – including more claims/invoices and, on average, greater costs for each claim/invoice. The increasing cost of specialist input is adding to the financial pressures of the legal aid scheme.  

Between 2018/19 and 2023/24, the cost of specialist input claimed for by legal aid providers across all jurisdictions increased by 342%. This included cost increases of 356% in criminal cases, 344% in civil cases and 101% in family cases. 

While there have been increases in costs across jurisdictions, the financial pressure is largely in criminal legal aid. Approximately 86% of the spend on specialist input funded through legal aid in 2023/24 was in criminal legal aid cases, compared to 9% for civil, and 5% for family.   

It is not clear what is driving the increasing volumes and cost of specialist reports, including the dramatic increases for some reports, such as forensic reports. In part, this may reflect increasing costs in the courts more generally.  For instance, more specialist input sought by the Crown in more criminal cases is likely to result in more specialist input being sought by defence counsel to rebut the Crown’s evidence.

The volume of some reports may also be increasing due to changes relating to other reports.  For example, the decision to stop legal aid funding for cultural reports under s27 of the Sentencing Act from March 2024 may have resulted in an increase in the number of some other reports being commissioned, such as AOD reports, in which cultural issues might also be addressed.

There is a variety of practice and a lack of consistency in how specialist reports funded through legal aid are procured and presented to the court. This may indicate quality issues with some reports.

There are also questions about whether current approaches for getting relevant information before the court continue to be efficient and cost-effective. For example, in some circumstances the court may be provided with more detailed information than is needed to inform the decisions that it needs to make.

What we are considering

Changes to address the rising volumes and cost of specialist reports in legal aid cases could include:

• No longer paying for some reports/services, particularly where there may be other mechanisms for providing specialist input to the court.
• Reducing/limiting the cost of specialist reports/services by introducing set fees, maximum hourly rates, or overall payment caps for some reports.
• Introducing thresholds before some reports/services can be commissioned – for example based on the seriousness of the offence.
• Introducing an accreditation system or panels of approved report writers/service providers.
• Developing one set of rules for the procurement of specialist input (including specialist reports) for the court system generally, including legal aid cases.

Longer term, work could be undertaken to review existing mechanisms for providing specialist input to the court across all jurisdictions to assess whether alternative approaches might be more effective and cost efficient.

Initial analysis

Reducing the volume and cost of specialist reports will reduce the financial pressure on the system. However, any changes to specialist report processes need to be carefully considered for their potential impacts.  This includes considering whether any additional safeguards may be needed to ensure access to justice for legal aid clients.

Changes may also have a disproportionate impact on certain groups, particularly those that are more likely to need to access legal aid as outlined in the section on Legal aid clients in the background section above.  

Specialist reports are an independent source of expert advice and can provide vital information to inform the decisions that a judge is required to make, such as sentencing decisions in criminal cases and care of children decisions in the Family Court. Minimising or limiting the specialist advice brought before the court could have a detrimental impact on access to justice for some legal aid clients. Any changes to address the rising volumes and cost of specialist reports in legal aid cases must be balanced against the need to ensure continued access to justice and fair representation through the scheme.