A Well-Functioning Legal System
An effective, efficient and fair legal and judicial system is an essential component of the rule of law in WA. A well-functioning legal system ensures that laws are respected and the community’s legal needs met. The Law Society has identified several priority areas for improvement in relation to legal assistance funding and pro bono legal services, court facilities, an independent Judicial Commission to manage complaints against the judiciary, freedom of information system improvements and digital practice issues.
Six Priorities:
We are advocating for change in four key areas of law reform:
- A Well-Functioning Legal System
- Youth Justice Reform
- Criminal Justice Reform
- Civil Justice Reform
Additional Legal Assistance Services Funding
The Law Society supports the implementation of the recommendations of the independent review conducted by Dr Warren Mundy FRAeS FAICD (the Mundy Review) in 2024 and a legal assistance funding strategy that ensures the sector can meet community need.
Overview
In each Australian State and Territory, the legal assistance sector is jointly funded by the state/territory governments and the Australian Government. The WA Department of Justice’s Legal Assistance Strategy and Legal Assistance Action Plan are due to expire in 2025. The development of the Legal Assistance Strategy is informed by the National Legal Assistance Plan (NLAP), which was recently the subject of an independent review conducted by Dr Warren Mundy FRAeS FAICD (the Mundy Review).
The Mundy Review’s final report was released in May 2024 and makes 39 recommendations to reform NLAP and restructure the funding of Australia’s legal assistance services by the Australian, state and territory governments.1
The opportunity now presents for the incoming government to implement best practice and fit for purpose legal assistance funding informed by the Mundy Review through WA’s Legal Assistance Action Plan beyond 2025. In particular the Mundy Review recommended that the Australian, state and territory governments work in collaboration to develop a national outcomes framework for the legal assistance sector and make a commitment to increasing funding for legal services as much as is necessary to ensure the sector can respond to community need. In supporting the development of the outcomes framework, the incoming government should ensure the provision of additional funding for administration which services will need to meet ongoing reporting obligations.
The Mundy Review revealed that across all aspects of the sector, including community legal centres (CLC), family violence prevention legal services (FVPLS), Aboriginal legal services (ALS) and private practitioners accepting grants of legal aid, funding is inadequate and unsustainable. As a result, many vulnerable Australians do not have access to essential legal services.
The Mundy Review identified that services in remote, regional and rural (RRR) Australia face additional challenges recruiting and retaining staff and managing the increased cost of service delivery outside of metropolitan regions. There are parts of Australia where there are little or no legal assistance services provided for disadvantaged and vulnerable people.
To address these concerns, the Mundy Review made recommendations to improve workforce sustainability. In particular, the Mundy Review recommended that legal and non-legal staff at CLCs, FVPLSs and ALSs are paid equivalent renumeration to their Legal Aid counterparts, and that grants of legal aid to private practitioners are increased to achieve parity with court scales.
The Mundy Review acknowledged that services in RRR areas face additional funding difficulties. The cost of service delivery in RRR Western Australia is greater than in the metropolitan region, and shortfalls in funding means services are not meeting community’s legal needs. The Mundy Review recommended the funding of initiatives to increase staff recruitment and retention in RRR areas, such as a HELP debt forgiveness programme, as well as an increase in baseline funding to support the health of the legal sector in RRR areas.
The incoming government should invest in workforce strategies that support a skilled, well supported and diverse workforce in the legal assistance sector for the benefit of vulnerable Western Australians in need of legal assistance.
The Mundy Review also recommended that funding strategies address Closing the Gap priority reforms and are developed in consultation with Aboriginal and Torres Strait Islander stakeholders. The Law Society supports the implementation of the Mundy Review’s recommendations to adopt a funding strategy which recognises the self-determination of Aboriginal and Torres Strait Islander peoples.
On 6 September 2024 National Cabinet signed a Heads of Agreement for a new National Access to Justice Partnership which pleasingly increased legal assistance funding by $800 million over 5 years from 2025-26. Any increase is welcome, although this falls short of addressing the $1 billion per annum gap identified in the Mundy Review.
There is currently no separate provision for private practitioners who undertake grants of legal aid.
The Law Society looks to the incoming government to push the Australian Government for more funding and to itself commit additional state funding to the legal assistance sector to provide ongoing certainty to services, support workforce sustainability and to properly fund private practitioners, who undertake grants of legal aid.
Endnotes
1. Independent Review of the National Legal Assistance Partnership (Final report, March 2024)
Recommendation
Implement the recommendations of the Mundy Review and ensure adequate funding of legal assistance is given the highest priority.
Benefits
- Supporting enhanced access to justice for vulnerable Western Australians, in particular for Aboriginal and Torres Strait Islander people and people escaping family and domestic violence;
- Improving workforce sustainability through supporting a skilled, well supported and diverse legal assistance sector workforce; and
- Addressing the challenges faced by practitioners in rural, regional and remote areas.
Court Facilities
The Law Society advocates strongly for funding to improve court resources and infrastructure, in particular in regional courts and multi-function police facilities. If upgrades to existing courthouses cannot be made in the short term, then alternative temporary facilities should be provided in locations where courthouses presently have no waiting rooms, interview rooms, drinking water or toilets, as such amenities are critical to ensure access to justice and the proper conduct of court proceedings.
The Justice Pipeline model is an analytical tool which was developed by the WA Government to inform funding decisions for the appointment of judicial officers to courts and corrective services, by estimating the impact and cost of policy initiatives. Although the model was completed in 2019, the WA Government has not released data from the model nor completed a full and public review of court facilities in recent years.
Concerningly, there have been judicial appointments funded through the Justice Pipeline model, but there has not been a corresponding increase in funding for court infrastructure to house these judicial officers and their essential staff. The Law Society has received reports of judicial officers and staff not having access to office spaces in Perth metropolitan court buildings. As more judicial officers are appointed, the capacity of court buildings must also increase to provide adequate facilities for the people working within them.
In July 2022, the State Infrastructure Strategy (SIS) was developed by Infrastructure Western Australia to provide an overview of WA’s significant infrastructure needs and priorities.2 The SIS made three recommendations related to police, courts and corrective services. The SIS recommended that, in the medium to long term, projects such as improving the facilities of criminal and civil courts in the Perth CBD and metropolitan area, and redeveloping regional courthouses, should be considered. The WA Government has expressed its full support for these recommendations, however implementation has so far prioritised police and correctional initiatives.
Many regional court facilities lack basic amenities and are not safe environments for vulnerable people attending court for sensitive matters. Often, there are limited spaces for lawyers to take instructions and give legal advice in a private and confidential setting. This is particularly concerning when victims of family and domestic violence do not have a safe space away from perpetrators or other parties to family violence restraining orders.
Furthermore, many regional courts have limited public toilets and drinking facilities which poses a safety hazard for people attending court in regions which experience extreme heat and tropical monsoonal weather.
It would be beneficial to the public, the legal profession and the incoming government if a public review of WA court facilities is completed to ensure that issues affecting the efficiency of WA courts are identified and addressed, and to inform the preparation of a strategic plan to progress the SIS’s recommendations. There is already clear evidence that courts outside the Perth metropolitan area are failing to meet the community’s needs, however deeper analysis is required to assess the funding needs of courts throughout WA.
Endnotes
Recommendations
- Complete a comprehensive audit of court facilities and infrastructure across metropolitan and regional WA.
- Implement the recommendations of the State Infrastructure Strategy in relation to improving court infrastructure.
Benefits
- Ensuring judicial officers, court staff and legal practitioners have adequate facilities to work efficiently and safely;
- Enhancing access to justice for communities in remote, regional and rural WA; and
- Creating a safer environment for vulnerable people attending court for sensitive matters, and for practitioners working in the regions.
Establishment of State Judicial Commission
The Law Society received assurances in 2021 that a re-elected Labor government would work with the Law Society to progress the establishment of a State Judicial Commission. The Law Society will continue to call on the incoming government to implement this important reform, which will bring vital independence and transparency to the handling of complaints against the judiciary.
A Judicial Commission is an independent statutory authority established to investigate complaints regarding judicial officers and provide training and education to judicial officers.
The Law Society’s position is that a Judicial Commission is essential to the promotion of the rule of law. For many years, the Law Society has been advocating for the establishment of an independent statutory Judicial Commission in WA to investigate and manage complaints against members of the judiciary.
Public confidence in the administration of justice is fundamental to the rule of law. To ensure and promote that public confidence, it is essential that any complaints from members of the public about the competency, independence and impartiality of a judicial officer when presiding over a matter should be referred to an independent Judicial Commission for investigation.
In the absence of a Judicial Commission many commentators believe the process for dealing with complaints lacks transparency and complainants therefore cannot be confident that complaints are dealt with impartially. The Law Reform Commission of Western Australia’s August 2013 final report on Complaints Against Judiciary recommended that a Judicial Commission be established in WA.3
The concept of sanctions is not compatible with judicial independence. The Law Society’s position is that application of relevant education or counselling is an appropriate way of dealing with behaviour that falls short of that required for a finding of unfitness for/removal from office. Failure on the part of a judicial officer to ‘absorb’ that education or the repetition of the conduct in question may indicate a lack of fitness for office in respect of which a further complaint may precipitate removal.
In accordance with the Law Reform Commission of Western Australia’s 2013 recommendations, for a WA Judicial Commission to be successful it is recommended that the Judicial Commission model is based on the Judicial Commission operating in New South Wales (NSW), and the incoming government commit the resources necessary to establish a Commission secretariat of the same quality as the NSW model. The NSW Commission not only manages complaints against members of the judiciary but also helps courts to achieve consistency in sentencing and provides continuing education and training for judicial officers. The education arm of the NSW model has been found to be crucial to support and train judicial officers.
Endnotes
Recommendation
Establish a Judicial Commission in WA based on the judicial commission model operating in New South Wales.
Benefits
- Enhanced public confidence and transparency in the administration of justice;
- Assisting courts in achieving consistency in sentencing; and
- Providing continuing education and training of judicial officers to enhance their capability.
Review of Western Australia's Pro Bono Model Guidelines
The Pro Bono Model Guidelines (‘Guidelines’) were implemented in 2020 and are now overdue for review. A review will provide an opportunity to address the matters identified in the 2023 evaluation project, and to make administrative improvements to the Guidelines. This will ensure the continued leverage of pro bono assistance from legal practices that provide legal services to the WA Government for the benefit of vulnerable Western Australians.
In July 2019, Cabinet approved the introduction of a pro bono requirement as part of the WA Government’s legal services tender process, which was implemented in July 2020.4
The Pro Bono Model seeks to build strong pro bono practices within law firms that provide legal services to the government, thereby improving access to justice for individuals from marginalised and disadvantaged backgrounds. It formally acknowledges that law firms have been providing pro bono services to community legal centres (CLCs) and not-for-profit bodies for a long time and builds on these pro bono practices.
Under the Pro Bono Model, law firms providing legal services to government are required to be a signatory to the Australian Pro Bono Centre’s National Pro Bono Target and commit to undertaking pro bono work for ‘approved causes’ within WA to the value of at least 10% of the value of the firm’s government legal work. The WA Pro Bono Guidelines5 detail the reporting arrangements and obligations that apply to these law firms providing legal services to government agencies.
The Pro Bono Model has been largely successful in delivering expanded pro bono services to vulnerable community members.
The Pro Bono Model expressly requires that it be evaluated within 30 months of commencement to ascertain its effectiveness in increasing access to justice for individuals.
The Law Society and representatives from the Community Legal Sector, private law firms, Government Trading Enterprises, universities, the Independent Bar and the State Solicitors Office served on an Evaluation Working Group in 2022. An evaluation of the Pro Bono Model was required to be completed by 1 January 2023. The results of the evaluation have not been finalised or made public.
Endnotes
4. Department of Justice, Western Australian Pro Bono Services Model (1 July 2020).
5. Department of Justice, Western Australian Pro Bono Guidelines (1 July 2020).
Recommendations
- Undertake a review of the WA Pro Bono Model Guidelines; and
- Make administrative improvements to the WA Pro Bono Model Guidelines.
Benefits
- Enhancement of pathways and processes for pro bono legal services in WA;
- Ensuring continued leverage of pro bono assistance from legal practices that provide legal services to the WA Government; and
- Improved access to justice for individuals from marginalised and disadvantaged backgrounds.
Freedom of Information System Improvements
The Law Society supports the implementation of best practice recommendations from Monash University’s 2024 report ‘The Culture of Implementing Freedom of Information in Australia’6 which will improve the effective and efficient functioning of the freedom of information system in Western Australia.
In June 2024, Monash University released the Final Report from a study of FOI culture in Australia (the Report). The Report was completed in partnership with the Western Australian Office of the Information Commissioner (OIC), the Office of the Victorian Information Commissioner and the South Australian Ombudsman.7
FOI practitioners, executives and government ministers in WA, Victoria and South Australia were interviewed and surveyed as part of the Report. The Report identified major themes undermining the efficiency of FOI processes including inadequate funding for staff, risk management and a lack of understanding of or commitment to FOI principles.
According to the Report, a well-functioning and comprehensive FOI system acts as a deterrent against corruption in political systems, and empowers the public with independent access to information, enabling greater participation in the political process and supporting a healthier democratic environment.
The opportunity now presents for the WA Government to implement best practice improvements to FOI processes informed by the recommendations in the Report and taking a whole of government approach.
The Report makes 11 general recommendations, and 4 further recommendations specific to WA. The Report highlights that adequate funding for FOI processes and records management systems is critical to promoting a culture of transparency and the effective operation of FOI legislation.
The general recommendations include legislative and administrative changes to improve FOI culture and practices, including modernising terminology and procedures to reflect digital environments and systems, streamlining consultation requirements, providing realistic legislative timeframes, developing proactive release policies, and providing sector-specific (that is – the health sector, government departments, statutory agencies and local government) FOI training to enhance the capacity and capability of FOI agencies.
Endnotes
7. Monash University, The culture of implementing Freedom of Information in Australia (Final report, 18 June 2024) 111.
Recommendation
Improvements to the freedom of information system including:
- Review and reform the Freedom of Information Act (WA) to improve FOI culture and practices across state government agencies;
- Fund and update the Office of the Information Commissioner Western Australia website to be user friendly to both applicants and practitioners;
- Provide sector specific education to enhance the capacity and capability of FOI agencies to develop proactive release policies; and
- Examine how proactive release could assist sectors by releasing commonly requested documents by default.
Benefits
- Improving the efficiency of WA’s freedom of information processes (FOI);
- Fostering trust between the public and WA Government agencies; and
- Strengthening democracy through the transparent exchange of information and ensuring that governments are accountable for their actions.
Digital Practice Issues
The Law Society supports legislative reform to enable affidavits, statutory declarations and deeds to be witnessed electronically and by Audio Visual Links, which will bring WA in line with other jurisdictions and community expectations.
Under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (OAS Act), an affidavit must be sworn or affirmed in the physical presence of an authorised witness and signed by hand.
During the peak of the COVID pandemic between 2020 and 2022, the WA Government made temporary changes to the OAS Act under the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) which allowed affidavits and some other legal documents to be witnessed remotely using Audio Visual Links (AVL). This temporary amendment was highly successful in improving the accessibility of authorised witnesses, especially for people living in remote and regional areas.
Under section 9 of the Property Law Act 1969 (WA), deeds can only be executed by an individual if signed by hand in the physical presence of at least one witness. For corporations there is an additional requirement that the corporation’s seal is affixed to the deed in the presence of and attested by a person who is its clerk, secretary or other permanent officer or their deputy, and a member of its board of directors, council or other governing body. In 2023 Landgate released a consultation paper seeking feedback on proposed reforms to enable the creation and execution of documents in electronic form.8 Landgate has recommended allowing corporations to execute deeds in the same manner as Australian companies under the Corporations Act 2001, which does not require affixing a seal and allows for deeds to be executed electronically.
Endnotes
8. Landgate, Electronic Creation and Execution of Documents (Consultation Paper, 2023).
Recommendations
- Conduct a review of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) and consider the benefits of legislation in effect in Queensland and Victoria that allows affidavits and some other legal documents to be witnessed via audio-visual link (AVL); and
- Remove the requirement under the Property Law Act 1969 (WA) for corporations to execute deeds in person and allow deeds to be executed electronically.
Benefits
- Improving accessibility of witnesses for individuals in remote, regional and rural WA;
- Modernising WA legislation and bringing WA in line with other States that allow remote witnessing; and
- Creating consistency with provisions of the Corporations Act 2001 (Cth) which allow Australian companies to sign deeds electronically and remove the requirement to affix a seal.
