Principles of Justice in Legal Aid

Principles of Justice

• Fairness
  • Open processes
  • Impartial processes
  • Participation
• Equality
  • Formal equality
  • Substantive equality
• Access
  • Ability to engage with the legal system
  • Ability to be informed

Victorian Legal Aid (VLA)

• Government funded organization
• Provides legal information, advice, and representation
• Based on applicant’s needs and financial circumstances
• Uses an income test (limited income) and means test (income, assets, and expenses)

Assisting Accused (VLA)

• Free legal information
  • Available to all community members
  • Offered in multiple languages
  • General in nature, not specific legal advice
• Free legal advice
  • Requires means test
  • Prioritized by need, for summary or indictable matters heard summarily
• Duty lawyer
  • Requires income test
  • Representation available if means test passed and a significant offence is involved, or if in special category, such as First Nations or disability
• Grant of legal assistance
  • Requires means test
  • Provides legal representation in court and preparation of documents
  • May require a contribution from the accused

Assisting Victims (VLA)

• Free legal information (eg. compensation order against accused)
  • Protection orders
  • Legal advice
• Duty lawyers
  • Day services in Magistrates Court only
  • Prioritized based on who appears on the day
• Grants of legal assistance
  • Reasonableness test applies

POJS (Principles of Justice) - VLA

• Strengths*
• Free legal information available on VLA website
• Duty lawyers and grants prioritize vulnerable individuals
• Some legal information offered in over 30 languages
• Numerous online tools
• Limitations*
• Free information may be insufficient for some individuals
• Limited resources can lead to a "missing middle" - those who do not qualify for free services, but cannot afford private representation
• Service availability depends on consistent funding, impacting eligibility
• Reliance on individuals being aware of the service

Community Legal Centres (CLCs)

• Independent organisations
• Provide information, legal advice, ongoing assistance, and legal education
• Aim to raise community awareness of rights
• Mostly staffed by volunteers

Assisting Accused (CLCs)

• Basic legal information
  • Offered through online and physical resources
• Initial legal advice
  • Provides advice and information on preliminary matters
  • Assists with writing letters and completing forms
• Legal casework
  • Specific eligibility requirements based on legal matter and availability of other assistance
  • Representation in criminal matters requiring ongoing assistance
  • Does not include indictable offences

Assisting Victims (CLCs)

• Some CLCs have specialized expertise, such as the Women’s Legal Service Victoria, which provides free legal advice and representation to women experiencing family violence
• Basic legal information
• Legal advice
• Duty lawyer services
  • For those seeking family violence protection orders or personal safety protection orders
• Ongoing casework
  • Some provide ongoing casework or assistance for victims of crime
  • This includes ongoing legal representation and assistance
  • Eligibility criteria may apply

POJS (Principles of Justice) - CLCs

• Strengths*
• Free information available on CLC websites
• Some information offered in multiple languages, with interpreter services available
• Provide information to educate the community about legal processes and rights
• Limitations*
• CLCs report insufficient funding to assist all who need legal assistance, leading to a "service gap"
• Many CLCs do not help people charged with indictable offences
• Limited staff or volunteers can lead to turning people away or reduced time allocated to complex cases

Plea Negotiations

• Pre-trial discussions between prosecution and accused
• Aims to reach an agreement before trial

Appropriateness

• Accused's willingness to cooperate
• Strength of prosecution's case and evidence
• Accused's willingness and readiness to plead guilty
• Accused's representation
• Efficiency of the process and resource utilization based on the type of case

Advantages

• More efficient process
• Allows for appeals
• Upholds the doctrine of precedent
• Meets the needs of the parties more efficiently

Limitations

• Potentially confusing for those unfamiliar with the justice system
• No automatic right to appeal
• Lower courts bound by precedents from higher courts
• Appeals can be expensive, time-consuming, and complex

Key Personnel

• Magistrates/Judges
  • Decide the outcome of the case
  • Manage case procedures
    • Ensure correct procedures are followed
    • Clarify issues for the jury
    • Make decisions on the admissibility of evidence
  • Impartial and unbiased
  • Provide directions to the jury and answer jury questions
  • Determine sentence or sanction
• Jury
  • Deliver a verdict solely based on evidence presented
  • Objective and impartial
  • Listen carefully and remember evidence
  • Understand summing up and jury directions
• Parties
  • Disclose information to the accused (prosecution)
  • Participate in trial and hearings
    • Present evidence
    • Cross-examine witnesses
    • Deliver closing addresses
  • Make submissions about sentencing (accused)

Need for Legal Practitioners

• Ensure an adequate opportunity to challenge evidence against the accused
• Prevent mistakes in determining guilt
• Unrepresented individuals lack the skills and experience to navigate the justice system and test evidence
• Representation provides objectivity, as individuals may be overly invested or emotional in the case

Costs, Time, and Cultural Differences

Costs

• Engaging a lawyer can be expensive
• VLA, CLCs, and committal hearings are measures to address costs

Time

• Court delays are common
  • Due to evidence gathering, witness location and interviews, determining events and charges
• Early guilty pleas and remote hearings are measures to address delays

Precedent

• Reversing a precedent: A superior court changes a previous precedent set by a lower court in the same case on appeal, establishing a new precedent
• Overruling a precedent: A superior court changes a previous precedent established by a lower court in a different and later case, creating a new precedent
• Distinguishing a precedent: A lower court decides that the material facts of a case are sufficiently different from a prior case with a precedent set by a superior court, so the lower court is not bound to follow it
• Disapproving a precedent: A court expresses dissatisfaction with an existing precedent, but is still bound to follow it
• Developing a precedent: A court utilizes a precedent in a new way

Factors Affecting Judicial Lawmaking

• Doctrine of Precedent:

  • Promotes consistency and predictability in legal decisions.
  • Difficulties arise in locating relevant precedents.
  • Challenges in identifying legal reasoning behind decisions.
  • Difficulty in predicting future legal developments.
  • Restricts lower courts from changing the law when bound by higher court precedents.
  • Superior court judges may be reluctant to reverse or overrule existing precedents.
  • While not bound by decisions of their own court, judges consider them highly persuasive.

• Judicial Conservatism

  • Judges believe their role is to uphold existing law, not change it.
  • Less likely to change precedents.
  • May disapprove or distinguish precedents, but reluctant to overrule them.

• Judicial Activism

  • Judges believe they have a role in ensuring common law reflects contemporary attitudes and justice.
  • More open to changing precedents.

• Relationships

  • Judicial conservatism restricts courts from making major legal changes.
  • Judges may not fully consider social and political factors when making law.

• Mabo Case:

  • Eddie Mabo claimed ownership of Murray Island.
  • High Court recognized native title and abolished terra nullius.
  • Influential for the Commonwealth Parliament, leading to the Native Title Act.

• Costs and Time:

  • Costs of legal representation and court fees.
  • Time involved in legal proceedings.

• Standing Requirement:

  • Restrictions on who can bring a case to court.

Relationship Between Courts and Parliament in Lawmaking

• Parliamentary Supremacy:

  • Parliament can confirm or abrogate court decisions (except High Court on constitutional matters).
  • Creates courts and defines their powers.
  • Determines the severity of cases that courts can hear.

• Courts' Influence on Parliament:

  • Judicial comments (obiter dicta or ratio decidendi) can inspire law reform.
  • Court decisions might highlight a problem, leading to public pressure on Parliament.
  • Judicial conservatism or activism can influence legislation by Parliament.

• Codification of Common Law:

  • Compiling common law on a specific topic into a single statute.
  • Reinforces and endorses court rulings.
  • Allows Parliament to clarify, expand, or reform an area of law.

• Abrogation of Common Law:

  • Parliament cancels existing common law by passing legislation.
  • Powers to override court decisions (excluding High Court decisions on constitutional matters).
  • Potential for unjust laws if Parliament overrides established legal principles.

This quiz covers the principles of justice, including fairness, equality, and access in the context of Victorian Legal Aid (VLA). It explores how VLA supports individuals with legal information and representation based on their needs and financial circumstances. Test your understanding of the legal framework and services provided by VLA.