The discussion in this section begins with a consideration of the state and territory legal aid commissions’ approaches to monitoring ICL quality and dealing with complaints. Consideration
Perspectives on ICL efficacy, quality and funding
is then given to concerns and complaints about ICL performance from among survey respondents. These qualitative data indicate that despite the consistently positive responses provided by judicial officers, there are concerns among even this group about the practices and performance of some ICLs. The qualitative responses from non-ICL lawyers and non-legal professional respondents provide further insights into the reasons behind some of the equivocal or negative response patterns among these professionals.
7.2.1 Legal aid commission approaches to monitoring ICL
quality
As illustrated in Chapter 2, the legal aid commission in each state and territory has responsibility for managing ICLs. There are significant differences in the approaches taken by each commission to auditing the practice of ICLs, managing quality and dealing with complaints about an ICL. The most significant of these differences is whether a commission relies on only informal feedback or has implemented a formal mechanism for quality and/or complaint management. Other differences stem from different approaches being taken in relation to managing practitioners who are inhouse legal aid ICLs compared to private panel ICLs. The following information reflects the relevant data provided by each state and territory in the Request for Information.
New South Wales
All lawyers appointed to Legal Aid NSW panels are subject to audit. Under section 52B of the
Legal Aid Commission Act 1979 (NSW), audits may be carried out with respect to:
(a) claims for payment;
(b) compliance with practice standards;
(c) compliance with the terms and conditions of a service provision agreement; (d) compliance with the Commission’s guidelines, policies and delegations; and (e) substantial or unresolved complaints concerning service delivery.
Panel lawyer audits are prioritised in accordance with the commission’s audit strategy. This audit strategy is currently under review.
Serious complaints about panel lawyers, including ICLs, are referred to the Professional Practices Branch of Legal Aid NSW. These are investigated and assessments made about whether or not the lawyer appears to have breached their panel service agreement. If so, the lawyer is referred to the Monitoring Committee, which is established under section 52A of the Legal Aid
Commission Act 1979 (NSW). The Monitoring Committee is comprised of nominees of the Law
Society of NSW and the New South Wales Bar Association who are senior members of the legal profession, and senior staff of Legal Aid NSW.
The Monitoring Committee makes recommendations to the CEO of Legal Aid NSW concerning panel lawyers who appear to have breached a service agreement. They may make the following recommendations:
(a) that the legal practitioner be removed from the panel; or
(b) that no work be assigned to the legal practitioner for a period of between 3 months and 2 years; or
(c) that no further action be taken.
Recommendations may be made subject to conditions. Panel lawyers are given reasons as well as an opportunity to make further submissions before the committee makes its recommendations, as required by the Act. The CEO of Legal Aid NSW considers these recommendations and makes the final decision. If the CEO is considering the suspension or removal of a lawyer from a panel, the lawyer is given reasons and a reasonable opportunity to be heard before the final decision is made, as required by section 51(5)(b) of the Act.
In addition to the formal audit process, Legal Aid NSW receives feedback directly from judicial officers about issues concerning ICLs, particularly where the ICL is an inhouse practitioner. Complaints about ICLs may also be made to the Legal Services Commission in NSW through the formal complaints process.
104 Australian Institute of Family Studies Chapter 7
Victoria
Victorian Legal Aid does not have a formal mechanism for auditing ICL practice. There is a formal complaints mechanism for ICLs and they are investigated pursuant to those requirements, but the commission does not independently monitor the work of practitioners on the ICL panel. At present, all private practitioners must reapply for entry to the panel when their period of membership expires, usually after five years. However, Victoria Legal Aid is understood to be instituting a new practitioner panel in August 2013 which is intended to place greater emphasis on quality and enable Victoria Legal Aid to audit files and to independently monitor the work of practitioners on the panel.
Queensland
Legal Aid Queensland appoints ICLs to the panel for a three-year term, which is subject to re- application and consideration of re-appointment at the expiry of each term. This is a contractual relationship and includes an expectation that ICLs will comply with Legal Aid Queensland’s case management standards for ICLs. There is no formal feedback arrangement in relation to specific panel members, but an array of informal mentoring arrangements have developed over time that allow a number of quality issues to be managed in a collegiate way.
Both inhouse and private practitioners on the ICL panel are subject to grants audits, which are audits against the case management standards of a certain percentage of files per practitioner over a period of time, conducted by non-lawyers.
Legal Aid Queensland also conducts quality audits in respect of matters conducted by inhouse ICLs, which are file reviews by senior practitioners with a mix of practice experience.
South Australia
The Manager of the Family Law Practice Division, Legal Services Commission of South Australia, monitors and approves all grants of legal assistance made to ICLs, either inhouse or external. This provides a quality check on the work of the ICLs. Meetings with Federal Magistrates and the Federal Magistrate’s attendance at ICL training sessions held by the commission also provide the opportunity to monitor the quality of ICLs.
Western Australia
Legal Aid WA has a formal audit program through which 10% of panel practitioners each year are audited for file compliance.
Legal Aid WA is currently considering a range of challenges associated with auditing and managing underperforming ICL practitioners, as part of a broader panel review.
The Director of the Family Law Division manages complaints about inhouse ICLs, and the Director of Client Services (who is responsible for the assignment of external grants of aid) manages complaints about ICLs on the private practitioner panel.
Tasmania
The Legal Aid Commission of Tasmania does not have a formal audit program, but the commission receives feedback on the performance of ICLs on a regular basis and raises that feedback with practitioners informally.
Complaints about an ICL may be made to the Legal Profession Board of Tasmania.
Australian Capital Territory
Legal Aid ACT is currently implementing new ICL panel arrangements. Under those new arrangements, ICLs will be required to comply with the National Guidelines and the ICL Panel Practice Standards. The commission will monitor compliance by means of standard grants monitoring processes and compliance audits, similar to those undertaken with respect to General Panel practitioners in the ACT.
Perspectives on ICL efficacy, quality and funding
Northern Territory
ICLs are required to provide regular reports for their matters. This includes a report in relation to the merit (whether there are reasonable prospects of success) of what the parties are seeking. The Northern Territory Legal Aid Commission complaints policy is followed if a party (with or without legal aid support) has a complaint in relation to an ICL. The commission also relies on the regulatory/compliance role of the Law Society of the NT.
7.2.2 Views of the overall quality of the pool of ICLs
A clear theme emerging from the open-ended survey responses of non-ICL lawyers, non-legal professionals and judicial officers was the variability in competence and approach among individual practitioners in the pool of ICLs. Comments from all respondent groups indicated that some ICL practitioners performed to a high standard, whereas the capacity of others was average or deficient. No clear patterns were evident from a geographical perspective, as small cell sizes prevent meaningful comparisons between states and territories.