SBS investigates the reality of thousands of domestic violence survivors in Australia who can’t afford lawyers’ fees.
While still recovering from controlling behaviours, as well as physical, sexual, emotional and financial abuse, survivors have to navigate complex, underfunded government legal services. Many don't understand the legal justice system, procedures and technical legal jargon.
In many cases, applications for legal aid representation by victim-survivors are knocked back, while their perpetrators are represented by the same service.
It gets worse for those who weren't born in Australia and English isn't their first language.
Why do women receive half as many Legal Aid grants as men in Australia?
New data analysis reveals that men received nearly twice as many Legal Aid grants as women between July 2020 and May 2021. Sydney University's Law Professor Simon Rice's analysis of Australia's reveals that 65 per cent of these grants went to men, 33 per cent to women and 2 per cent did not specify the gender.
Women in Australia are systematically disadvantaged because Legal Aid funding for legal representation is strongly biased towards criminal law, where males constitute the majority of defendants.
In Australia, law is broadly classified into three categories: criminal law, civil law and family law.
Whilst civil law deals with disputes between individuals or organisations, family law deals with disputes within the family and tries to assist families after separation. It usually involves litigation over children’s custody as well as the distribution of family assets.
Criminal Law is focused on dealing with cases of individuals who have broken a criminal code.
SBS, with National Legal Aid Statistics (May, 2021) Source: SBS, from National Legal Aid Statistics (May, 2021)
Australian National Legal Aid Statistics records show that in 2020-21, out of 129,605 legal aid grants, men received 83,503 grants, women 43,160, and people for whom gender criteria was not applicable received 2,942 grants.
Legal Grants given per gender in each state and territory Source: SBS, with National Legal Aid Statistics data
In principle, this test should impact women and men similarly. So why are women, including domestic violence survivors, getting half of the publicly funded Legal Aid compared to men who are perpetrators in the majority of cases?
Prioritising criminal justice affects DV survivors
The 1992 decision of the High Court in Dietrich v the Queen, determined that a lack of representation may mean that an accused in a serious criminal matter is unable to receive a fair trial. This means that in Australia an individual facing a criminal court has to be represented by a legal professional.
This principle does not apply to family law and civil law. Access to legal aid is a universal discussion and has been addressed by
A significant proportion of legal aid funds serious criminal law matters
For the 2020-21 financial year, the shows that 83,499 people received legal aid grants for criminal law matters, 42,298 for family law matters and 3,808 for civil law matters.
The 42,298 family law grants include grants for legal representation of men, women (including, but not only DV survivors) and children.
The available data doesn't estimate how many of these grants funded legal representation for women in domestic violence matters.
Legal service providers face another challenge: conflict of interest.
When it comes to family violence matters, it is not rare that legal aid solicitors represent the respondent (alleged perpetrator) in other criminal law matters, which means they cannot represent the applicant/affected family member (victim).
Australia’s legal system does not apply the Dietrich principle to family or civil law matters, meaning that an individual does not need to be represented by a legal professional before a court of law.
National Legal Aid grants. Criminal, Family and Civil Law (2020-21) Source: SBS, with National Legal Aid Statistics (May, 2021)
If a person can’t pay for a lawyer’s fees, they may be required to represent themselves before the court through a process known as self-representation.
Over the years, Australian courts have seen thousands of self-representing litigants, including domestic violence survivors, reliving their trauma as they explain their case and present evidence without the support of a lawyer.
Legal aid services can’t represent both parties, to ensure there isn’t any conflict of interest.
However, Legal Aid Victoria told SBS that women have options and they can still access other legal services when there’s a conflict of interest.
Joanna Fletcher, Executive Director, Family, Youth and Children’s Law at Victoria Legal Aid said: "Conflicts of interest do not prevent women from receiving legal representation. For family violence matters in Victoria, where our lawyers are already representing one person, the other person can be assisted by a community legal centre or private lawyer who is funded by Victoria Legal Aid. In Victoria, the majority of family violence and family law legal aid grants are for clients who are receiving free legal assistance from a private lawyer."
In these circumstances, says Ms Fletcher, they refer the victim to a community legal centre or a private practitioner to be represented.
For many women, a referral is the point of entry into a complex legal system they would have to navigate after surviving domestic violence.
Legal representation for Domestic Violence survivors still limited
Australia doesn’t have a national policy or a budget allocation to fund a universal legal safety net for families experiencing domestic violence. A victim entering the public legal assistance system needs to apply for family law legal assistance, a program that deals with all family matters.
In Australia, on average, and almost 10 women a day are hospitalised for assault injuries perpetrated by a spouse or domestic partner.
In 2017, the NSW Government noted that in 2013, out of 85 females’ suicides, 49 per cent had a recorded or apparent family violence history. Between 2008 and 2016, there were 150 cases of intimate partner homicides in NSW; 90 per cent occurred in a domestic violence context.
The Attorney-General’s Department is responsible for coordinating government policy and projects that improve access to justice. In 2009, a argued that reform is needed to provide a 'coherent and holistic approach to decision-making across the legal assistance system'.
Since then, Australia has implemented a number of legal aid projects both at national and state levels. However, none of the initiatives is about universal access across the country and all of them require meeting certain eligibility criteria.
Women’s Legal Service Victoria Acting Chief Executive Officer Helen Matthews says that a significant number of disadvantaged women who need legal assistance are still today not eligible for legal aid grants.
If somebody is experiencing family violence even in a parenting matter, that doesn’t mean they are a priority client for legal aid.
However, many other countries have been able to provide more legal support to domestic violence survivors than Australia.
Ten years ago, the noted that 45 countries have included free legal aid in their domestic violence laws. These countries vary in wealth, with some being less wealthy than Australia, but despite this, such countries are able to provide free universal access to legal aid to victims and survivors of domestic violence, according to .
China, Argentina, Montenegro, and Italy are only some examples. Argentina provides universal legal aid for domestic violence victims, regardless of their financial status. In Italy, the state is obliged to provide legal aid irrespectively of income for victims of specific categories of domestic abuse. China’s domestic violence victims have guaranteed access to legal representation, and Nepal recognises that free legal aid is a fundamental right of its citizens—even though they do not always meet the demand.
Learn more about domestic violence in Australia in SBS’s documentary series See What You Made Me Do. Stream it for free on SBS On Demand with subtitles in , , , , and .
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