Legal Aid, prosecutors and the courts are all under pressure, raising concerns about fairness, workload and the effective operation of the ACT justice system.

The ACT is facing a triple-play of financial squeezes that could threaten the efficient operation of its criminal-justice system before the financial year is out.

The first squeeze is well known. The Office of the Director of Public Prosecutions (ODPP) has been unusually public in its pleadings for funds, with its annual report and various other statements receiving megaphonic treatment with the relatively recent engagement of a media director.

While loudest, most in the Canberra legal community see the DPP’s position as easily the least worst of the public-sector players; some believe it is not even disadvantaged.

The second squeeze is far less public, but, in the view of many, including the president of the ACT Bar Association, Prue Bindon, and the chair of its criminal-law committee, Anthony Williamson, SC, far more important.

Legal Aid ACT is being starved by both its funders – the ACT and Commonwealth governments – who can of course, in the time-honoured political and bureaucratic tradition, say the responsibility is the other’s.

While the DPP has been advertising for staff, Legal Aid (LA) is within months of having to shed the practitioners who look after the most vulnerable and damaged in our community, the true measure of the civilisation of a society. Indeed, the grants currently extended to those vulnerable people will be fewer, leaving some to fend for themselves.

I’m told that, each time LA has a vacancy, it is reviewing positions with the aim of reducing staff.

“This will become critical next financial year,” says one well-placed source. “The major issue will be the necessary cutback of grants of legal assistance.”

The Aboriginal Legal Service (ALS), which operates in the ACT and across the border in NSW as well, is in the same critical-care ward.

The problem appears to be that the “forever” ACT Labor Government (which this year clocks up a quarter-century in power) views Legal Aid and the ALS not as the hard-working and committed band of litigators that they are but as an equal of Community Legal Centres (CLCs) and the Women’s Legal Centre (WLC). I understand the WLC has of the order of 50 staff, who, like those at the CLCs, rarely see the inside of a courtroom.

Ms Bindon said fee scales for criminal-law Legal Aid briefs had remained constant for the past 12 or so years, save for an “extremely modest” increase three years ago.

Factor in inflation and “there has been a demonstrable reduction”.

“The stagnation in Legal Aid rates is not the fault of the Commission itself – they do an exceptional job with the limited resources they have…” Ms Bindon said. “Most criminal barristers want to do Legal Aid work because they want to give back to the community, mindful of their moral obligations as members of a learned profession.

“Unfortunately, however, the chronic underfunding in this space has become so acute that it’s no longer a question of counsel not achieving ’top dollar’ on the briefs they take; rather, counsel loses money by accepting Legal Aid briefs.”

“The ACT Bar considers that the chronic underfunding of Legal Aid over years is adversely impacting not only barristers who seek to do Legal Aid work and the dedicated staff at Legal Aid who work tirelessly to do ‘more with less’, but the quality of justice outcomes for our community overall.”

Mr Williamson said, “Unlike ACT Policing, the ODPP, the Victims of Crime Commission and community-based organisations who are constantly getting additional funding from government, there has been no commensurate increases for the Legal Aid criminal-defence budget.

“There is no money available for experienced counsel to properly and thoroughly prepare a defence. This dramatically increases the risk of innocent people being convicted for crimes they did not commit.

“Another point of injustice in the system is the inability of an accused person who has privately funded their defence (because they do not qualify for Legal Aid) and has been acquitted at a trial in the Supreme Court to recover their legal costs.

“It often happens that an innocent person who is acquitted at trial, or has their case dropped because there is no reasonable prospect of conviction, has to personally wear a costs bill worth hundreds of thousands of dollars. The police and the Territory simply shrug their shoulders and expect them to suck it up. It is grossly unfair. These innocent people end up with a de facto fine in relation to allegations they are not guilty of.”

And the third squeeze is potentially the worst of the lot.

Any number of people with cause to have to work at the courthouse over a weekend have relayed that, on every occasion they have had to make their occasional foray in to prepare something for the week ahead, the Supreme Court’s judges are always there, always at work.

While the DPP’s case is all over LinkedIn like a mustard plaster, Chief Justice Lucy McCallum has written recently, very gently and briefly, at the very end of a contribution in the ACT Bar Bulletin, about the overwork hitting the Bench.

“With apologies for sounding twee, we’ve got to think about what we’re doing to ourselves,” Justice McCallum wrote.

“I have learned a great deal in the past four years [her time as Chief Justice] about the impact of chronic stress and overwork on mind and body. The Court is currently under-resourced, and I am acutely aware of the fact that the public sectors of the profession – the DPP, Legal Aid and Aboriginal Legal Service – are too. My instinct is always to push myself harder. I have prided myself on it. Finding the right balance between serving the needs of the justice system and looking after ourselves is hard.”

Justice Chrissa Loukas-Karlsson retired recently, telling bluntly of the taxing workload at the ceremonial sitting to honour her eight years on the ACT Bench.

While a number of Acting Justices have been deployed, we await a substantial replacement – and there are whispers around the courthouse that we may see another Judge move on in coming weeks.

Leading barrister Bernard Collaery, thorn of federal governments of both stripes and champion of Timor Leste, was the Territory’s second attorney-general. His prescription goes straight to the top.

“The Territory justice system needs overall reform,” he says.

“Uplifting the role of the Attorney-General could be a first priority. The Barr Government could become a lot more like the 1970s Don Dunstan reformative [South Australian] administration if it became the first jurisdiction in Australia to adopt the United Kingdom tradition and appoint a respected lawyer to strengthen the function of law in the Territory.

“Appointed in a non-partisan role out of Cabinet as First Law Officer of the Territory, an eminent Attorney may support the interests of justice, the rule of law and the courts without being left in a ministerial queue competing for funds that are often allocated to more ephemeral interests.

“Before the next Territory election, [Chief Minister Andrew] Barr should commit to this reform. I am sure this may attract capable non-partisan practising Territory lawyers to stand for election.”