Activity 3j

2. In a 2014 paper, Victoria Legal Aid (VLA) recommended that a statutory public defenders scheme be established. This would involve parliament passing legislation to create an office of dedicated, full-time criminal barristers, paid a fixed salary from public monies, who would have the task of representing criminal defendants who qualified for Legal Aid.

The VLA currently employs a small number of staff who have the capacity to represent qualifying defendants at trial, and a majority of work funded by the VLA is done by private practitioners rather than in-house. This significantly increases costs and gives the VLA less control over the quality of the work done. The costs are higher for work outsourced to the private sector. In the report, the VLA stated that some counsel who are briefed in legally aided cases do not have the required skills or experience or unnecessarily prolong trials. However, the VLA says that it “cannot exclude inappropriate counsel from legally aided trial work.”

Victoria could base a statutory public defenders scheme on similar models operating in other jurisdictions. New South Wales has a statutory public defenders scheme. Barristers are appointed through legislation and have salaries at the same level as crown prosecutors. The VLA reported that the New South Wales scheme attracts very senior barristers who appear in many legally aided trials, particularly in the Supreme Court. A similar scheme would give the VLA or another appropriate body some power over work performance. The few public defenders currently employed by the VLA receive regular advocacy training and performance reviews, and “judicial feedback about the quality of the performance of public defenders has been generally positive.”

3. Responses will vary according to the principle of justice selected.

4. Responses will vary according to the principle of justice selected.

5. The task word ‘critically examine’ requires a balanced response that points out both arguments in favour and concerns in relation to the recommended reform. An overall judgment is also required, judging the relative strengths of the arguments supported with evidence. For example, a student might argue that the recommended statutory public defenders scheme reform does have the ability to increase the achievement of the principles of justice in the criminal law system. In this case, ‘critically examining’ the extent to which the recommended reform has the ability to increase the achievement of the principles of justice overall in the criminal law system requires students to write about relevant arguments in favour and concerns in relation to the recommended reform.