Gale, Fay; Wundersitz, Joy --- "Kids & Court: The Increasing Costs of Legal Representation for Young Offenders" [1985] AboriginalLawB 47; (1985) 1(15) Aboriginal Law Bulletin 4

	Home \| Databases \| WorldLII \| Search \| Feedback Aboriginal Law Bulletin

*This analysis was made possible by the access and assistance given by the Department for Community Welfare in South Australia. it was funded by a grant from the Australian Research Grants Scheme. The guidance of Ms Rebecca Bailey. Department of Law. University of Adelaide, is also gratefully acknowledged.

The number of young people appearing before the Children's Court in South Australia on criminal matters is steadily increasing each year, while the proportion of these appearances which have legal representation is growing at an even greater rate. Moreover, comparatively more Aboriginal youths obtain legal assistance than do non-Aboriginal young offenders.

The figures used as the basis for the following discussion were taken from the computer files on youth offending maintained by the South Australian Department for Community Welfare, and cover the period between 1 July 1979 and 30 June 1983 (since the inception of the Children's Protection and Young Offenders Acts 1979). We have included only offence-related appearances in the Children's Court at which a final outcome or decision was reached. This includes initial appearances relating to a specific set of offence charges, as well as consequent hearings relating to such charges as breach of bond, reconsideration of orders and discharge of bond. In all such instances, legal representation is permitted. The figures do not include those appearances which were adjourned with no outcome or decision being reached. In addition, civil appearances involving children in need of care have been omitted, as have all appearances before Children's Aid Panels, since legal representation is not permitted in these latter cases. (In these data files appearances are not synonymous with individuals since a given individual may appear on more than one occasion).

The Incidence of Legal Representation

During the four-year period under consideration, there were 13,811 appearances before the Children's Court in South Australia relating to criminal matters. Information on Aboriginal/non-Aboriginal identity was unavailable in four of these cases. Of the remaining 13,807 appearances, Aborigines accounted for 1,948 (14.1%) of the total, which is a disproportionately high figure since Aboriginal youths make up only 1.2% of the total South Australian population aged 10 to 17 years (the specific age group covered by the Children's Protection and Young Offenders Act).

The incidence of legal representation for the four year period, as presented in Table 1, illustrates two points. First, the overall level of legal representation is relatively high; namely 49.9% of all criminal -related appearances. Second, a substantially greater proportion of Aboriginal appearances (68.9%) have legal representation than do non-Aboriginal appearances (46.7%) despite the fact that a much higher proportion of Aboriginal than non-Aboriginal youths are apprehended in country areas where legal aid services are less readily available. The differences between the two groups proved to be statistically significant (raw chi square = 327.7: df =1: sig. = 0).

The explanation for these different rates of representation probably lies in the development of the Aboriginal Legal Rights Movement, which has steadily expanded since it first began operations in South Australia in 1971. Thus, whereas it is usually assumed that Aborigines are disadvantaged generally in relation to the criminal justice system, it seems that in one area, namely the provision of legal aid, they may now actually be advantaged.

The Increase in Legal Representation

Over the last decade there has been a steady increase in the number of appearances before the Children's Court. Moreover, the proportion of these appearances which receive legal representation has also increased. In combination, these two factors have produced a steady increase in the actual number of youth appearances receiving legal representation.

These points are illustrated in Table 2 where, for simplicity's sake, the data available since the inception of the Children's Protection and Young Offenders Act 1979 have been split into two year blocks.

The overall number of appearances increased by 14.4% between the two periods, 1979-81 and 1981-83. This cannot be explained in terms of population increases. since between June 1979 and June 1983, the South Australian population aged 10 to 17 years fell from 184,460 to 181,890.

This observed increase in the overall number of appearances, coupled with an increase of 12.9% in the proportion of young offenders receiving legal representation, has meant a dramatic increase of 48.7% in the actual numbers of young offenders who are now receiving legal assistance: that is, from 2,768 appearances in 1979-81 to 4,116 appearances in 1981-83.

The comparative situation for Aboriginal and non-Aboriginal appearances overthis same time period is illustrated in Table 3.

Between 1979-81 and 1981-83, the percentage of Aboriginal and non-Aboriginal appearances which had access to legal representation rose by 11.6% and 12.4% respectively. As a result, according to the most recent figures listed In this table, almost three-quarters (73.8%) of all Aboriginal appearances and over one-half (52.6%) of all non-Aboriginal appearances coming before the Children's Court on criminal matters now have legal representation. However, although the percentage of non-Aboriginal appearances with legal representation grew at a slightly faster rate than that of Aboriginal appearances (suggesting that, if this trend continues, the current 21.1%discrepancy between the two groups will slowly diminish) nevertheless, when absolute numbers rather than percentages are analysed, the increase in legal representation is actually greater for Aboriginal than non-Aboriginal appearances.

In 1981-83, 827 Aboriginal appearances were legally represented, compared with 515 in 1979-81, an increase of 60.6%. In contrast, for the non-Aboriginal group, 2,253 appearances were legally represented in 1979-81 compared with 3.289 in 1981-83, an increase of 46.0%. These differences can be explained by the greater increase in the absolute number of Aboriginal appearances before the courts. As shown, there were 828 Aboriginal appearances i n the first two year period and 1.120 in the next two yearperiod, an increase of 35.3%. In contrast, between 1979-81, 5,611 non-Aboriginal appearances took place compared with 6,248 between 1981-83, which represents an increase of only 11.4%.

The Costs and Benefits of Increased Legal Representation

We know that virtually all representations of Aboriginal youths are undertaken by the Aboriginal Legal Rights Movement. Similarly, although it is not possible to determine from our figures what proportion of non-Aboriginal youths also receive free legal assistance, it is believed to be quite high. Consequently, the steady increase in the number of youth appearances now receiving legal representation is placing growing demands upon the various publicly funded legal aid services. This applies especially to the Aboriginal Legal Rights Movement. In turn, this means that the legal costs borne by the community at large are escalating very rapidly.

It could be argued that, as a matter of basic human rights, the criminal justice system should ensure that persons appearing before it have legal representation, thus justifying the costs involved in extending legal aid services. Yet, it could also be argued that whether or not these costs are justified depends upon the quality and effectiveness of the legal representation provided. The effectiveness of legal advice might be gauged by investigating such factors as the nature of the plea (i.e. guilty or not guilty), the severity of the penalties imposed for a given offence, or the use of the process of plea bargaining, whereby a lawyer may succeed in having a serious charge reduced in exchange for his client's agreement to plead guilty. Since an investigation of these and other related issues is beyond the scope of this present article, no evaluation can be made at this stage of the benefits orcosts accruing from the increasing availability of legal representation to young offenders in South Australia.

Table 1 Incidence of legal representation 1 July 1979 – 30 June 1983
Legal representation	Aborigines		non-Aborigines		Total
	Number	%	Number	%	Number	%
Yes	1,342	68.9	5,542	46.7	6,884	49.9
No	606	31.1	6,317	53.3	6,923	50.1
Total	1,949	100	11,859	100	13,807	100

Table 2 Increase in incidents of youth offending and legal representation: appearances before Children’s Courts for the periods of 1 July 1979 – 30 June 1981 and 1 July 1981 – 30 June 1983
Legal representation	1.7.79 – 30.6.81		1.7.81 – 30.6.83
	Number	%	Number	%
Yes	2768	43.0	4116	55.9
No	3671	57.0	3252	44.1
Total	6439	100	7368	100

Table 3 Incidence of youth offending and legal representation: a comparison between Aboriginal and non-Aboriginal appearances for the two periods, 1 July 1979 – 30 June 1981 and 1 July 1981 – 30 June 1983
Legal representation	Aborigines				non-Aborigines
	1.7.79 – 30.6.81		1.7.81 – 30.6.83		1.7.79 – 30.6.81		1.7.81 – 30.6.83
	Number	%	Number	%	Number	%	Number	%
Yes	515	62.2	827	73.8	2253	40.2	3289	52.6
No	313	37.8	293	26.2	3358	59.8	2959	47.4
Total	828	100	1120	100	5611	100	6248	100

Aboriginal Law Bulletin