By Sophie Iskander
Everyone grows up envisioning the classic “law and order” courtroom – where the innocent receive their reparations, while the guilty are punished. Underpinning this image is always a comforting assumption: everyone, regardless of who they are, stands as an equal before the law.
This image falters, however, when considering the financial barriers within an adversarial system like Australia’s, where outcomes heavily depend on the quality of legal representation that parties can afford. While Legal Aid (VLA), Community Legal Centres, and Pro-bono services exist to bridge this gap, these resources are limited in scope, chronically underfunded, and unavailable to most. Those who earn too much to qualify for VLA yet too little to afford private representation fall into what the Productivity Commission has termed, the “missing middle” – the justice gap that structurally denies the majority of the population fair access to essential legal help. [1]
I HOW MONEY AFFECTS LEGAL OUTCOMES
Wealth buys experienced lawyers, preparation time, and the capacity to obtain expert witnesses and better evidence. Money allows individuals to appeal, easily switch representation, and in civil matters, the ability to pursue multiple claims regardless of merit.
The legal system is procedurally complex. Navigating its complex rulebook costs money and those who cannot afford it are left behind.
The Civil Procedure Act 2010 (Vic) requires parties to only make honest, necessary claims to resolve disputes and avoid unnecessary delay and cost, but these protections are only as effective as the opposition’s ability to enforce them – which costs money.[2]
Less wealthy clients are forced to settle for overworked legal aid lawyers, limited case preparation, and even pressure to plead guilty to cheaply resolve matters.
This is the gap between formal equality and substantive equality. The law treats billionaires and individuals in the financial gap as equals in the courtroom – but one walks in with a silk barrister and the other walks in alone. The Charter of Human Rights and Responsibilities Act 2006 (Vic) entitles everyone to a fair hearing, [3] yet the legal system misses the mark between equality and equity.
Opposing parties must pay to respond to every step – in litigation cases the outcome is often determined by which party first exhausts its financial resources. This is litigation as financial attrition – proper on face value, but a denial of fairness cumulatively.[4] While the Vexatious Proceedings Act 2014 (Vic) allows courts to exclude vexatious litigants, this targets unrepresented serial filers, not “sophisticated” parties whose abuse hides behind volume enabled by money.[5] In Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009), the high court acknowledged the power to prevent abuse of process, but that the threshold is hard to meet when each application appears legitimate on face value.[6]
The consequences for substantive justice are stark. Research shows that well-represented parties achieve significantly better outcomes than unrepresented ones, despite comparable underlying merits. If outcomes diverge based on representation rather than facts, the system is rewarding wealth, not right. Dietrich v The Queen (1992) established that a person charged with a serious offence should not be tried without legal representation unless they choose to proceed unrepresented.[7] But McInnis v The Queen (1979) makes clear, there is no right to government-funded counsel.[8]
At its deepest, this is a rule of law problem. The rule of law holds that law governs society and applies equally to all. But when outcomes are mediated by financial resources, what is governing results is money, not law. The rule of law becomes a formal fiction masking private power. As former Federal Court judge Kevin Lindgren observed, ‘the rule of law and a strong independent judiciary are empty ideals if people cannot access the courts’, which MP Mark Dreyfus used to argue for more legal assistance funding. [9]
II LEGAL AID AND THE “JUSTICE GAP”
Legal Aid has strict eligibility thresholds, to qualify individuals must pass both an income test and an assets test, plus a merits test – cases must be likely to succeed. Depending on these thresholds, individuals are either accepted without contribution or qualify but must pay a partial contribution.[10] The specific thresholds do not appear in the act itself, but in the guidelines determined by VLA under s9,[11] which allows VLA to set and change eligibility thresholds without parliamentary scrutiny.
The assessable income threshold varies per matter type, from below $360/week to qualify regardless of matter classification, ceiling caps of $469/week for low cost matters and $540/week for medium-cost matters – less than half of median wage –[12] may still be ineligible, and no fixed upper limit for high-cost matters, where income is assessed against anticipated cost of matters themselves.[13]
To receive legal aid for family and immigration cases, a matter must be likely to succeed at the beginning and throughout the case, assistance may be withdrawn if this is no longer met.[14] The test also considers whether a reasonable self-represented litigant would pursue the matter – are the stakes high enough to justify the legal costs. [15]
For criminal and civil matters, Legal Aid is granted based on a merits test assessing whether the benefits to the applicant and public justify the cost, the potential harm if refused, and the likeliness of success.[16]
The merits test is where access to justice often begins to break down. Since funding depends on a case’s “prospects of success”, if someone has been poorly represented initially, their case can appear weak, reducing their chances of receiving assistance. While well-resourced litigants are positioned to present stronger claims from the outset, reinforcing systemic inequality.
Since VLA is underfunded, its model works more as rationing mechanism than a justice mechanism – it’s based around deciding whether to spend limited public funds. Justice is rationed by budget.
The cutting of funds mid-case as well is disruptive as it can suddenly leave people without representation if their income shifts slightly above the threshold – where they still can’t properly afford a lawyer.
Under current income and assets tests, only 8% of Australian households would be eligible for legal aid. Given that approximately 13% of Australians live in poverty,[17] this means legal aid is only accessible to those in the most extreme circumstances, and a significant amount of people living below the poverty line still don’t qualify. The threshold for accessibility of basic rights can quite literally sit below the poverty line.
In regards to the “missing middle”, The Productivity Commission found that “even many affluent Australians could not afford a lawyer if they had a serious legal issue” and that those refused legal aid because of means “cannot necessarily afford to engage a private lawyer” – explicitly acknowledging a justice gap.[18]
Groups likely to fall within this missing middle include elderly people, those in rural areas, women, single parents, members of the LGBTQIA+ community, children and young people, those with a disability, and migrants.[19]
The consequences are plainly visible. Community Legal Centres for instance turn away more than 160,000 people nationally and that figure only concerns court representation.[20] Funding structures have struggled to keep up with demand; the Victorian Auditor-General found that VLA’s funding is based largely on demand levels from 2008 – meaning the funding baseline hasn’t been updated in nearly two decades despite rising population and increased court caseloads.[21] Increased demand has instead resulted in VLA tightening eligibility to remain financially sustainable.
Waiting times pose another issue, VLA receives around 70,000 requests for legal assistance annually from around 530 law firms and its own staff practice. Around 50% of those requests require manual assessment by a grants team member.[22] VLA has publicly acknowledged that its ability to complete assessments has been affected by staffing shortages, leading to delays in the processing of requests.
Even targeted services, like Youth Legal are often limited to specific circumstances, leaving even many under 18-year-olds without support.
III POSSIBLE REFORMS
The most direct remedy remains the most politically resistant. The Justice on the Brink report found that an additional $484 million per year is required nationally just to meet identified demand.[23] Expanding the means test thresholds so that the missing middle can qualify requires significant Commonwealth reinvestment, particularly given the Commonwealth funds Legal Aid for family and migration matters under the National Legal Assistance Partnership.
Pro bono helps but cannot substitute for systemic funding. Justice Connect and the Law Institute of Victoria already coordinate pro bono referrals, but uptake is concentrated in major firms. A more structured model would be to mandate pro bono contributions as a contribution of government legal work, as already adopted in Western Australia, where law firms on the government legal services on the government legal panel must complete pro bono work worth 10% of their government legal fees.[24]
Reform for imbalance in civil procedures could include capped interlocutory processes in lower-value disputes, and stricter judicial case management to prevent abuse of process.
Online dispute resolution platforms have demonstrated promise for low-value civil claims. British Columbia’s Civil Resolution Tribunal offers to resolve disputes under $5,000 online without lawyers, demonstrating that meaningful, cost-effective dispute resolution is possible,[25] which VCAT’s jurisdiction could similarly implement. VLA has invested in its Digital Legal Aid Project and Help Before Court initiative, but these remain information tools rather than resolution mechanisms. Extending tribunal jurisdiction online, particularly for VCAT matters, could reduce cost and intimidation for self-represented parties, though technology access itself risks disadvantage for older, rural, or digitally excluded populations.
Australia’s public defender model is largely confined to serious criminal matters. Extending it would require a significant structural shift, but the logic is sound: a salaried public lawyer, like a public hospital doctor, removes the fee-for-service barrier entirely. Australia has resisted this step beyond the Dietrich (1992) principle, which applies only to serious criminal matters risking imprisonment. Expanding public representation into family violence, tenancy, and social security matters, where power imbalances are acute, would be a meaningful reform.
IV CONCLUSION
A system that is formally equal but substantively unequal is not justice. Money tangibly shapes legal outcomes, the VLA – and similar services – remain too restrictive to bridge the justice gap. Further, while viable reforms exist, they remain only ideas unless there is political will to implement them. Justice must be more than theoretically equal. It must be practically accessible for everyone.
[1] Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 2014) vol 2, 639 (‘Access to Justice Arrangements’).
[2] Civil Procedure Act 2010 (Vic) ss17-19, 24-25.
[3] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24.
[4] Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ in David Kennedy and William W Fisher III (eds), The Canon of American Legal Thought (Princeton University Press, 2006) 483, 514.
[5] Vexatious Proceedings Act 2014 (Vic) s 29(1).
[6] Cf Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75, [43].
[7] Dietrich v The Queen (1992) 177 CLR 292, 374 (Gaudron J).
[8] McInnis v The Queen (1979) 143 CLR 575, 579 (Barwick CJ).
[9] Mark Dreyfus, ‘Legal Assistance Services’ (Speech, Parliament House, Canberra, 1 September 2014) <https://www.markdreyfus.com/media/speeches/legal-assistance-services-mark-dreyfus-qc-mp/>.
[10] Victoria Legal Aid, Handbook for Lawyers, ch 12 ‘Means Test’, ‘Background to the means test’ <https://www.handbook.vla.vic.gov.au/12-means-test> (‘VLA Handbook ch 12’).
[11] Legal Aid Act 1978 (Vic) s 9.
[12] Australian Bureau of Statistics, Employee Earnings, August 2025 (ABS, 2025) <https://www.abs.gov.au/statistics/labour/earnings-and-working-conditions/employee-earnings/latest-release>.
[13] VLA Handbook ch 12 ‘What are our thresholds?’ (n 10).
[14] Victoria Legal Aid, Handbook for Lawyers, ch 13 ‘Commonwealth Merits Test’, ‘When does the merits test apply?’ <https://www.handbook.vla.vic.gov.au/13-commonwealth-merits-test>.
[15] Ibid.
[16] Victoria Legal Aid, Handbook for Lawyers, ch 14 ‘State Reasonableness Test and Interests of Justice Test’ <https://www.handbook.vla.vic.gov.au/14-state-reasonableness-test-and-interests-justice-test>.
[17] Impact Economics and Policy, Justice on the Brink: Stronger Legal Aid for a Better Legal System (Report, National Legal Aid, November 2023) 15 (‘Justice on the Brink’).
[18] Access to Justice Arrangements (n 1) 639.
[19] Law Council of Australia, Addressing the Legal Needs of the Missing Middle (Position Paper, November 2021) 3.
[20] Law Council of Australia, ‘45,000 People Faced Courts Alone Due to Legal Aid Crisis’ (Media Release, 16 May 2016) <https://lawcouncil.au/media/media-releases/45-000-people-faced-courts-alone-due-to-legal-aid-crisis->.
[21] Victorian Auditor-General’s Office, Access to Legal Aid (Audit Report, August 2014) <https://www.audit.vic.gov.au/report/access-legal-aid>.
[22] Victoria Legal Aid, ‘Working to Improve Grant Application Assessment Times’ (Web Page, 29 October 2024) <https://www.legalaid.vic.gov.au/working-improve-grant-application-assessment-times>.
[23]Justice on the Brink (n 18)5.
[24] Australian Pro Bono Centre, ‘Other Definitions’ (Web Page) <https://www.probonocentre.org.au/information-on-pro-bono/definition/other-definitions/#western-australian-pro-bono-legal-services-model>.
[25] Justice Services Branch (British Columbia), ‘Civil Resolution Tribunal Act’, Province of British Columbia (Web Page, 1 May 2026) <https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/resources/civil-resolution-tribunal-act>.