A grant of legal aid requires passing three separate tests: means, merits, and whether the matter is one the commission funds at all. Each is applied separately, and failing any one ends the application.

The means test is the one that defines who the system is for, and it is set well below the point at which a person can afford a lawyer. That produces the sector's defining problem: a large population that is too well off for legal aid and too poor for private representation.

The scale of what sits underneath is visible in the community sector. Up to 70 per cent of people who reach a community legal centre have an income under $32,000 a year — and community legal centres are the service people use when legal aid has already said no.

One structural protection exists and it is worth naming, because it is the reason the system does not fail completely at the top of the criminal jurisdiction. Following Dietrich, a court may stay a serious criminal trial where an indigent accused is unrepresented. That is a backstop for the most serious matters and it does nothing for family law, tenancy, debt, employment or protection orders — which is where most unmet legal need actually sits.