Jaan Murphy
|
Legal aid services: Commonwealth
funded legal services delivered by legal aid commissions.
|
|
Legal assistance services:
all of the sector-wide legal service providers, including legal aid
commissions, community legal centres, Aboriginal and Torres Strait Islander
legal services and family violence prevention legal services.
|
The Australian Government provides
funding to the states and territories for the delivery of legal
assistance services for disadvantaged Australians.[1]
Funding for legal assistance services in the 2015–16 Budget is
generally consistent with recent trends. Funding for legal aid commissions returns
to recent levels, after taking account of large (but temporary) additional
funding provided in the 2011–12 to 2013–14 budgets.[2]
It is difficult to determine the long-term trend in funding for Indigenous
legal aid, due to recent program amalgamation and name changes.
Changes to funding arrangements for
legal aid services and legal assistance services
The Australian Government provides funding to the states and
territories for the delivery of legal aid services for
disadvantaged Australians through the National
Partnership Agreement on Legal Assistance Services (National Partnership),
which was extended by one year to 30 June 2015.[3] The Government has stated
it will negotiate a new National Partnership which, in addition to
continuing to providing funding for legal aid services, will also ‘transfer
Commonwealth funding for Community Legal Centres to the states’.[4]
In 2015–16 the Australian Government will provide $250.9 million
funding for both legal aid services and legal assistance services
through the new National Partnership.[5] Whilst this is an increase
of $46.5 million from 2014–15, much of that increase appears to be attributable
to the re-direction of funding previously provided to the Attorney-General’s Department
(AGD) for community legal services to the states and territories via the new National
Partnership. These had not previously been covered by the National Partnership
agreement.[6] The forward estimates
indicate that funding will increase by a total of $6.2 million over the 2015–16
Budget levels in 2016–17, before returning in 2017–18 and 2018–19 to a funding level
similar to that provided in 2015-16.[7]
Figure 1 below shows payments for the provision of legal aid
services to states and territories between 1994–1995 and 2018–2019, noting that
the increase from 2015–16 is due in part to the expansion of the new National
Partnership agreement to include funding for community legal services.[8]
Figure 1: payments for the
provision of legal aid services to states and territories
Source: Parliamentary Library estimates (See footnote 8).
Funding appropriated to the AGD for legal aid commissions
(programme 1.4 – ‘Justice Services’) has been renamed ‘Expensive Commonwealth
Criminal Cases Fund’.[9] The decrease from 2015–16
is primarily due to a 2014–15 budget measure ‘Legal aid—withdrawal of
additional funding’.[10] However, the funding provided
in 2015–16 and over the forward estimates represents a return to levels similar
to that provided prior to the 2011–12 Budget revisions (as discussed in Budget
Review 2014-15) as the table below
demonstrates.[11]
|
(all
figures in $’000)
|
2013–14 Budget
|
2014–15
Budget
|
2015–16 Budget
|
2016–17 Forward estimate
|
2017–18 Forward estimate
|
2018–19 Forward estimate
|
|
Legal
Aid Commissions
|
2013–14
Budget
|
25,782
|
18,745
|
3,812
|
3,881
|
|
|
|
2014–15
Budget
|
22,282*
|
2,725
|
2,805
|
2,872
|
2,936
|
|
|
2015–16
Budget
|
|
7,925*
|
3,794
|
3,853
|
2,915
|
2,956
|
|
Change:
2014–15 to 2015-16
|
|
+5,200
|
+989
|
+981
|
-21
|
|
*Estimated
actual from Portfolio budget statement 2015–16: Attorney-General’s Portfolio.
[12]
In contrast to legal aid commissions, funding provided to
the AGD for community legal services (programme 1.4 – ‘Justice Services’) is
expected to drop sharply (compared with recent levels) as set out in the table
below. However, the reason for the decrease given by the Government is that
from 2015–16 ‘the majority of funding previously provided to the Department for
community legal services will be provided through national partnership
agreements with the states and territories’.[13]
|
(all
figures in $’000)
|
2013–14 Budget
|
2014–15
Budget
|
2015–16 Budget
|
2016–17 Forward estimate
|
2017–18 Forward estimate
|
2018–19 Forward estimate
|
|
Community
legal services
|
2013–14
Budget
|
39,361
|
39,543
|
40,266
|
41,001
|
|
|
|
2014–15
Budget
|
|
41,619
|
38,138
|
38,852
|
32,687
|
|
|
2015–16
Budget
|
|
42,819*
|
4,334
|
2,918
|
2,638
|
2,638
|
|
Change:
2014–15 to 2015–16
|
|
+1,200
|
-33,804
|
-35,934
|
-30,049
|
|
*estimated actual from Portfolio budget statement
2015–16: Attorney-General’s Portfolio.
[14]
Indigenous legal assistance
services
As noted in Budget
Review 2014-15, changes to some Indigenous program names, their
transfer to the Department of the Prime Minister and Cabinet, subsequent
consolidation and the lack of detail in relevant portfolio budget papers makes
assessing long-term funding trends difficult.[15]
On the basis of the similarity in the size of the funding
commitments, the Indigenous Legal Aid Policy Reform Program, funded in the 2013–14
Budget, and the Indigenous Legal Assistance Program in the 2014–15 and 2015–16 Budget
are treated as equivalent and compared in the following table:
|
(all
figures in $’000)
|
2013–14 Budget
|
2014–15
Budget
|
2015–16 Budget
|
2016–17 Forward estimate
|
2017–18 Forward estimate
|
2018–19 Forward estimate
|
|
Indigenous
Legal Assistance Program
|
2013–14
Budget
|
73,844
|
75,226
|
71,940
|
73,235
|
|
|
|
2014–15
Budget
|
|
74,311
|
66,552
|
67,599
|
68,780
|
|
|
2015–16
Budget
|
|
74,311*
|
72,387
|
73,731
|
69,303
|
69,265
|
|
Change:
2014–15 to 2015–16
|
|
0
|
+5,835
|
+6,132
|
+523
|
|
* estimated actual from Portfolio budget statement
2015–16: Attorney-General’s Portfolio.
[16]
This would tend to indicate that funding for
at least some Indigenous legal aid programs will increase slightly, compared to
previous budget trends.
Reaction from
stakeholders
The Law Council of Australia (LCA) expressed
mixed views over the 2015–16 Budget, stating that whilst the continued level of
funding for legal assistance was welcomed ‘an absence of additional legal aid
funding’ was disappointing and would ‘have an immediate impact on access to
justice’.[17] Likewise the Law Society
of Western Australia stated that whilst it welcomed the decision ‘not to make
funding cuts to Legal Aid’ it was disappointed at ‘the lack of increases
nationally’ that in its view will ‘put further pressure on Community Legal
Centres and courts’.[18] The Australian Bar
Association also expressed support for the ‘halt to legal aid funding cuts’ but
noted that it was ‘deeply concerned’ about how money will be distributed under
the new National Partnership Agreement and concluded that:
The reality is that the 2015 Budget failed to
deliver the crucial reform and long term security of funding for justice we
desperately need.[19]
In contrast, the Law Society of New South
Wales offered qualified support for the 2015–16 Budget, noting that it had
raised its concerns about the ‘under-resourcing of the legal assistance sector’
for some time, but was hopeful that ‘funds announced in the Budget indicate a
willingness by the Federal Government to ensure adequate and ongoing funding
for legal aid services more generally’.[20]
Reaction from the states and territories to the proposed
changes to the quantum of funding and the funding arrangements for community
legal services has been largely negative, with the attorneys-general from the
ACT, New South Wales, Victoria, South Australia, Queensland and Tasmania
expressing concern at the ‘significant reduction in the funding’.[21]
[1].
Australian Government, ‘National
Partnership Agreement on Legal Assistance Services’, 2010, section 14, pp.
3–4.
[2].
J Murphy, ‘Legal aid and legal assistance services’, Budget
review 2013–14, Research paper, 3, 2012–13, Parliamentary Library, Canberra,
May 2013, p. 59.
[3]. Australian
Government, Budget
measures: budget paper no. 2: 2014–15, 13 May 2014, p. 61; ‘National
Partnership Agreement on Legal Assistance Services’, op. cit., pp. 3, 7.
[4].
Australian Government, Budget
measures: budget paper no. 2: 2015–16, 12 May 2015, p. 61; Australian
Government, Federal
financial relations: budget paper no. 3: 2015–16, 12 May 2015, pp. 3,72.
[5].
Budget
paper no. 3: 2015–16, 12 May 2015, op. cit., pp. 70, 72.
[6].
Budget
paper no. 2: 2015–16, op. cit., pp. 60, 61; Australian Government, Portfolio
budget statements 2015–16: budget related paper no. 1.2: Attorney‑General's
Portfolio, May 2015, p. 30; National
Partnership Agreement on Legal Assistance Services’, op. cit., pp. 7-9.
[7] Budget
paper no. 3: 2015–16, op. cit., pp. 70, 72.
[8].
For consistency, figures for 1994-1995 to 2007-2008 were drawn from
the relevant Portfolio Budget Statements. See Australian Government, Portfolio
budget statements 1995-1996: budget related paper no. 4.1: Attorney-General's
Portfolio, p. 75. The figures for 2008-09 to 2013-14 were drawn from the
respective Final Budget Outcome papers. See Australian Government, Final
Budget Outcome 2013-2014, p. 80. Figures from 2014-15 to 2018-19 were
drawn from the respective Budget Measures paper. See Budget
paper no. 3: 2015–16, p. 72. Other sources provide figures that can
differ substantially. See: J Murphy, ‘Legal aid and legal assistance services’,
Budget
review 2013–14, op. cit., p. 61 and sources cited in footnote 184.
[9].
Budget
paper no. 2: 2015–16, op. cit., p. 61; Portfolio budget statements
2015–16, Attorney‑General's Portfolio, May 2015, op. cit., pp. 30; 31.
[10].
Australian Government, Portfolio
budget statements 2014-15: budget related paper no 1.2: Attorney-General’s
Portfolio, 12 May 2014, p. 29; Budget
paper no. 2: 2014–15, 12 May 2014, op. cit., p. 60.
[11].
For a discussion of the 2014-15 budget measure ‘Legal aid—withdrawal of
additional funding’ see: J Murphy, ‘Legal aid and legal assistance services’,
Budget
review 2014–15 op. cit., p. 115.
[12].
Australian Government, Portfolio
budget statements 2013–14: budget related paper no 1.2: Attorney-General’s
Portfolio, May 2013, p. 28; Portfolio
budget statements 2014–15, Attorney-General’s Portfolio, op.
cit., p. 29; Portfolio
budget statements 2015–16, Attorney-General's Portfolio, op. cit., p.
30.
[13].
Portfolio
budget statements 2015–16, Attorney-General's Portfolio, op. cit., pp.
19, 30.
[14].
Portfolio
budget statements 2013-14, Attorney-General’s Portfolio, op. cit., p.
28; Portfolio
budget statements 2014–15, Attorney-General’s Portfolio, op.
cit., p. 29; Portfolio
budget statements 2015-16, Attorney-General's Portfolio, op. cit., p.
30.
[15].
See: J Murphy, ‘Legal aid and legal assistance services’, Budget
review 2014–15, op. cit., p. 116 and sources cited therein.
[16].
Portfolio
budget statements 2014–15, Attorney-General’s Portfolio, op.
cit., p. 30; Portfolio
budget statements 2015–16, Attorney-General's Portfolio, op. cit., p.
33.
[17].
Law Council of Australia (LCA), Small
business changes a boon for law practices, but legal aid freeze will hurt
access to justice, media release, 13 May 2015.
[18].
Law Society of Western Australia, The
Law Society of Western Australia responds to the State and Federal budgets, media release, 15 May 2015.
[19].
Australian Bar Association (ABA), ABA
supports State & Territory calls to address inadequate legal aid ahead of
Friday meeting in Canberra with AG, media release, 20 May 2015.
[20].
Law Society of New South Wales, Budget 2015: Law
Society cautiously optimistic, media release, 13 May 2015.
[21].
Australian Broadcasting Corporation (ABC), ‘States
and territories unite again over cuts to legal aid, community legal centre
funding’, ABC website, 20 May 2015. Simon Corbell, MLA (ACT
Attorney-General), State
and Territory Attorneys-General protest funding cuts to community legal centres,
media release, 20 May 2015.
All online articles accessed May 2015.
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