Michele Brennan and Jaan Murphy
|
Legal aid services: Commonwealth
funded legal services are delivered by state and territory legal aid
commissions through the National Partnership Agreement on Legal Assistance
Services (NPALAS) and the Expensive Commonwealth Criminal Cases Fund (ECCCF).
Legal assistance services:
all of the sector-wide legal service providers, including legal aid
commissions, community legal centres (CLCs), Aboriginal and Torres Strait
Islander legal services (ATSILS) and family violence prevention legal
services.
|
Commonwealth funding for legal
assistance services
Most of the funding provided by the Australian Government to
support the delivery of legal assistance services to disadvantaged Australians
is provided through the National
Partnership Agreement on Legal Assistance Services (NPALAS). The
current NPALAS commenced on 1 July 2015 and expires on
30 June 2020.[1] Unlike its predecessor,
which only covered legal aid services, the current NPALAS also provides funding
for community legal centres (CLCs).[2]
In 2018–19 the Australian Government will provide $265.9 million
funding for legal aid services and CLCs through the NPALAS.[3]
This is an increase of $4.4 million from 2017–18. Funding will then increase by
$4.1 million in 2019–20 to $270 million. The forward estimates only
indicate funding to 2019–20 as the NPALAS is due to expire on 30 June 2020.[4]
This funding is consistent with the 2017–18 Budget, but
reflects an increase on the funding in the NPALAS as originally agreed. This is
discussed below.
The allocation of this funding between legal aid commissions
and CLCs is shown below.
Legal aid funding
Funding is provided to legal aid commissions through two
main sources—the NPALAS (through which funding is provided to
states and territories) and the Expensive Commonwealth Criminal Cases
Fund (ECCCF), which is administered by the Attorney-General’s
Department (AGD).
Figure 1 shows payments to states and territories for legal
aid commissions between 1995–96 and 2019–2020.[5] From 2015–16 the funding
reflects the current NPALAS.
Figure 1: payments for the
provision of legal aid services to states and territories,
ECCCF funding
Funding for legal aid commissions is also provided through the
ECCCF.[6] ECCCF funding will be
stable over the forward estimates period and from 2017–18 represents a return
to levels similar to that provided prior to the 2011–12 Budget revisions (as
discussed in Budget
Review 2014–15).[7] Table 1 shows ECCCF
funding over the forward estimates.[8]
Table 1: Expensive Commonwealth Criminal Cases Fund
amounts
| (all
figures in $’000) |
2016–17 Budget |
2017–18 Budget |
2018–19 Budget |
2019–20 Forward estimate |
2020–21 Forward estimate |
2021–22 Forward estimate |
| Expensive
Commonwealth Criminal Cases Fund |
2016–17
Budget |
4 610 |
3 682 |
3 733 |
3 784 |
— |
— |
| 2017–18
Budget |
4 610* |
3 675 |
3 722 |
3 769 |
3 799 |
— |
| 2018–19
Budget |
— |
3 675* |
3 722 |
3 765 |
3 799 |
3 852 |
| Change:
2017–18 to 2018–19 |
N/A |
0 |
0 |
–4 |
0 |
N/A |
*Estimated actual from relevant Portfolio budget statements.
Source: as per footnote 8.
Community legal centre funding
The Australian Government provides funding for CLCs through
the NPALAS and the ‘Justice Services’ program in
the AGD.
As discussed above, the current NPALAS includes funding for
CLCs. This means that from 2015–16 the majority of funding for CLCs will be
provided through the NPALAS. Prior to this, the majority of CLC funding was
provided through the AGD.[9]
Under the NPALAS as originally agreed, over
the three years 2017–18 to 2019–20, CLC funding would have been $30.6 million
less than if funding was maintained at 2016–17 Budget levels.[10]
On 24 April 2017, the Government announced an additional $39
million for CLCs to be delivered through the NPALAS.[11]
This additional funding was reflected in the 2017–18 Budget and may be
regarded as largely representing a reversal of the forecast $30.6 million
reduction, with a modest additional increase of $8.4 million over three years
(around 5.8 per cent of total NPALAS CLC funding over that period).[12]
AGD ‘Justice Services’ funding
Due to the redirection of CLC funding through
the NPALAS, the amount of CLC funding delivered by the AGD has decreased. The forecast CLC funding provided through the AGD over the
forward estimates shown in the 2018–19 Budget is consistent with the figures forecast
in the 2017–18 Budget, as Table 2 below demonstrates.[13]
This year’s forecast shows CLC funding provided through the AGD decreasing by 71 per
cent ($7.2 million) between 2018–19 and 2019–20, and then stabilising over
the remainder of the forward estimates.[14] This funding decrease appears
to be related to the changed focus of the AGD’s Community Legal Services
Programme from providing funding for delivery of legal services to a
discretionary grant program, which will fund ‘national service delivery
projects, innovative pilot programmes and programme support activities’ to enhance
the provision of legal assistance to the community.[15]
Table 2: funding for CLCs provided through the AGD
| (all
figures in $’000) |
2016–17 Budget |
2017–18 Budget |
2018–19 Budget |
2019–20 Forward Estimate |
2020–21 Forward Estimate |
2020–21 Forward Estimate |
| Community
legal services |
2016–17
Budget |
7 906 |
7 704 |
2 627 |
2 661 |
— |
— |
| 2017–18
Budget |
8 016* |
8 989 |
10 185 |
2 991 |
3 179 |
— |
| 2018–19
Budget |
— |
8 989* |
10 185 |
2 988 |
3 179 |
3 223 |
| Change:
2017–18 to 2018–19 |
— |
0 |
0 |
–3 |
0 |
N/A |
*Estimated actual from relevant Portfolio budget statements. Source:
as per footnote 13.
Total CLC funding
The figure below shows Commonwealth recurrent spending on
CLCs from 2005–06 to 2019–20.[16] The figures from 2015–16
onwards include funding provided through the AGD and funding provided under the
NPALAS.[17]
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.[18]
The funding commitments for the Indigenous Legal Assistance Program ((ILAP),
previously named the Indigenous Legal Aid Policy Reform Program),[19] are detailed in
the following table:
Table 3: funding commitments for the Indigenous Legal
Assistance Program
| (all
figures in $’000) |
2016–17 Budget |
2017–18 Budget |
2018–19 Budget |
2019–20 Forward estimate |
2020–21 Forward estimate |
2021–22 Forward estimate |
| Indigenous
Legal Assistance Program |
2016–17
Budget |
73 585 |
69 099 |
68 992 |
69 890 |
— |
— |
| 2017–18
Budget |
73 585* |
74 463 |
74 365 |
75 276 |
70 173 |
— |
| 2018–19
Budget |
— |
74 463* |
74 365 |
75 202 |
70 173 |
71 155 |
| Change:
2017–18 to 2018–19 |
N/A |
0 |
0 |
–74 |
0 |
N/A |
* Estimated actual from relevant portfolio budget statements.[20]
Source: as per footnote 19.
The funding for the Indigenous Legal
Assistance Program in the 2018–19 Budget is largely consistent with the funding
indicated in the 2017–18 Budget.[21]
The estimated amount spent on the ILAP in
2013–14 was $74.9 million.[22] Using that
figure as a benchmark, the 2016–17 Budget indicated that funding for the ILAP
would be 1.8 per cent ($1.3 million) less in 2016–17; 7.8 per
cent ($5.8 million) less in 2017–18; eight per cent ($5.9 million) less in
2018–19 and 6.7 per cent ($5 million) less in 2019–20.[23]
Over the period 2017–18 to 2019–20, this would have been a cut of $16.7
million—the same amount of additional funding for Aboriginal and Torres
Strait Islander Legal Services announced by the Government in
April 2017 and reflected in the 2017–18 and 2018–19 budget papers.[24]
Domestic violence
services
This year’s budget has no additional funding
for domestic violence services, however as part of the Women’s Safety Package, last
year’s (2017–18) Budget included $3.4 million in funding over two years to expand
the trial of Domestic Violence Units (DVUs) in legal centres around Australia.[25]
The DVUs will provide legal and other assistance (such as financial
counselling, tenancy assistance, trauma counselling, emergency accommodation,
family law services and employment services) to women who are experiencing, or
at risk of, domestic or family violence. The location of the DVUs was announced
in October 2017, in high need areas in each state and the Northern Territory.[26]
Reaction from
stakeholders
The Law Council of Australia (LCA) has called for a
‘significant boost in federal funding for legal aid’ as it regards the legal
assistance sector as ‘critically underfunded’.[27] LCA President Morry
Bailes said:
Through the Law Council’s Justice Project, we
estimate that an additional $390m per annum is required to get the legal
assistance system back on its feet. This includes $200m as recommended by the
Productivity Commission for civil legal assistance alone.[28]
The preventative, everyday role of timely legal
assistance stops simple problems from escalating into more serious matters at
great cost to the taxpayer and community. It’s time this was recognised and
funded adequately.[29]
The National Association of Community Legal
Centres expressed disappointment that the Budget did not provide additional
core funding for legal services and felt that the Budget was ‘a missed
opportunity to provide funding certainty ahead of expiration of National
Partnership Agreement on Legal Assistance Services in 2020’.[30]
The National Aboriginal and Torres Strait
Islander Legal Services (NATSILS) considers that the budget will ‘create more
legal need for Aboriginal and Torres Strait Islander people’ by failing to
address recommendations of the Australian Law Reform Commission and the Royal
Commission into the Protection and Detention of Children in the Northern
Territory aimed at addressing the over-representation of Indigenous people in custody.[31]
NATSILS is disappointed that the budget did not provide additional support for Indigenous
legal services.[32]
[1].
Council of Australian Governments (COAG), National
Partnership Agreement on Legal Assistance Services,
[2016], as varied 28 June 2017.
[2].
J Murphy and M Brennan, ‘Legal
aid and legal assistance services’, Budget review 2016–17, Research paper
series, 2015–16, Parliamentary Library, Canberra, 2016, p. 75; COAG, National Partnership Agreement on Legal
Assistance Services, [2010].
[3].
Australian Government, Federal
financial relations: budget paper no. 3: 2018–19, pp. 64, 66.
[4].
COAG, National
Partnership Agreement on Legal Assistance Services,
[2016], as varied 28 June 2017, clause 7.
[5].
For consistency, figures for 1994–1995 to 2007–2008 were drawn from
the relevant portfolio budget Statements: see, for example, 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 2014–15
were drawn from the respective Final Budget Outcome papers: see, for example,
Australian Government, Final
budget outcome 2014–2015, 2015, p. 77. Figures from 2015–16 to 2020–21
were drawn from COAG, National
Partnership Agreement on Legal Assistance Services,
[2016], as varied 28 June 2017, pp. 10–12 and calculated on the basis of the funding
allocated for legal aid commissions only. Other sources provide figures
that can differ substantially, see: J Murphy, ‘Legal
aid and legal assistance services’, Budget review 2013–14, Research
paper, 3, 2012–13, Parliamentary Library, Canberra, May 2013, p. 61.
[6].
Attorney-General’s Department (AGD), ‘Expensive
Commonwealth Criminal Cases Fund’, AGD website. Under the ECCCF, the AGD
has discretion to provide additional funding to legal aid commissions for
specific, complicated Commonwealth criminal cases, such as drug importation or
criminal conspiracy cases.
[7].
J Murphy, ‘Legal
aid and legal assistance services’, Budget review 2014–15, Research
paper series, 2013–14, Parliamentary Library, Canberra, 2014, pp. 115–116.
For a discussion of the 2014–15 budget measure ‘Legal aid—withdrawal of
additional funding’ see: J Murphy, ‘Legal
aid and legal assistance services’, op. cit., p. 115; Australian
Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, p. 19; Australian Government, Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 19; Australian Government, Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 17.
[8].
Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, op. cit., p. 19; Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 19; Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 17.
[9].
Australian Government, Portfolio
budget statements 2015–16: budget related paper no. 1.2: Attorney-General's
Portfolio, pp. 19, 30.
[10].
COAG, National
Partnership Agreement on Legal Assistance Services, [2016], as
originally agreed, pp. 10–11.
[11].
G Brandis (Attorney-General), M Cash (Minister for Women) and N Scullion
(Minister for Indigenous Affairs), Record
federal funding for legal assistance, media release, 24 April 2017. See
also: Murphy and Brennan, ‘Legal
aid and legal assistance services’, op. cit., for more
details about CLC funding under the NPALAS.
[12].
For details about the forecast CLC funding cuts see: Murphy and Brennan,
‘Legal
aid and legal assistance services’, op. cit., pp. 76–77.
[13].
Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, op. cit., p. 19; Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 19; Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 17.
[14].
Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 17.
[15].
AGD, ‘Community
Legal Services Programme’, AGD website. For further information see: AGD, Programme
guidelines for Community Legal Services Programme, 2015.
[16].
The forward estimates do not include figures for 2020–21, reflecting the
expiry of the NPALAS on 30 June 2020, and hence figures for 2020–21 are not
included.
[17].
For consistency, figures for 2005–2006 to 2015–16 were drawn from the
respective final budget outcome papers. See, for example: Australian
Government, Final
budget outcome 2014–2015, September 2015, p. 77. Figures from 2016–17
to 2019–20 were drawn from COAG, National
Partnership Agreement on Legal Assistance Services,
[2016], as varied 28 June 2017, pp. 10–12 and the relevant portfolio budget
papers and calculated by combining the spending on CLCs contained in the NPALAS
and portfolio budget paper. See, for example, Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 17.
[18].
Murphy, ‘Legal
aid and legal assistance services’, Budget review 2014–15, op. cit.,
p. 116 and sources cited therein.
[19].
Murphy, ‘Legal
aid and legal assistance services’, Budget review 2015–16,
Research paper series, 2014–15, Parliamentary Library, Canberra, 2015, p. 106
and sources cited therein.
[20].
Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, op. cit., p. 20; Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio , op. cit., p. 20; Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 19.
[21].
Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio , op. cit., p. 20; Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio,
op. cit., p. 19.
[22].
Australian Government, Portfolio
budget statements 2014–15: budget related paper no. 1.2: Attorney-General's
Portfolio, 2014, p. 32; Murphy, ‘Legal aid and legal assistance services’, op.
cit., p. 106 and sources cited therein.
[23].
Australian Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, op. cit., p. 20
[24].
Brandis et al, Record
federal funding for legal assistance, op. cit.; Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio , op. cit., p. 20; Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 19.
[25].
Australian Government, Budget
measures: budget paper no. 2: 2017–18, p. 71.
[26].
G Brandis (Attorney-General), Turnbull
Government funds new domestic violence units, media release, 16 October
2017.
[27].
Law Council of Australia, Budget
boost to counter elder abuse welcome, but greater funding required to end
justice crisis, media release, 8 May 2018.
[28].
For further information see: Productivity Commission (PC), Access
to justice arrangements, Inquiry report, 72, PC, Canberra, 5 September 2014.
[29].
Law Council of Australia, Budget
boost to counter elder abuse welcome, but greater funding required to end
justice crisis, op. cit.
[30].
National Association of Community Legal Centres, A missed opportunity to guarantee essential services, media release, n.d.
[31].
For further information see: Australian Law Reform Commission (ALRC), Pathways
to justice: an inquiry into the incarceration rate of Aboriginal and Torres
Strait Islander peoples, Final report, 133, ALRC, Sydney, December 2017
and Royal Commission into the Protection and Detention of
Children in the Northern Territory, Report of the Royal Commission and Board of Inquiry into the
Protection and Detention of Children in the Northern Territory, The Commission, Canberra, November 2017.
[32].
National Aboriginal and Torres Strait Islander Legal
Services, Federal Budget measures will create more legal need for Aboriginal and
Torres Strait Islander people but no solutions,
media release, 9 May 2018.
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