Legal assistance services
2.1
There are four main government-funded legal assistance service providers:
-
Legal Aid Commissions (LAC) provide services to most people
receiving publicly-funded legal assistance, with a focus on providing legal
assistance to disadvantaged Australians. LACs provide assistance in criminal,
family and civil matters.
-
Community Legal Centres (CLCs) are community based,
not-for-profit organisations, which assist people who cannot afford a private
lawyer but who cannot obtain a grant of legal aid. CLCs are diverse
organisations, with some offering generalist services, while others target
specific areas of law or particular client groups (for example, women or young
people). CLCs provide mainly civil and family legal assistance.
-
Indigenous legal assistance providers (formerly Aboriginal and
Torres Strait Islander Legal Services (ATSILS)) deliver legal assistance services
to Aboriginal and Torres Strait Islander people through targeted, culturally
competent legal assistance services. Main areas of law are criminal law
matters, with some services in family and civil law as funds permit. The
majority of outlets are in regional and remote areas.
-
Family Violence Prevention Legal Services (FVPLS) provide
services specifically to Aboriginal and Torres Strait Islander victims of
family violence or sexual assault, with the aim of preventing, reducing and
responding to incidents of family violence and sexual assault. FVPLS operate
primarily in regional and remote areas. Services primarily include family
violence orders, child protection, victims compensation and family law and
child support where it relates to family violence.[1]
2.2
The National Association of Community Legal Centres (NACLC) stated that
while the nature, purpose, work and capacities of these providers is
complementary they are not interchangeable.[2]
Similarly, the Productivity Commission noted that each of the four types of
services provide 'specialised but complementary roles'.[3]
Figure 1 is a comparative table of the four legal assistance providers.
Figure 1: Government-funded legal
assistance providers 2012-13[4]
| |
Legal aid commissions
(LACs) |
Community legal centres (CLCs) |
Aboriginal and Torres
Strait Islander legal services (ATSILS) |
Family violence
prevention legal services (FVPLS) |
| Where are they located? |
8 LACs
- In all states and territories
- Metropolitan, regional and remote services including
regional offices
|
200 CLCs
- In all states and territories
- Mainly in metropolitan and regional areas
|
8 ATSILS
- One in each state, two in NT; ACT serviced by NSW
- Majority of outlets in regional and remote areas
|
14 FVPLS
- In all states and territories except ACT and
Tasmania
- Service 31 high need regional, rural and remote
areas
|
| What are their
objectives? |
- Provide access to assistance for the vulnerable and
disadvantaged
- Provide the community with improved access to
justice and legal remedies
|
Contribute to access to legal
assistance services for vulnerable and disadvantaged members of the community
and/or those whose interests should be protected as a matter of public
interest
|
Deliver legal assistance and
related services to Aboriginal and Torres Strait Islander people
|
Provide legal services and
assistance to Aboriginal and Torres Strait Islander victims of family
violence and sexual assault
|
| Who do they target |
- State and territory communities
- Focus on vulnerable and disadvantaged people
|
- Local communities (with outreach) except specialist
CLCs who service their state/territory community
- Those who do not qualify for legal aid focusing on
the vulnerable and disadvantaged
|
Aboriginal and Torres Strait
Islander people or a partner or carer of an Aboriginal or Torres Strait
Islander person
|
Aboriginal and Torres Strait
Islander people or a partner or carer of an Aboriginal or Torres Strait
Islander person, who is a victim of family violence or a child at risk of
family violence and in need of protection
|
2.3
Submissions emphasised the importance of these services in providing
legal assistance for Aboriginal and Torres Strait Islander people. For example,
NACLC stated:
Legal assistance providers play a crucial role in the
Australian legal system for vulnerable and disadvantaged members of the community
and are vital to ensuring access to legal assistance for Aboriginal and Torres
Strait Islander peoples.[5]
2.4
In particular, in relation to Aboriginal and Torres Strait Islander
people the Productivity Commission noted:
Aboriginal and Torres Strait Islander Australians often have
complex legal needs and face substantial barriers in accessing legal
assistance. The nature and complexity of their civil law needs means that
specialist legal assistance services remain justified.[6]
2.5
National Legal Aid noted that ATSILS and FVPLS are the primary providers
of legal assistance services to Aboriginal and Torres Strait Islander people
due to those services being culturally competent.[7]
2.6
NACLC indicated its policy and 'firm belief':
[T]hat the most appropriate providers of legal services for
Aboriginal and Torres Strait Islander peoples are the specifically dedicated
ATSILS and FVPLS staffed and managed, as far as is possible, by Aboriginal and
Torres Strait Islander people.
Aboriginal and Torres Strait Islander peoples have
experienced, and continue, to experience, historical marginalisation from
mainstream services, and generally prefer to and feel culturally secure in
attending Aboriginal and Torres Strait Islander specific services. Importantly,
both ATSILS and FVPLS offer community-controlled culturally safe services to
Aboriginal and Torres Strait Islander peoples.[8]
2.7
Mr Peter Collins, Director of Legal Services, Aboriginal Legal Service
of Western Australia, stated that Aboriginal and Torres Strait Islander people have
a preference for the specialist legal assistance providers:
Aboriginal people come to [Aboriginal Legal Services] because
they feel comfortable; it is culturally appropriate. They are much more
reluctant to go to Legal Aid, for those reasons.[9]
2.8
Both NACLC and National Legal Aid noted that CLCs and LACs also provided
services to Aboriginal and Torres Strait Islander people. As NACLC explained:
There will be occasions when ATSILS and FVPLS are unable to
assist a client because of real or perceived conflict, lack of resources, or
because it is a specialist area of law that is outside their practice
expertise. It may also be the case that in some matters, particularly in
smaller communities, a person may not wish to consult, or be seen to consult a
particular legal service where other members of family or community attend or
work. It is therefore important that Aboriginal and Torres Strait Islander
people have the choice to access other, culturally appropriate legal assistance
providers if they so wish.
As a result, CLCs provide vital culturally appropriate
services to Aboriginal and Torres Strait Islander peoples.[10]
2.9
At the public hearing in Canberra, Ms Elizabeth Quinn, Assistant
Secretary, Legal Assistance Branch, Attorney-General's Department (AGD), noted:
While the Commonwealth funds Indigenous legal assistance
providers separately to provide these culturally-appropriate services for
Indigenous people, mainstream legal assistance services are also assisting
Indigenous people. For example, in year-to-date reporting, 12.9 per cent of the
representation services provided by the legal aid commission and community
legal centres in New South Wales were to Indigenous people. It is interesting
to note that [according to the 2011 census, 2.9 per cent of the New South Wales
population is Indigenous]...The Indigenous representation by mainstream legal
assistance services in other states and territories does vary. However, in all
states and territories these mainstream services are providing ongoing
representation services, including grants of legal aid, to Indigenous people.[11]
Commonwealth funding for legal assistance services
2.10
Commonwealth, state and territory governments provide the bulk of
funding for all of the four legal assistance services.
National Partnership Agreement on
Legal Assistance Services
2.11
In 2010, the Council of Australian Governments (COAG) agreed to
establish the National Partnership Agreement on Legal Assistance Services
(NPA), a four year agreement between the Commonwealth and the states and
territories.[12]
2.12
The NPA was established:
[T]o support a holistic approach to the reform of the
delivery of legal assistance services by legal aid commissions, community legal
centres, Aboriginal and Torres Strait Islander legal services and family
violence prevention legal services.[13]
2.13
The initial NPA was extended until 30 June 2015[14]
and subsequently replaced with a new NPA for the period 1 July 2015
to 30 June 2020.[15]
2.14
The stated objective of the NPA is:
[A] national legal assistance sector that is integrated,
efficient and effective, focused on improving access to justice for
disadvantaged people and maximising service delivery within available
resources.[16]
2.15
The NPA also lists the outcomes to be achieved:
- legal assistance services are targeted to priority
clients with the greatest legal need;
- legal assistance service providers collaborate with each
other, governments, the private legal profession and other services, to provide
joined-up services to address people's legal and related problems;
- legal assistance services are appropriate, proportionate
and tailored to people's legal needs and levels of capability;
- legal assistance services help people to identify their
legal problems and facilitate the resolution of those problems in a timely
manner before they escalate; and
- legal assistance services help empower people to
understand and assert their legal rights and responsibilities and to address,
or prevent, legal problems.[17]
2.16
The NPA provides $1.3 billion, over five years, in Commonwealth funding
for LACs and CLCs.[18]
The Commonwealth Government is providing $257.1 million for the NPA for the
2016-17 financial year.[19]
While this is an increase of $6.2 million from the 2015-16 financial year, the
forward estimates indicate that there will be a decrease of $8.4 million
from the 2016-17 figure over the period 2017-18 to 2019-20.[20]
| Financial year |
$million |
|
2015-16
|
250.9
|
|
2016-17
|
257.1
|
|
2017-18
|
248.7
|
|
2018-19
|
252.9
|
|
2019-20
|
256.8
|
Table 1: Commonwealth funding for the
National Partnership on legal assistance services[21]
2.17
Indigenous legal assistance providers will continue to be funded
directly by the Commonwealth Government.[22]
2.18
In answers to questions on notice, the AGD stated:
Available Commonwealth funding to legal aid commissions,
community legal centres and Indigenous legal assistance providers is
distributed between states and territories using evidence based funding
allocation models. There is a model for each of the three legal assistance
programmes.[23]
2.19
The NPA provides guidance on the prioritisation of legal assistance
services to be delivered by LACs and CLCs:
The legal assistance priority client groups recognise people
whose capability to resolve legal problems may be compromised by circumstances
of vulnerability and/or disadvantage. People who fall within the priority
client groups are more likely to experience legal problems, less likely to seek
assistance and/or less able to access services for a range of reasons.
Legal assistance service providers should focus their
services on people experiencing financial disadvantage.[24]
2.20
The NPA also states that where appropriate, legal assistance service
providers should also plan and target their services to people who fall within
one or more of the priority client groups. The priority client groups include
Indigenous Australians.[25]
2.21
The NPA also sets out 'General Principles' as to Commonwealth service
priorities:
Commonwealth funding should be directed to the delivery of
front-line services and focused on meeting the legal needs of priority clients.
Commonwealth funding should not be used to lobby governments
or to engage in public campaigns. Lobbying does not include community legal
education or where a legal assistance service provider makes a submission to a
government or parliamentary body to provide factual information and/or advice
with a focus on systemic issues affecting access to justice.
Legal assistance service providers should deliver timely
intervention services to resolve clients' legal problems sooner, or prevent
them from arising altogether.
Family or civil law disputes should be resolved through
alternative dispute resolution processes rather than through litigation, where
appropriate.
Legal assistance service providers should consider whether
other services (legal as well as non-legal) may be relevant to a client's needs
and make referrals to these services where appropriate. Suitable collaborative
arrangements should be established for this purpose.[26]
2.22
While only LACs and CLCs are funded under the NPA:
[T]he principles set out in [the NPA] are relevant for the
broader sector, including Indigenous legal assistance providers and family
violence prevention legal services.[27]
Legal Aid Commissions
2.23
In addition to Commonwealth funding, LACs receive funding from state and
territory governments.[28]
In its submission, National Legal Aid provided a breakdown of LAC funding for
the 2013-14 financial year:
The legal aid commissions are funded by each of the
Commonwealth and the State/Territory Governments. Nationally, Commonwealth
funding to legal aid commissions for the financial year 2013-14 was $213.047
million, State/Territory funding was $283.764 million with a further $85.883
million from trust [and] statutory interest funds.[29]
2.24
The NPA provides that Commonwealth funding for LACs 'will be used for
Commonwealth law matters only', except in certain state law matters which are
connected with family law proceedings and 'in discrete assistance or community
legal education'.[30]
Community Legal Centres
2.25
Funding for CLCs varies, as the Productivity Commission noted:
Some CLCs receive sizeable proportions of their revenue from
government funding, while others receive very little or no funding and are
largely or entirely staffed by volunteers. Those CLCs that receive government
funding, can do so from a wide variety of government departments and agencies.[31]
2.26
While noting the Commonwealth, state and territory government funding of
CLCs, the Productivity Commission continued:
CLCs are also able to access funding from other sources,
including fee income, fundraising, philanthropic donations, seeking
contributions from clients and other government funding outside the [Community
Legal Services Program].[32]
Indigenous legal service providers
2.27
In correspondence to the committee, Mr Chris Moraitis PSM, Secretary,
AGD, noted that AGD administers the Indigenous Legal Assistance Program, under
which the eight ATSILS are funded.
2.28
In 2014-15, total Commonwealth funding for the Indigenous Legal
Assistance Program was $74.311 million.[33]
In the 2015-16 Budget, the Indigenous Legal Assistance Program received $72.978
million.[34]
Table 2 sets out the funding for Indigenous Legal Assistance Program for the
2016-17 Budget and the forward estimates.
|
|
2016-17 Budget
$'000
|
2017-18 Forward Estimate
$'000
|
2018-19 Forward Estimate
$'000
|
2019-20 Forward Estimate
$'000
|
|
Indigenous Legal Assistance
Program
|
73,585
|
69,099
|
68,992
|
69,890
|
Table 2 2016-17 Budget and forward estimates
projections for the
Indigenous Legal Assistance Program[35]
2.29
However, the Parliamentary Library made the following comment in
relation to comparing funding between financial years for Indigenous legal
services:
[C]hanges to some Indigenous program names [in the 2014-15
Budget], their transfer to the Department of the Prime Minister and Cabinet,
subsequent consolidation and the lack of details in relevant portfolio budget
papers makes assessing long-term funding trends difficult.[36]
2.30
In October 2015, an officer of AGD informed a Senate Estimates hearing
that 'whilst the Indigenous Legal Assistance Program is 100 per cent
funded by the Commonwealth, in every jurisdiction [with the exception of
Tasmania] the vast majority of the funds are used on state and territory
criminal law matters'.[37]
2.31
In April 2016, Ms Quinn, AGD, provided some further detail on the
distribution of funds to Indigenous legal services providers:
The approach we take with the funding we have is to
distribute it in the most equitable way possible, according to various need
indicators among the jurisdictions, to our Indigenous legal service providers.
We take into account...the disadvantage indicators and population distribution
aspects that affect the cost of service provision, like how geographically
dispersed a population is and those sorts of factors. There is Commonwealth
Grants Commission guidance on unit costs of service delivery. We distribute our
funds according to that and then we, through our grant program, determine that
the most intensive services should be prioritised towards financially
disadvantaged people. That is how we end up with the situation where the
majority of this funding is being spent on state criminal matters, because the
majority of the clients in need are facing imprisonment or are imprisoned.[38]
2.32
Ms Quinn noted that while Indigenous legal service providers are not
funded pursuant to the NPA, they are still required to participate in
service-planning meetings:
One of the key reforms we delivered under the new national
partnership agreement was the requirement for all jurisdictions to bring all
legal service providers and complementary services, as they determined fit, together
for service-planning meetings. That is a formal requirement.
...
...While the Indigenous providers are not funded under the
national partnership agreement, the requirements on them are exactly the same.
...
...Under the NPA, the state is required to include [Indigenous
legal service providers], and, correspondingly, in [the provider's] funding
agreements, they are required to participate in the service-planning process.
That requires the evaluation of not just the supply and the historic—where we
have provided services—but actually looking at demand. We have facilitated the
development of some key statistical analysis, some mapping and those sorts of
things, from expert providers of that sort of analysis, to facilitate that.[39]
Family Violence Prevention Legal
Services
2.33
In December 2013, responsibility for FVPLS moved from AGD to the
Department of the Prime Minister and Cabinet (PM&C), as part of the
consolidation of Indigenous Affairs programs into PM&C.[40]
2.34
The establishment of the Indigenous Advancement Strategy (IAS),
announced as part of the 2014-15 Budget, involved the streamlining of
more than 150 Indigenous programs into five broad program streams. The FVPLS
program was one of the programs streamlined as part of the IAS.
2.35
Ms Antoinette Braybrook, Chief Executive Officer, Family Violence
Prevention and Legal Services Victoria, described the effect of these changes:
The [IAS] tender process announced in August [2014]...confirmed
that this decision effectively defunds or abolishes the National Family
Violence Prevention Legal Service Program. So that $21 million that was
initially allocated to the program no longer exists.[41]
2.36
In its submission to this committee's inquiry on the IAS tender
processes, the National Family Violence Prevention Legal Services summarised
the outcome of the IAS grant round for FVPLSs:
All FVPLSs were successful in their application under the
Indigenous Advancement Strategy, including funding secured for the National
Secretariat[;]
Nine of the FVPLSs initially received only one year of
additional funding, extending significant funding uncertainty and its
distressing impacts on staff and victims/survivors[;]
Following further negotiation these funding agreements were
extended to two years[;] and
Five FVPLS Units received confirmation that three year
funding agreements would be offered[.][42]
2.37
The National Family Violence Prevention Legal Services noted that none
of its members received an increase in funding from the IAS grant round, or
inclusion of CPI.[43]
Announcement of budget cuts to
legal assistance services and reinstatement of funding
2.38
In the 2013-14 Budget, the government announced an expansion of
funding to legal aid commissions with $21 million to be provided in funding for
the 2013-14 and 2014-15 financial years.[44]
Subsequently, the second year of this additional funding was removed in the 2014-15
Budget, with the government announcing savings of '$15 million...by
partially reducing funding to legal aid commissions as announced in the 2013-14
Budget'. The savings from this measure was to be redirected to repair the
budget and fund policy priorities.[45]
2.39
In the Mid-Year Economic and Fiscal Outlook 2013-14 (MYEFO
2013-14) the government announced 'savings of $43.1 million over four years by
removing funding support for policy reform and advocacy activities provided to
four legal assistance programmes'. The explanation in MYEFO 2013-14 expressly
stated that '[f]unding for the provision of frontline legal services will not
be affected'.[46]
2.40
In answers to questions on notice for the Additional Estimates hearings
in February 2014, the AGD provided the following break-down of the funding cuts
across the four legal assistance programs:
Figure 2: MYEFO 2013-14
funding cuts to legal assistance services[47]
|
|
2013-14
$m
|
2014-15
$m
|
2015-16
$m
|
2016-17
$m
|
Total
$m
|
|
Legal Aid Commissions
|
3.5
|
1
|
0.999
|
0.999
|
6.498
|
|
Aboriginal and Torres Straits Islander Legal Services
|
0.18
|
1.641
|
6.036
|
5.484
|
13.341
|
|
Community Legal Services
|
0.875
|
3.499
|
7.623
|
7.621
|
19.618
|
|
SUB TOTAL (3 Attorney-General's Department's Legal Assistance
programs)
|
4.555
|
6.14
|
14.658
|
14.104
|
39.457
|
|
Family Violence Prevention Legal Services (appropriation held by
Department of the Prime Minister & Cabinet)
|
0
|
0.366
|
1.646
|
1.645
|
3.657
|
|
LEGAL ASSISTANCE TOTAL (all 4 programs)
|
4.555
|
6.506
|
16.304
|
15.749
|
43.114
|
2.41
On 25 March 2015, the Attorney-General and the Minister Assisting the
Prime Minister for Women announced a reversal of the previously announced
funding cuts to the legal assistance sector by guaranteeing the current funding
levels for the next two years and that the changes that were to take effect
from 1 July 2015 would not proceed.[48]
The announcement noted the government's overall contribution of over $1.327
billion to the legal assistance sector from 2013-14 to 2016-17, which included:
...restoration of $25.5 million over two years to 30 June 2017,
of funding for Legal Aid Commissions, Community Legal Centres and Indigenous
legal service providers, builds on our significant commitment to address
domestic violence, both in terms of front line services as well as policies
that will lead to long term cultural change.
...
This decision will restore funding of $11.5 million for
Indigenous legal assistance over two years.
Since the 2013 election, the government has carefully
examined legal assistance funding to ensure that funding is directed to front
line services where the need is greatest – such as services providing help to
those affected by domestic and family violence.
After considerable consultation with State and Territory
Governments and service providers, it has been decided there will be no
reduction in Commonwealth funding to Legal Aid Commissions, Community Legal
Centres (except Environmental Defenders Offices) and Indigenous legal
assistance for the next two years.
The Government will honour the funding until the date on
which it would have ended – 30 June 2017.
This announcement provides certainty to the sector while the
process of negotiating a new funding agreement continues. The new funding
agreement is due to commence on 1 July 2015. Commonwealth Government funding
will be sustainable and it will match funding to demonstrated need. It will be
fair and efficient.[49]
2.42
While NACLC welcomed the restoration of funding, it noted that the
announcement did not reverse all the funding cuts. Further NACLC stated:
[T]here are a range of unintended consequences arising from
the decision that have the potential to negatively impact CLCs across
Australia.
As part of the 2015-2016 Federal Budget, funding for CLCs
across Australia will drop significantly from 2017-2018 onwards. For example,
in total from the Commonwealth CLCs will receive $40 million in 2015-2016 and
$42.2 million in 2016-2017, however this funding is forecast to [drop] to $30.1
million in 2017-2018 and $30.6 million in 2018-2019, a cut in the order of $12
million per year from 2017-2018.[50]
Adequacy of funding for legal
assistance services
2.43
Throughout the inquiry, the committee heard evidence emphasising the
inadequacy of funding legal assistance services for Aboriginal and Torres
Strait Islander people. For example, at a public hearing in Darwin for the
committee's inquiry into the Indigenous Advancement Strategy tendering processes,
Mr Jonathon Hunyor, Principal Legal Officer, North Australian Aboriginal
Justice Agency (NAAJA) stated:
It should be seriously beyond dispute that Aboriginal legal
services are chronically underfunded. It has been the subject of numerous
reports over the years from the Productivity Commission, various parliamentary
inquiries and independent reviews. The Law Council of Australia have looked
into it. Unfortunately, the calls for increased funding for Aboriginal legal
services routinely go ignored. Until those calls are heard, Aboriginal people
will not get equal access to legal services or equal access to justice in the
Northern Territory—or anywhere, in fact.[51]
2.44
Similarly, Mr Peter Collins, Director of Legal Services, Aboriginal
Legal Service of Western Australia, advised:
Increasingly, we are finding that [Aboriginal Legal Services
(ALSs)] are being forced to contract services because we have not got the money
to keep offices open. In the Pilbara, for example, we have recently closed our
offices in Roebourne and Newman, and we are not doing a three-week court
circuit in Karratha, where...there are often 120 people on the list per day, most
of whom are Aboriginal, because we do not have the staff to attend that court.
We have an office based in Hedland. There is a magistrate in Hedland who is
sitting at the same time as the magistrate who comes in from Perth is sitting
in Karratha. They sit for three weeks. You cannot be in two places at the one
time. Increasingly there are people appearing in criminal courts, facing
serious criminal charges, who are unrepresented. A very significant proportion
of those are Aboriginal people. In a nutshell, the funding is desultory.[52]
2.45
The Allen Consulting Group, in a June 2014 review of the 2010 NPA noted:
The existing legal assistance service infrastructure is
increasingly focused on earlier resolution of legal problems and is providing a
significant level of service delivery to disadvantaged Australians. This is
especially notable in the context of high levels of demand, limited resources
and clients who often have complex, entrenched and overlapping legal and
non-legal needs.
There is however unmet demand for legal assistance services
and the findings of this Review suggest that legal assistance service providers
will continue to be challenged to achieve government priorities and meet demand
within existing resources.[53]
2.46
In its 2014 inquiry into Access to Justice Arrangements, the
Productivity Commission highlighted unmet legal needs, not specific to
Indigenous Australians, and recommended that additional funding was needed to:
-
better align the means test used by LACs with other measures of
disadvantage;
- maintain existing frontline services that have a demonstrated
benefit to the community; and
- allow legal assistance providers to offer a greater number of
services in areas of law that have not previously attracted funding.[54]
2.47
The Productivity Commission noted budgetary constraints but argued:
...not providing legal assistance in these instances can be a
false economy as the costs of unresolved problems are often shifted to other
areas of Australian and overseas studies show that there are net public
benefits from legal assistance expenditure.[55]
2.48
The Australian Government's response was released on 29 April 2016. However,
a specific response to recommendation 21.4 regarding funding is not evident.[56]
The statement made by the Attorney-General, Senator the Hon George Brandis QC
indicated:
The Australian Government is committed to doing what it can
to increase funding levels for legal assistance in a tight fiscal environment.
This is demonstrated by the $15 million legal assistance component of the $100
million Women's Safety Package, and the restoration of $25.5 million in funding
to the legal assistance sector.[57]
2.49
In relation to Indigenous Australians, The Redfern Statement calls for
adequate funding of Aboriginal and Torres Strait Islander Community controlled
front-line legal services, including:
-
immediately reversing planned funding cuts to ATSILS funding, due
to come into effect in 2017, and investing in FVPLS to create funding
certainty;
- immediately injecting $18.58 million into the Indigenous Legal
Assistance Program per annum, and providing appropriate funding for FVPLS to
urgently address unmet civil and family law needs of Aboriginal and Torres
Strait Islander peoples;
- supporting policy functions within peak Aboriginal and Torres
Strait Islander organisations to allow Community Controlled Organisations with
front-line service delivery expertise to inform policy development; and
- committing to the development of an evidenced-based long term
funding model for the ATSILS, FVPLS and the broader legal assistance sector to
ensure funding is targeted at meeting the unmet legal needs of Aboriginal and
Torres Strait Islander peoples.[58]
2.50
At the public hearing in Canberra, Ms Quinn, AGD, acknowledged the
shortfall in funding:
Our providers certainly keep us very well aware of that
aspect and we are very conscious of the fact that the earlier you can intervene
in a person's legal problem the better the chances that things do not escalate.
Many people have a series of problems that they are facing,
and we know there is evidence to suggest that often a person does not realise
they have a legal problem before it has escalated—the example of unpaid fines
is a critical one. So I do not dispute the evidence of our providers saying it
is very hard to resource that. The issue is, as I said earlier, that around 80
per cent of their services are being directed towards state criminal matters,
which leaves very little in terms of their resourcing to be able to deal with
the sorts of challenges you are talking about. Legal aid commissions do do
quite a bit of that work, as do community legal centres. But, at the end of the
day, yes, I cannot dispute the idea that there is not always enough money to go
around.[59]
Intergovernmental arrangements
2.51
At the public hearing in Canberra, Mr Nick Parmeter, Executive Policy
Lawyer, Law Council of Australia stated that it is not only the lack of funding
which is an issue. Noting the numerous previous inquiries on this topic, Mr
Parmeter remarked:
A fundamental challenge for policy makers in this area is
clearly not a lack of goodwill. We suggest it is the short attention span given
to implementing and evaluating recommendations which have come before, the
absence of an effective intergovernmental framework for Indigenous justice and
the absence of funding to implement it.[60]
2.52
Both the Australian National Audit Office (ANAO) and the Productivity
Commission have commented on the effect of state and territory policies on the
demand for Commonwealth funding for legal services. The ANAO stated:
[T]he demand for services arises largely from the operation
of state and territory laws. In this respect, demand for Indigenous legal
assistance services is not in the control of the Australian Government and can
be affected significantly by changes made to state and territory laws.[61]
2.53
Mr Hunyor, from NAAJA, reiterated this point:
[W]e are funded exclusively by the Commonwealth, from various
buckets...when laws in the Territory are changed our funding is not changed to
reflect the increasing workload. Things like alcohol protection orders,
mandatory sentencing, changes to the bail act or changes to procedure in the
courts can impact massively on our workload, and yet there is never any
reflection of that in our funding.[62]
2.54
Ms Polly Porteous, CEO of NACLC, commented on the funding commitments
provided by the governments pursuant to the NPA for CLCs:
The National Partnership on Legal Assistance Services does
not require the states and territories to set in stone the amount of money that
they are going to give, if any at all. I think that in Western Australia, South
Australia, Tasmania and the Northern Territory and to a lesser extent the ACT,
just because it is smaller, the state governments in some cases are
contributing no money, as in the case of the Northern Territory, or they are
contributing such small amounts to the community legal centres that the effect
of this reallocation of the bucket of funding is that a lot of legal centres
have actually lost funding.[63]
2.55
On this issue the Productivity Commission recommended:
Given that the policies of State and Territory Governments
have a significant impact on the demand for Aboriginal and Torres Strait
Islander legal services, especially in relation to criminal matters, State and
Territory Governments should contribute to the funding of these services as
part of any future legal assistance funding agreement with the Australian
Government.[64]
2.56
In terms of a coordinated approach to Indigenous justice issues, Mr
Parmeter noted earlier work that state, territory and Commonwealth governments
had done in this area in the form of the National Indigenous Law and Justice
Framework 2009-2015 (NILJ Framework). The NILJ Framework was prepared by the
Council of Australian Governments Standing Committee of Attorneys-General
Working Group on Indigenous Justice.[65]
The Framework's stated purpose is to provide:
[A] national approach to addressing the serious and complex
issues that mark the interaction between Aboriginal and Torres Strait Islander
peoples and the justice systems in Australia.[66]
2.57
The NILJ Framework sets out five interrelated goals:
- improve
all Australian justice systems so that they comprehensively deliver on the
justice needs of Aboriginal and Torres Strait Islander peoples in a fair and
equitable manner
- reduce
over-representation of Aboriginal and Torres Strait Islander offenders,
defendants and victims in the criminal justice system
- ensure
that Aboriginal and Torres Strait Islander peoples feel safe and are safe
within their communities
- increase
safety and reduce offending within Indigenous communities by addressing alcohol
and substance abuse, and
- strengthen
Indigenous communities through working in partnership with governments and
other stakeholders to achieve sustained improvement in justice and community
safety.[67]
2.58
While each of these goals has associated strategies and actions that
could be undertaken, the NILJ Framework explicitly states:
The Framework does not set out to prescribe strategies or
actions to be adopted by governments or service providers. Rather it
articulates an agreed good practice approach, based on available evidence, that
provides government agencies and service providers with a framework from which
to identify the most appropriate responses to specific issues at the local,
regional, state or territory level. The Framework draws on existing State and
Territory instruments such as Aboriginal and Torres Strait Islander justice
agreements.[68]
2.59
Mr Parmeter noted:
No funding was attached to [the NILJ Framework's]
implementation and the lack of state and territory government buy-in ensured
that it lay effectively moribund in the Commonwealth Attorney-General's
Department. Recently, responsibility for the framework was transferred to the
Prime Minister's department, with no obvious plans for its renewal.[69]
2.60
AGD provided the following information on the NILJ Framework:
The [NILJ] Framework was intended to support the Council of
Australian Government's [COAG] agenda to 'Close the Gap' in Indigenous
disadvantage, particularly in relation to community safety.[70]
2.61
Noting that the NILJ Framework did not prescribe actions to be adopted
by governments or service providers, and was rather an agreed good practice
approach, AGD continued:
An external review of the [NILJ] Framework was undertaken by
the National Justice and Policing Senior Officers group in 2013. It was then
due to be reconsidered in October 2013 but, this item was put on hold. In 2014
the framework was rolled into the broader Indigenous justice item on [COAG's
Law, Crime and Community Safety Council agenda (LCCSC)].
[AGD] is advised that no further work has been undertaken by
LCCSC on the [NILJ] Framework.[71]
2.62
AGD continued, referring to the recently finalised National Strategic
Framework for Legal Assistance 2015-20:
The [National Strategic Framework for Legal Assistance
2015-20] promotes a unified and coordinated approach by governments and the
legal assistance sector to enhance access to justice for disadvantage people in
Australia, and to help focus finite resources towards areas of greatest legal
need. The [National Strategic Framework for Legal Assistance 2015-20] is a
strategic document that does not link to government funding, or contain
reporting requirements or obligations on legal assistance service providers.
The [National Strategic Framework for Legal Assistance 2015-20] sits above the
Commonwealth's funding agreements for legal assistance services, being the
National Partnership Agreement on Legal Assistance Services and individual
funding agreements with Indigenous legal assistance providers, adding context
and an overarching link between these funding arrangements. Commonwealth, state
and territory governments endorsed the [National Strategic Framework for Legal
Assistance 2015-20] by majority through the National Justice and Policing
Senior Officers Group on 25 September 2015, demonstrating a mutual commitment
to legal assistance.[72]
2.63
The next chapter of the report looks at the areas of unmet legal needs
for Aboriginal and Torres Strait Islander people and the barriers to accessing
legal assistance.
Navigation: Previous Page | Contents | Next Page