Chapter 7
The adequacy of funding and resource arrangements for community legal
centres
7.1
This chapter discusses evidence received in submissions and at public
hearings concerning term of reference (f). In general, submissions reiterated
concerns from the 2003‑04 inquiry, and in particular, that funding and
resource arrangements for community legal centres is inadequate. The specific
topics addressed in this chapter are:
-
an overview of community legal centres;
-
the Community Legal Services Program;
-
the adequacy of funding; and
-
recruitment and retention issues.
An overview of community legal centres
7.2
There are more than 200 Community Legal Centres (CLCs) throughout Australia
in metropolitan, suburban, regional, rural and remote areas.[1]
CLCs are independent, community‑managed, non‑profit services that
provide a range of assistance with legal and related matters to people on low
incomes and those with special needs, with a focus on early intervention and
prevention.
7.3
Some CLCs offer specialist legal services (for example: child support;
credit and debt; environmental law; welfare rights; mental health; disability
discrimination; tenancy; immigration; employment; and the arts), and some provide
targeted services (for example: to Aboriginal and Torres Strait Islander
peoples; children and young people; women; older people; refugees; prisoners;
the homeless; and other groups).
7.4
While CLCs assist individuals, they also 'work beyond the individual',
undertaking community development, community legal education and law reform
projects that are based on client need, that are preventative in outcome, and
that strengthen the community they serve.[2]
7.5
In 2006-07, in addition to casework, CLCs provided: more than 222 000
individual legal advices; more than 123 000 information, support and referral
services; more than 2 000 community legal education projects; and finalised
over 580 law reform projects.[3]
7.6
Volunteers are integral to the work of CLCs with thousands of volunteers
across the country providing the commercial equivalent of $23 million of legal
assistance services in 2006. This contribution comprised some 300 000 hours, excluding
pro bono support from the private legal profession (over 25 000 hours per
annum).[4]
7.7
The high rate of volunteerism makes CLCs highly cost effective in the
provision of legal services.[5]
Their peak body, the National Association of Community Legal Centres (NACLC) notes
also their valuable role in limiting judicial system costs:
A study undertaken in 2006 by the Institute of Sustainable
Futures on the Economic Value of Community Legal Centres concluded that every
dollar spent on legal services at community legal centres (CLCs) can save at
least $100 in avoided costs.[6]
7.8
The committee commends the dedication and commitment of CLC volunteers
throughout Australia. Without these efforts, a significant number of
Australians would have little to no access to justice. Furthermore, the work of
volunteers alleviates pressures elsewhere in the legal aid system, allowing
other legal aid service providers to more strategically utilise their limited
resources.
7.9
In early 2008, the Attorney‑General's Department (department) released
its first nationally‑focussed review of the Community Legal Services
Program (the CLSP Review), the program under which the Australian Government
provides CLC funding. The CLSP Review sought to maximise legal outcomes for
disadvantaged Australians by improving legal services, and more effectively and
appropriately targeting community needs.[7]
7.10
The CLSP Review recognised many positive aspects of CLCs, including:
their expertise in areas of law that other providers are not able or not willing
to cover; their multi‑dimensional approach to service delivery,
facilitating assistance to people with complex needs and multiple disadvantaged; and a client base marked by low income, marginalisation,
disadvantage and a lack of social inclusion.[8]
7.11
Submissions to this inquiry endorsed these positive comments. For
example, the Family Court of Australia (FCA) and the Federal Magistrates Court
(FMC), with whom the department agreed, submitted:
The national network of community legal centres is a vital
adjunct to the services provided by legal aid commissions and private legal
practitioners. They are a critical source of professional and impartial legal
information and advice, particularly for people who are not eligible for legal
aid.[9]
The Community Legal Services Program
7.12
At present, 127 CLCs receive Commonwealth funding under the Community
Legal Services Program (CLSP); 20 CLCs receive state/territory funding only;
and over 50 CLCs receive no funding whatsoever,[10]
meaning that approximately 36.5 per cent of CLCs are funded from sources other
than the Australian Government.
7.13
Evidence suggests that whether a CLC is funded under the CLSP depends
upon when that CLC first entered, or sought to enter, the program, and whether
the CLSP Review identified the CLC in question as servicing a legal needs area.[11]
Application‑based grants
7.14
A significant difference between the CLSP and the Legal Aid Program (LAP)
is the method of funding. Whereas the latter is distributed according to a
funding model (the Rush‑Walker model), the CLSP is an application‑based
grants program, with funding provided via three‑year
service agreements. The current agreements expire on 30 June 2010.[12]
7.15
The CLSP service agreement defines the obligations of each party, and
provides an accountability framework for the expenditure of public funds. It
requires each CLC to comply with a range of conditions regarding the use of those
funds, and submit various items for approval, including:
-
a Community Legal Services Program Plan;
-
an annual accrual budget;
-
quarterly funding acquittals;
-
progress reports against the Community Legal Services Program
Plan;
-
annual audited financial statements; and
-
an annual report.[13]
7.16
These accountability requirements are aligned with those of other
Australian programs, but notably, apply only to CLCs funded under the CLSP.
7.17
The committee heard criticisms of the application‑based grants
program. The Suncoast Legal Community Legal Service Inc., for example,
submitted that: there is a lack of transparency and equity in how funding is
apportioned in the sector; and existing services should be funded to a
sustainable level before more services are established:
That a region with the population of the Sunshine Coast which
has had a community legal service in place from the mid-80’s onwards only
received funding to employ a principal solicitor and full-time coordinator as
late as 2007 speaks volumes as to the lack of transparency and equity in how
funding is apportioned in the sector...Where there is a functioning CLC in a town
or region with a particular population, one would expect that it would be
broadly funded to the same level of service as a CLC in another region or town
of similar population, with some adjustment for particularly wealthy or
particularly disadvantaged demographics. In Queensland and throughout Australia
this is clearly not the reality. The tendency to encourage additional under‑funded
services in new communities rather than properly funding those services that
are already running only adds to this problem.[14]
7.18
The Suncoast Legal Community Legal Service Inc. also argued that the
annual grant process is highly unpredictable, complicating the long‑term
future of CLC projects.[15]
Most CLC submissions reiterated these arguments in relation to one‑off
funding injections, additionally noting that the injections are for limited
purposes only.[16]
7.19
By way of illustration, in South Australia the Women's Legal Service
(SA) Inc. applied its one‑off funding injection toward employing another
solicitor for its Rural Women's Outreach Program, but warned that:
We are restricted by the lack of certainty surrounding one off
funding grants, and the lack of funding for undertaking regular and consistent outreach
to Coober Pedy, Oodnadatta, Nepabunna and other remote areas.[17]
7.20
The department is aware of criticisms regarding the application‑based
grants program, with the 2008 CLSP Review recommending that a funding model be
adopted for the allocation of any new funding under the CLSP. The review
set out a proposed funding model, which provided a mechanism for determining:
which CLCs are located in areas of greatest demand; which CLCs are in the
greatest need of funding; and the relative distribution of new funding based on
four primary considerations.[18]
7.21
According to the department, consultations have commenced on some of the
CLSP Review's recommendations, including a new CLSP funding model. At the time
of writing, a model has not been agreed or implemented.[19]
7.22
The committee notes the on‑going criticisms of the grants‑based
funding, and commends the department for considering, consulting and seeking to
implement a new funding model. The committee endorses that process, urging the
department to widely consult with interested stakeholders throughout the reform
process. The committee considers that all CLCs should be captured by the new
funding model to bring uniformity to the funding process.
Recommendation 22
7.23
The committee recommends that the Attorney‑General's Department,
in consultation with interested stakeholders, expedite the development of a new
funding model for the allocation of Australian Government funding to all
community legal centres.
Core funding
7.24
Term of reference (f) is fundamentally directed toward the issue of
whether CLCs have sufficient funds to effectively provide access to justice for
disadvantaged Australians.
7.25
Figure 7.1 below shows the Australian Government funding levels for the
CLSP for the period 1999-2009, compared with state/territory funding levels.
Overall, contributions have increased. Commonwealth funding increased
marginally each year, whereas state/territory contributions increased
significantly to the point where they are now on par with the Australian
Government funding levels.
Figure 7.1 – Commonwealth, state and territory funding for the Community
Legal Services Program: 1999-2009
Source: Attorney‑General's
Department, Review of the Commonwealth Community Legal Services Program, March 2008, p. 109; and Attorney‑General's
Department, Submission 54, p. 6.
(Note: There is slight
variation in the 2007-2009 figures as reported in Portfolio Budget Statements)[20]
7.26
Figure 7.2 below describes Australian Government funding for CLCs in
each state/territory, compared with state/territory government funding for the financial
year ending 30 June 2007. In that period, the Australian Government solely
funded CLCs in Tasmania and the territories, with significant contributions in
South Australia and Western Australia.
Figure 7.2 – Commonwealth, state and territory funding for Community Legal
Centres: 2006-07
Source: Attorney‑General's
Department, Review of the Commonwealth Community Legal Services Program, March 2008, p. 43.
(Note: The figures include
NSW Public Purpose Fund monies, state/territory only funded CLCs and
state/territory funding to state/territory based sector federations and
associations.)
7.27
In the 2009‑10 Budget, the Australian Government announced that its
current year funding for CLCs would be $26.085 million (a decrease of $135
000), with a further $81.091 million spread out over three years.[21]
7.28
The committee understands that the 2009-10 Australian Government funding
will be distributed nationwide as shown in Figure 7.3 below. The statistics
show fluctuations in the distribution of Australian Government funding for CLCs,
as compared with its 2006‑07 funding however the Commonwealth alone
continues to fund CLCs in the territories.
Figure 7.3 – Commonwealth, state and territory funding for Community Legal
Centres: 2009-10
Source: National
Association of Community Legal Centres, Answer to Question on Notice (11
September 2009)
One‑off funding injections
7.29
In addition to core funding, the Australian Government has in the past
provided one‑off funding injections to CLCs covered by the CLSP. From
1999‑2009, four such injections were made:
-
$10 million in April 2008 to assist in the management of
increased demand for services;[22]
-
$5.8 million in August 2008 to improve access to justice for
communities in rural, regional and remote (RRR) areas (as part of the Regional
Innovations Program for Legal Services);[23]
-
$4 million in May 2009 to 47 CLCs, focussing on areas such as
consumer protection, mortgage and tenancy issues, welfare rights, family, and
homelessness issues;[24]
and
-
$1.5 million in June 2009 to CLCs, focussing on older
Australians, family law and family violence matters, the establishment of a
trial legal clinic for homeless persons in the ACT and Victoria, and
development of clinical legal education projects in the area of family law.[25]
7.30
The CLSP Review immediately preceded the one‑off funding
injections, which submissions and evidence universally welcomed. However, both
the CLSP Review and submissions stated that CLCs remain under‑funded.
The adequacy of funding
Community legal centres face [challenges] in delivering
services on current funding levels – the average amount of funding provided
under the Commonwealth Community Legal Services Program in 2006-07 is
approximately $173,000.[26]
7.31
This finding from the CLSP Review articulated what the NACLC described
as 'a funding crisis' affecting CLCs, and one which National Legal Aid (NLA)
submitted has been developing for at least the past 10 years.[27]
7.32
Submissions to the inquiry overwhelmingly supported the NACLC and NLA's
assertions and called for more adequate funding for the sector.[28]
An illustration of how funding inadequacies affect CLCs' facilitation of access
to justice was provided to the committee at its Perth (and other) hearings.
7.33
The Employment Law Centre of WA described its precarious position
following the cessation of Australian Government funding in November 2006.
Since then, the centre operates on short‑term funding from the state
government and the WA Public Purposes Trust Fund. The centre expressed concern for
its 4000 odd clients and also the approximately 6000 prospective clients who
the centre is not adequately resourced to assist:
For [those] people who are not able to access ELC’s services
they have no equivalent alternative to the ELC to turn to. These clients are
then left with the unsatisfactory option of either abandoning their claim for
lawful entitlements or pursuing their claim without assistance, often against
their legally represented employers.[29]
7.34
In response to questions, the Employment Law Centre of WA advised that
it nonetheless tries to help prospective clients by 'arming' them to self‑represent
(one to five each week, equating to a couple hundred each year). Its success is
not statistically measurable, but it believed this achieves better outcomes for
both the individual and the judicial system.
7.35
Ultimately, the Employment Law Centre of WA maintained the need for additional
CLC funding, a view supported by other submitters and witnesses to the inquiry,
including the Hunter Community Centre Inc. who clarified that what CLCs really need
is core funding:
One-off or ad hoc funding is welcomed but it is not the way
to fund community legal centres on a long-term basis. At the moment we have a
significant number of projects at our community legal centre which, as I have
mentioned, are under threat of not being continued simply because they are
one-off grants which enable us to do something for six months or 12 months. It
is very difficult to employ people in that situation when you cannot guarantee
them employment for longer than 12 months.[30]
7.36
In evidence, the department acknowledged that one‑off funding
injections are not a long‑term solution to the needs of CLCs (and other
legal service providers). The department told the committee that 'the
government is going to consider [the issue] in the context of the budget,
developing budgets and future plans like that', but:
The attorney is definitely very conscious of the calls,
particularly in the community and the Indigenous legal sector, not only in
terms of the increasing demand for their services but also the particular challenges
that some of those services face in the rural, regional and remote areas.[31]
7.37
Another proponent of this view was the NACLC, which regularly formulates
and presents governments with updated position statements and funding proposals
on behalf of the CLC sector.
Funding proposals
7.38
In January 2008, the NACLC published a funding proposal, which opened
with the following statement:
CLC funding has not kept pace with increased costs. CLCs have
experienced an 18% reduction in funding over the last 10 years in real terms. This
impacts on outcomes for clients, placing unsustainable stress on the
organisations’ ability to deliver service. CLCs have had to cut back on staff,
service hours and other expenses that support innovation and growth of
services.[32]
7.39
To remedy the problem, the NACLC submitted that it would be necessary to
invest a further $39.155 million in CLCs:
-
$10.3 million immediately (to account for inflation and increase
baseline funding);
-
$13.7 million in the 2008‑09 Budget (to provide specialist
services and better support RRR areas); and
-
$15 million in the 2009‑10 Budget (for allocation to CLCs which
do not receive baseline funding).[33]
7.40
The Law Council of Australia (Law Council) supported this proposal,
stating that the extra funding would allow CLCs to continue to act as an essential
tool of social inclusion.[34]
SCALES Community Legal Centre agreed:
It is essential that CLCs be funded in a sustainable and
reliable manner, allowing them to achieve their goals. One of the main
strategies of CLCs is to provide people with information on the law and teach
them through workshops and other programs to use that information for their own
and their communities use in the future or to prevent them from falling into a
position of disadvantage within the legal system. Through the use of these
strategies, CLCs are combating social exclusion. They are promoting social
inclusion for communities by providing them with information on the law and how
to navigate themselves around the legal institutions. CLCs deliver more than
the individual benefit but also a broader public benefit, every time CLCs
prevent clients from interacting with the judicial system or having to resort
to governmental institutions for their problems, costs for the government in
those bodies were decreased.[35]
Baseline funding
7.41
Each CLC has an effective baseline funding requirement. In September
2007, the NACLC estimated that amount at around $500 000, a figure based on
highly reduced legal rates (due to CLCs' high rates of volunteerism), and
exclusive of costs specific to RRR area service delivery (for which, it argued,
there should be a loading).[36]
7.42
This estimate is now two years out of date, and in spite of the CLSP
Review's acknowledged baseline funding ($173 000), evidence to the committee
suggests that the baseline funding amount has not been substantially increased.
7.43
Furthermore, the department conceded that neither the current
consultations regarding a new funding model for the CLSP, nor the model itself,
include productivity outcomes for funding at any specified amount. The department added that there is quite a large range in annual
funding amounts, and what might be appropriate for some CLCs would not
necessarily be appropriate for others.[37]
7.44
The discrepancy between actual funding and estimated effective, or
required, funding is depicted by the NACLC for the period 1996 to 2007 as
follows.
Figure 7.4 – Actual and estimated community legal centre funding: 1996-2007
Source: National
Association of Community Legal Centres, Community Legal Centres across
Australia – An investment worth protecting, Attachment, p. 2.
Funding impacts on service delivery
7.45
Evidence from CLCs confirmed that their funding is not sufficient to
enable them to comprehensively deliver legal assistance to their clients. In
2007, the Australian Council of Social Services estimated that up to 72 per
cent of people seeking assistance from not‑for‑profit community and
welfare services are turned away 'because services are operating at maximum
capacity and have to ration access in some way.'[38]
Submitters and witnesses agreed that inadequate funding is affecting both the
quantity, or extent, of services, and their quality.
7.46
The Hunter Community Legal Centre Inc., for example, told the committee
that, as with all CLCs, it does not have sufficient funding to purchase a
precedent data base, which would enable its legal practitioners to: expedite
service delivery; more easily provide service in a wide‑range of legal
matters; and achieve output consistency among CLCs.[39]
7.47
Aside from legislation, regulations and case law, the Law Council noted
that the current providers of set forms and draft documents are commercial
operators, 'corporations who are generally legal publishers who are in this to
make money':
The issue therefore of whether a licence could be
obtained—because a lot of these services are online—by the national or state
bodies for CLCs would be a matter that the Law Council would certainly support,
no question about that. We would be happy to act in a liaison role, to see
whether or not those publishers are prepared to provide those sorts of banks of
precedents in a timely fashion and in a fashion where they can afford it.[40]
7.48
Licensing in the public interest was not explored in the department's
evidence. Instead, the department suggested that representative CLC bodies use
their purchasing power to negotiate software licensing for CLCs. It was not
keen to undertake that role, nor did it envisage any easy way to provide
suitable software for the entire range of highly diverse CLCs under the CLSP.[41]
7.49
The Refugee Advice + Casework Service told the committee that it has an
extraordinary impact on the lives of people fleeing from persecution, but it
operates on an annual budget of less than $500 000. The service estimated that
it requires an additional $100 000 per year to cover core expenditure and
continue processing asylum claims.[42]
7.50
Another example from the Suncoast Community Legal Service Inc. detailed
a problem common to CLCs with large catchment areas:
Initially, the provision of community legal advice by the
Service has been centralised in the business area of Maroochydore. Phone‑out
services were offered to those unable to attend in person for reasons of
disability, child care or for those living in more remote areas. However, there
are a number of recurrent criticisms of the phone out service including the
effectiveness of the phone advice being given, accuracy and quality of advice
given when lawyers are trying to assist with documents they do not have in
front of them and professional indemnity insurance issues.[43]
7.51
In response to these difficulties, the Suncoast Community Legal Service
Inc. established an outreach service in the Noosa/Tewantin area using core
funding. It hypothesised that the subsequent client increase comprised people
using the local and readily accessible outreach service who would 'previously
have foregone seeking legal advice, put off by the inconvenience of an hour
round trip by car or more time if using public transport.'[44]
7.52
In spite of this success, and further expansion of the outreach service,
the Suncoast Community Legal Service Inc. submitted that 'real' access to
justice would require more funding for employed solicitors to provide outreach
services equivalent to the Maroochydore services (longer appointments and
limited casework):
It seems terribly unfair that those in more remote regions
who have private transport are able to access the Marocohydore service yet
those that can’t afford transport or are at some other disadvantage, miss out
on these services, when they are often the ones that need it most...
The demand for services going beyond mere advice and referral
has become increasingly obvious. While many clients benefit from simply being
told what to do next, there is a large group for whom writing a letter,
drafting a document or making approaches to another party for example, are
actions quite beyond their capacity. Provision of more intensive legal services
such as these are generally beyond what can be expected of volunteer lawyers
and realistically require attention from a solicitor employed by the Service...It
is clear that in order to provide any substantial such service to people who
fall into the gap between Legal Aid funding and the private profession,
dedicated case-work lawyers and additional administrative support for those
positions are required.[45]
7.53
The 2003 Federal Justice System Strategy Paper acknowledged that:
A number of services have reduced the range of services
delivered and hours of operation as a consequence of their financial
difficulties. Reduction in services is often preferred by CLCs to closure.
Accordingly, the number of closures is not indicative of the true financial
difficulties being experienced in the sector. The loss or reduction in services
provided by CLCs, particularly in regional and rural locations, may have a
substantial impact on the people who are in need of those services. In many
instances, the CLCs will be the only source of low cost legal services
available in the area.[46]
7.54
At that time, the department recommended giving consideration to
increasing the minimum level for the core operating funding of CLCs and
bringing the least well resourced centres, mainly in regional areas, to the
minimum base.[47]
This recommendation does not appear to have been implemented.
7.55
On behalf of the sector, the NACLC summarised the general view that a lack
of adequate funding (core or maintenance) curtails the efficient operation of
CLCs and their ability to contribute to access to justice. It particularly
identified the following adverse effects:
-
loss, or compromised continuity of services available to socially
and economically disadvantaged people;
-
an increase in self‑represented litigants before courts
without the benefit of any advice;
-
increased pressure on other parts of the legal system such as the
courts and transfer of costs to other under resourced parts of the justice
system already struggling to meet demand (Legal Aid, ALS and pro bono
assistance from the private profession);
-
transfer of costs to other social service providers as clients
are forced to seek assistance from other agencies who are also unlikely to be
able to assist clients with legal problems;
-
likely reduction in support from volunteers and pro bono lawyers
who are sensitive to changes in government policy, and generally support CLCs’
charters of independence;
-
a particular impact on clients in RRR areas as CLCs’ outreach
services risk becoming untenable on limited funds;
-
personal costs and hardship to the individuals unable to receive
assistance;
-
reduced ability of CLCs to work as effectively or efficiently on
collaborations with other service providers in the justice sector; and
-
undermining of the community’s confidence in the ability of the
government to provide equitable access to the justice system generally.[48]
7.56
In its 2004 Report, the committee recommended that the Australian, state
and territory governments provide additional funding to enable CLCs to overcome
existing operational difficulties, such as inadequate premises, facilities and
resources, and enable them to better plan for such requirements in the future.[49]
7.57
This recommendation was not accepted by the Australian Government on the
basis that its contribution to CLCs is indexed each year and 'the Government
does not expect them to operate at a level outside their funding.'[50]
7.58
Evidence to the inquiry, together with evidence from the 2003‑04
inquiry, overwhelmingly suggests however that CLCs need greater funding to
provide minimum levels of access to justice.
7.59
The committee acknowledges this evidence, but notes that if CLCs are to
receive increased funding, then their accountability and transparency
requirements must be commensurately higher. The committee suggests, for
example, that all publicly funded CLCs should report annually on measurable key
performance indicators and benchmarks, and the department should investigate
additional measures in its on‑going consultation and review. Subject to
this suggestion, the committee endorses Recommendation 62 of its 2004
Report (now labelled Recommendation 23).
Recommendation 23
7.60
Subject to increased accountability and transparency requirements, including
measurable key performance indicators and benchmarks, the committee recommends
that the federal, state and territory governments increase the level of funding
for community legal centres with a view to sufficiently resourcing this sector
of the legal aid system to meet the needs of the Australian people.
7.61
The committee also acknowledges recent funding proposals from the NACLC,
and its recent baseline funding calculations. The committee cannot say whether
these estimates are reasonable given the lack of data regarding legal needs and
the diverse range of CLCs throughout Australia.[51]
7.62
The committee accepts however that individual CLCs have particular
resource needs. In view of Recommendations 2 and 3, the committee agrees in
principle only with Recommendation 59 of its 2004 Report. The committee considers
that, in its current consideration of a new CLSP funding model, the department
should have regard to eligibility criteria, including the admission of CLCs not
currently covered by the program and the exclusion of CLCs which are not
politically neutral, for example, those Environmental Defender's Offices who
engage in political activities.
Recommendation 24
7.63
In conjunction with Recommendation 22, the committee recommends that the
Australian Government reconsider the eligibility criteria of the Community
Legal Services Program with a view to allowing for the admission of suitable community
legal centres throughout Australia.
Civil law matters
7.64
In addition to general concerns, submissions and evidence highlighted
the need for extra funding in particular areas (such as: community legal
education; advocacy; and law reform projects).[52]
Civil law matters also elicited particular comment, with submissions and
evidence calling for more funding in this high needs area not covered by Legal
Aid Commissions (LACs).
7.65
Graphs 7.1 and 7.2 below show the proportionate areas of legal need
experienced by CLC clients in 2007‑08 and 2008‑09, respectively.
Allowing for minor fluctuations over this period, civil law matters comprise a
significant proportion of the legal work undertaken by CLCs.
Graph 7.1 – Community legal centre legal needs: 2007-2008
Source: National
Association of Community Legal Centres, Annual Report 2007-08, p. 11.
Graph 7.2 – Community legal centre client needs: 2008-2009
Source: National
Association of Community Legal Centres, Answer to Question on Notice (11
September 2009)
7.66
The Public Interest Law Clearing House (PILCH) told the committee:
Civil law...constitutes the greatest area of unmet need in
legal aid funding, and similarly CLC service delivery capacity. Inadequate
support for civil law matters removes access to justice for many people facing
issues as diverse as Mental Health Review Board meetings, personal injuries,
tenancy, contract law, social security and motor vehicle accidents.[53]
7.67
In 2003‑04, the committee considered it important for CLCs to be
properly funded, enabling them to provide services responsive to community need,
and the committee continues to agree with this view. Civil law matters appear
to be one such area of need however the committee questions whether CLCs are
being adequately funded to meet this need, particularly in light of the global
financial crisis and a lack of coverage by LACs.
7.68
In its 2004 Report, the committee warned:
It is imperative that the Commonwealth and state/territory
governments acknowledge existing shortfalls in funding and accept that a
continuing deterioration in circumstances will inevitably lead to a severe
crisis for CLCs.[54]
7.69
The committee made a number of targeted recommendations, including that:
The Commonwealth Government should take a lead role in
recognising and overcoming the diminishing capacity of community legal centres
by, for example, providing increased levels of funding to enable community
legal centres to better perform their core functions, and establishing new
community legal centres to ease some of the burden on existing community legal
centres and to address unmet legal need.[55]
7.70
This recommendation was not accepted by the Australian Government, which
responded as it did to Recommendation 62 (CLC funding is annually indexed and
CLCs are to operate within budget).[56]
To some extent, Recommendations 60 and 62 of the 2004 Report overlap. For that
reason, the committee does not reiterate the former recommendation, instead encouraging
the Australian Government to take a lead role in recognising and meaningfully
responding to the diminishing capacity of community legal centres to meet the
needs of the Australian people.
7.71
Five years ago, the committee did not make any recommendations regarding
a CLC civil law program. While evidence to the inquiry suggested a strong need
for a national civil law program, the committee considers that providing such a
program within the legal aid sector might account for this need in the CLC
sector of the legal aid system. In view of Recommendation 8, the committee
therefore declines to make any further recommendations in this regard.
Recruitment and retention issues
7.72
Chapter 2 identified access to legal representation as a problem
affecting disadvantaged people with legal needs, particularly those people living
in RRR areas. For the 44 CLCs located in RRR areas, recruitment and retention
of legal practitioners hinders their ability to facilitate access to justice, a
situation experienced by all legal service providers in such areas.
7.73
Submissions and evidence to the inquiry expounded on CLCs' recruitment
and retention difficulties, with most explaining the difficulty and its consequent
solution as a funding issue.
7.74
DLA Phillips Fox explained that almost all CLC funding is used to employ
staff, and funding reductions therefore affect either staffing levels or salary
levels. In practice, management committees almost universally sacrifice salary
levels to maintain services.[57]
7.75
According to Gilbert & Tobin, the result of this sacrifice is that:
Community Legal Centres’ salaries have not kept pace with
salary growth within the Legal Aid Commission or the private legal sector.
While there are notable exceptions of dedicated and experienced legal centre
staff who have worked in the sector long term, generally there is high turnover
and difficulty in attracting new staff and retaining that staff on the salaries
offered.[58]
7.76
The Women's Legal Service (SA) Inc. agreed with this assessment:
Many CLCs such as WLSSA are unable to pay remuneration that
is commensurate with Legal Aid practitioners, ATSILS practitioners, or
government legal officers. In the 2004 to 2007 period the average wage for CLC
employed principal solicitors with more than five years experience was less
than $50,000.00.[59]
7.77
The Refugee Advice + Casework Service testified that its:
...small team of dedicated caseworkers/lawyers receive very
low wages given their qualifications, even for the already low‑paid CLC
sector. Working with clients who have often experienced trauma is stressful
enough, yet RACS employees must take on very high (and unsustainable) case
loads to fund core operating costs. The result is more pressure on low‑paid
and over‑worked employees.[60]
7.78
The committee heard that one‑off funding injections have been used
to alleviate the problem, but note that this is a short‑term solution
only. The Women's Legal Centre (ACT and Region) Inc. provided the following
illustration:
For the 2008‑2009 financial year, the Centre was able
to offer staff bonus monthly payments, so that their overall remuneration
packages were level with salaries paid by the ACT Government...The reason that
the Centre was able to (in effect) raise staff salaries (by way of a fortnightly
bonus payment over the course of the 2008-2009 financial year) was because of
to [sic] the Federal Government’s one off funding payment to Community Legal
Centres made in April 2008. Unless appropriate ongoing funding is forthcoming,
the Centre will have to revert to its existing base salaries for staff. These
salaries are becoming increasingly unworkable and unfair.[61]
7.79
As with pro bono legal assistance, submissions evinced strong
disapproval for the long-term maintenance of survival strategies which rely on
legal practitioners' goodwill, and governments' apparent unwillingness to provide
adequate CLC funding.
7.80
The NACLC, for example, submitted:
It is not appropriate for the Australian or State Governments
to rely on the self sacrifice of community sector workers to achieve the
outcomes the Australian Government asserts are essential to its social
inclusion program and a fair and just society. In any event...the degree of
disparity in remuneration has become so severe in some areas that recruitment
and retention have become impossible or very difficult, severely adversely
affecting service delivery.[62]
7.81
Taking up this theme, DLA Phillips Fox elaborated on how low salary
levels directly impact on staff turnover, and in turn, impact on CLCs and their
ability to achieve and maintain service levels:
The calibre of staff that legal centres can attract is
perhaps the most obvious risk associated with the payment of low salaries. With
salary levels for legal staff slipping to 70% of equivalent APS salaries, it is
impossible to ignore the impact of low salaries on the ongoing ability of the
sector to attract and retain qualified, experienced staff.
With the salaries of Principal Solicitors and Managers at
CLCs at about 50% of salaries paid at the equivalent level in comparable
positions, the Community Legal Sector’s ongoing ability to recruit capable,
competent individuals to effectively manage CLCs must also be seriously
compromised.[63]
7.82
Similarly, Gilbert & Tobin submitted:
Centres with high staff turnover are forced to dedicate
increased time to recruitment, file handover and staff training on induction at
the cost of service delivery. “Organisational knowledge” is lost and so are
client relationships. As a consequence staff can be limited in their capacity to
run cases particularly test and public interest cases.[64]
7.83
PILCH submitted that, in addition to remuneration, CLC employment
conditions lag behind those of their public and private counterparts,
'deficiencies' which fail to reward the service offered by CLC staff and which are
a structural risk to the sector:
PILCH recommends an independent review of the salaries and
conditions for CLC workers, with a comparative study of those in comparable
international regimes, and looking at retention rates, career paths, flexible
secondment arrangements across government, the private legal sector and CLCs.[65]
7.84
In 2006, Mercer Human Resource Consulting reviewed a selection of CLC positions
on behalf of the NACLC (Mercer Report). The Mercer Report found that CLC award‑based
remuneration levels did not compare favourably with equivalent salary scales in
the federal and NSW public sectors (being 29‑38 per cent lower). It
considered competitive a range of plus or minus 15 per cent around the target
marker.[66]
7.85
Two years earlier, the committee had considered the issue of CLC
remuneration, recommending that:
The Commonwealth Government and state/territory governments
should provide additional funding to enable community legal centres to recruit,
train and retain staff, through adequate remuneration, skill development
programs and improved employment conditions.[67]
7.86
The committee notes that this recommendation is supported by the
evidence received during this inquiry. However, it overlaps with Recommendation
23, and accordingly, while the committee agrees in principle with
Recommendation 61, there is no need for its reiteration.
7.87
As noted in Chapter 2, and mentioned above, CLCs' recruitment and
retention difficulties are partially due also to RRR issues. The Federation of
Community Legal Centres advised the committee that it proposes to create a CLC
graduate program whereby law graduates are temporarily sponsored to practise in
RRR areas.[68]
The committee considers such a program to be a valuable extension of the
clinical legal education programs discussed in Chapter 6, and a program which
could encourage law graduates to more favourably view practise in non‑urban
areas.
Recommendation 25
7.88
The committee recommends that the Australian Government provide the Federation
of Community Legal Centres with some funding support for its proposed Community
Legal Centre Graduate program and that future Community Legal Centre graduate
schemes be similarly supported.
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