Inquiry into the Australian Legal Aid System

The federal budget

1.23 During the inquiry the Committee noted that some witnesses were cautiously hopeful that the Commonwealth Government in its 1997-98 budget would reverse or minimise its decision to reduce Commonwealth expenditure on legal aid.

1.24 The Tasmanian Attorney-General, the Hon Ray Groom, told the Committee:

[we] are still hoping, perhaps in one sense unrealistically, that in some way the Commonwealth might come to the party and provide further funds than they are indicating at the present time. [17]

1.25 On 13 May 1997 the Commonwealth Government in its 1997-98 budget implemented its stated policies in relation to legal aid. The following extract from a table in the Commonwealth's Budget Paper No. 1 for 1997-98 shows the global figure available for legal aid from 1996-97 and expenditure projections at 1997-98 prices to 2000-01.

Table 1.1: Amounts available for legal aid 1996-97 to 2000-01 at 1997-98 prices

Outlays under this subfunction include: the Commonwealth's contribution to funding for State Legal Aid Commissions for general legal aid services and specific legal aid programmes including the defence of claims under the Native Title Act 1993. The Commonwealth's funding arrangements for legal aid are currently being negotiated with each State and Territory and aim to better target legal aid funding to matters arising under Commonwealth law.

Source: Budget Strategy and Outlook 1997-98 (Budget Paper No. 1), p. 4-32.

1.26 The Committee notes that this table shows that in 1997-98 there is a reduction of $20.7m since 1996-97, with a further reduction of $6.1m in the estimate for 1998-99. The information about funding for legal aid in the budget papers is minimal and therefore difficult to interpret. While it appears that the reduction in funding may not be as great as that forecast in the 1996-1997 budget ($32m per year), it is still substantially less than 1996-97 expenditure.

1.27 The data in the table indicate that if the estimated Commonwealth expenditure for 1996-97 on legal aid, $147.8m, were to continue at the same level for the next four years, the total for that period would be $591.2m. Due to the changes introduced by the Government, the projected expenditure for the four years has been reduced to $496m. This represents a reduction of $95.2m.

1.28 Evidence received by the Committee indicated that this projected level of expenditure is far less than the level which is needed to meet existing demands. Due to the fact that new arrangements have not been finalised it is not possible to show the actual allocations for legal aid funding on a State and Territory basis.The Attorney General's Portfolio Budget Statement provides some insight into the ongoing degree of uncertainty about final arrangements for the provision of legal aid in the States and Territories as 1 July 1997 rapidly approaches. Under the heading Performance forecast for 1997-98, it states that:

A key priority in legal aid for 1997-98 will be implementing Government policy under revised legal aid arrangements, which commence on 1 July 1997. The new policy approach delineates responsibility for legal aid funding in that each government will be responsible for funding matters arising under its own laws. The Commonwealth will establish funding priorities so that legal aid service providers are clear about targeting of scarce resources ... The Department will continue to work in partnership with legal aid service providers whether under the auspices of an intergovernmental agreement or under a more direct relationship such as a service agreement or similar agreement. [18]

The negotiation of new arrangements

1.29 1.30 At an additional estimates hearing on the day prior to budget day, the Secretary of the Attorney-General's Department, Mr Stephen Skehill was asked about the status of negotiations with the States and Territories. Mr Skehill responded:

[T]he situation is that in South Australia, the ACT, the Northern Territory and Queensland, in-principle agreement has been reached. The detailed negotiations with those governments are at a very satisfactorily advanced stage and there is a lot of very good work being done on both sides of the respective tables. In relation to the remaining jurisdictions, there are quite advanced discussions that are proceeding well and meaningfully. But I am not able to give you any further detail in any of the eight jurisdictions because we are not yet at a point of publishing concluded and final agreements. [19]

1.31 When the Committee tabled its first report in March 1997, the Commonwealth had reached in-principle agreement with the Australian Capital Territory, South Australia and the Northern Territory. However, the details of these agreements have not been made public.

1.32 Subsequently, on 22 May 1997, Queensland proclaimed its Legal Aid Queensland Act 1997, establishing a new entity called Legal Aid Queensland to replace the Queensland Legal Aid Commission. The long title to the Act states that Legal Aid Queensland will "provide for legal assistance for persons throughout the State". The Committee notes that the Queensland Government has announced that Legal Aid Queensland will enter into an agency agreement with the Commonwealth to provide legal aid services in relation to Commonwealth matters. An agency agreement is one under which the State legal aid commission will provide legal assistance to people in Commonwealth matters if the Commonwealth Government is prepared to fund the matters.

1.33 It should also be noted that on 3 June 1997 the New South Wales Government announced that it will establish its own autonomous Legal Aid Commission. The Attorney-General of New South Wales, the Hon Geoff Shaw, stated that this decision marks the end of a ten year partnership between the Commonwealth and New South Wales Governments to provide legal aid services for the people of New South Wales. Mr Shaw was reported to have said that New South Wales had been compelled to take this course because of the Commonwealth's abandonment of the joint funding approach. He indicated that New South Wales is prepared to enter into an agency agreement with the Commonwealth. [20]

1.34 The Committee has not been informed of any other new arrangements but is mindful that existing arrangements conclude on 30 June 1997.

Conclusions

The Committee is concerned that the establishment of separate State-based legal aid agencies has the potential to fragment legal aid services, thereby compromising the goal of national equity and uniform access to justice in Australia.

The Committee awaits the details of negotiations and final arrangements with those States that, to date, have not reached agreement with the Commonwealth. The Committee will wish to assure itself that the negotiation process and arrangements with the States and Territories result in a fair and equitable system for the provision of legal aid services.

Footnotes

[17] Evidence, Hon Ray Groom, p. 583.

[18] Portfolio Budget Statements 1997-98: Attorney General's Portfolio (Budget Related Paper No. 1.1), pp. 94-95.

[19] Evidence, Attorney-General's Department, Legal & Constitutional Legislation Committee, Consideration of Estimates, 12 May 1997, p. 20.

[20] "NSW legal aid goes it alone", Sydney Morning Herald, 4 June 1997, p. 4.