Budget Review 2020–21 Index
Jaan Murphy
Legal aid services: Commonwealth
funded legal services are delivered by state and territory legal aid
commissions through the National Legal Assistance Partnership (NLAP) 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
Legal Assistance Partnership (NLAP). The NLAP commenced on
1 July 2020 and expires on 30 June 2025 (NLAP,
clause 12). Like its predecessor (the National
Partnership Agreement on Legal Assistance Services (NPALAS)) the NLAP covers
legal aid services and provides funding for community legal centres (CLCs).[1]
Prior to 2015, the legal
assistance partnership agreement between the Commonwealth and the states
and territories only covered legal aid services.
In 2020–21 the Australian Government will provide $299.2
million base funding for legal aid services and CLCs through the NLAP (NLAP,
p. 13). This is an increase of $29.2 million on the base funding provided
through the NPALAS in 2019–20 (Federal
Financial Relations: Budget Paper No. 3: 2020–21, p. 69, Final
Budget Outcome 2019–20, p. 78). Funding provided through the NLAP will
then increase each year in the forward estimates as shown in Table 1 below.
Table 1: NLAP funding for legal aid
services and CLCs
Year (all figures in
$ million) |
NLAP funding for legal aid services and CLCs |
Increase from previous year base funding under National
Partnership Agreement |
2020–21 |
$299.2* |
$29.2** |
2021–22 |
$303.8 |
$4.6 |
2022–23 |
$308.3 |
$4.6 |
2023–24 |
$313.8 |
$5.0 |
* Includes
Social and Community Services (SACS) funding (NLAP,
p. 13; Budget
Paper No. 3: 2020–21, p. 69).
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 NLAP (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.[2] From 2015–16 the funding
reflects the NPALAS, and from 2020–21 the funding reflects the NLAP.
Figure 1:
payments for the provision of legal aid services to states and territories
(non-adjusted figures)
Source: Parliamentary Library estimates (see footnote 2).
ECCCF funding
Funding for legal aid commissions is also provided through the
ECCCF. Legal aid commissions can apply for funding under the ECCCF when defending
clients in high cost Commonwealth criminal matters such as drug importation,
people smuggling, terrorism, fraud and slavery (AGD, ‘Expensive
Commonwealth Criminal Cases Fund’).
ECCCF funding will be stable over the forward estimates
period and represents an increase to levels of funding from the 2017–18 Budget
onwards. Table 2 shows ECCCF funding over the forward estimates.[3]
Table 2: Expensive Commonwealth
Criminal Cases Fund amounts
(all figures in
$’000) |
2017–18
Budget
|
2018–19
Budget
|
2019–20
Budget
|
2020–21
Budget
|
2021–22 Forward estimate |
2022–23 Forward estimate |
2023–24 Forward estimate |
Expensive
Commonwealth Criminal Cases Fund |
2017–18
Budget
|
3 675 |
3 722 |
3 769 |
3 799 |
N/A |
N/A |
N/A |
2018–19
Budget
|
|
3722 |
3765 |
3799 |
3852 |
N/A |
N/A |
2019–20
Budget
|
|
|
7966 |
nil |
nil |
nil |
N/A |
2020–21
Budget
|
|
|
|
8101 |
8174 |
8276 |
8392 |
* estimated actual from relevant Portfolio budget statements Source: as per footnote 3.
Community legal centre funding
The Australian Government provides funding for CLCs through
the NLAP and the ‘Justice Services’ program in the
AGD.
As discussed above, as with the NPALAS, the NLAP includes
funding for CLCs. This means that since 2015–16 the majority of funding for
CLCs has been provided through the NPALAS and now the NLAP. Prior to 2015–16 the
majority of CLC funding was provided through the AGD (Portfolio
budget statements 2015–16: budget related paper no. 1.2: Attorney-General's
Portfolio, pp. 19, 30).
CLC NLAP funding
In 2020–21 the Australian Government will provide $55
million funding for CLCs through the NLAP. This is an increase of $4.89 million
on the funding provided through the NPALAS in 2019–20 (NLAP,
p. 13). Funding provided through the NLAP will then increase each year in the
forward estimates shown in Table 3 below.
Table 3: NLAP funding for CLCs
Year (all figures in $ million) |
NLAP
funding for CLCs |
Increase |
2020–21 |
55.0* |
4.9 |
2021–22 |
55.9 |
0.9 |
2022–23 |
56.7 |
0.8 |
2023–24 |
57.6 |
0.9 |
* Includes SACS funding. Source: NLAP,
p. 13; Final
Budget Outcome 2019–20, p. 78.
AGD ‘Justice Services’ funding
Due to the redirection of CLC funding through
the NPALAS and its replacement, the NLAP, the amount of CLC funding delivered
by the AGD directly has decreased. The forecast CLC funding provided
through the AGD over the forward estimates shown in the 2020–21 Budget is consistent
with the figures forecast in the 2019–20 Budget, as Table 4 below demonstrates.[4]
This year’s forecast shows CLC funding provided through the
AGD increasing slightly over the forward estimates (Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 25).
Table 4: funding for CLCs provided
through the AGD
(all figures in $’000) |
2017–18
Budget
|
2018–19
Budget
|
2019–20
Budget
|
2020–21
Budget
|
2021–22 Forward estimate |
2022–23 Forward estimate |
2023–24 Forward estimate |
Community legal services |
2017–18
Budget
|
8 989 |
10 185 |
2 991 |
3 179 |
N/A |
N/A |
N/A |
2018–19
Budget
|
|
10 185 |
2 988 |
3 179 |
3 223 |
N/A |
N/A |
2019–20
Budget
|
|
|
2 647 |
3124 |
3 172 |
3 238 |
N/A |
2020–21
Budget
|
|
|
2 913* |
3 118 |
3 147 |
3 199 |
3 244 |
*Estimated actual from relevant Portfolio budget statements. Source:
as per footnote 4.
Total CLC funding
The figure below shows Commonwealth recurrent spending on
CLCs from 2005–06 to 2023–24. The figures from 2015–16 onwards include funding
provided through the AGD and funding provided under the NPALAS, and from 2020–21
the funding reflects the NLAP and funding provided through the AGD.[5]
Figure 2: total Commonwealth
funding for CLCs (non-adjusted figures)
Source: Parliamentary Library estimates (see footnote 5).
Indigenous legal assistance
services
As noted in Budget
Review 2014–15 (p. 116), 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. The relevant
portfolio budget statements note that funding for the Indigenous Legal
Assistance Program transfers to the Department of Treasury from the 2020–21
Budget onwards and is included in the NLAP as the Aboriginal and Torres Strait
Islander Legal Services (ATSILS) program.[6]
The funding commitments for the Indigenous Legal Assistance
Program (ILAP), (previously named the Indigenous Legal Aid Policy Reform
Program, Budget
Review 2015–16, p. 106), and the ATSILS component
of the NLAP are detailed in the following table:
Table 5: funding commitments for
the Indigenous legal assistance programs
(all
figures in $’000) |
2017–18
Budget
|
2018–19
Budget
|
2019–20
Budget
|
2020–21
Budget
|
2021–22 Forward estimate |
2022–23 Forward estimate |
2023–24 Forward estimate |
2024–25
NLAP |
Indigenous
Legal Assistance Program/ Aboriginal
and Torres Strait Islander Legal Services component of NLAP. |
2017–18 Budget |
74 463 |
74 365 |
75 276 |
70 173 |
N/A |
N/A |
N/A |
N/A |
2018–19
Budget
|
|
74 365 |
75 202 |
70 173 |
71 155 |
N/A |
N/A |
N/A |
2019–20 Budget |
|
|
75 202 |
Nil |
Nil |
Nil |
Nil |
N/A |
2020–21 Budget/ NLAP |
|
|
77 690* |
85 307** |
86 683 |
88 202 |
89 612 |
91 046 |
* Estimated actual from portfolio budget statements.[7]
** Includes SACS supplementation. Source: as per footnotes 6 and 7.
Funding for the ATSILS
component of the NLAP represents an increase on funding provided previously
under the ILAP, with funding for 2020–21 increasing $10.1 million over 2019–20
levels. Funding for 2024–25, the last year of the NLAP, increases by a further
$5.7 million over 2020–21 levels. This represents a $15.8 million increase on
2019–20 funding levels.[8]
The relevant portfolio budget statements note
that funding for the ILAP transfers to the Department of Treasury from the 2020–21
Budget onwards and is included in the NLAP (Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, pp. 27, 29).[9]
Other legal
assistance related measures
In addition to the above long-term programs
and funding arrangements, the Budget includes additional legal assistance
related measures.
Domestic violence
services
This year’s Budget contains various funding
commitments related to domestic violence services. The Budget continues funding
for Domestic Violence Units (DVUs) – first established in 2016 (Budget Review 2016–17, p. 92) –in legal centres around Australia. DVUs and health justice
partnerships provide legal assistance and other forms of support to women
experiencing or at risk of domestic violence, including financial counselling, tenancy
assistance, trauma counselling, emergency accommodation, family law services
and employment services (NLAP,
p. 17; Budget Review 2016–17, p. 92; G Brandis (Attorney-General), Turnbull
Government funds new domestic violence units, media release, 16 October
2017).
Previously most DVU/health justice partnership
funding was directly administered by the Attorney-General’s Department. From
2020–21 onwards however, funding will be moved to the NLAP and the states and
territories will allocate Commonwealth funding to all currently funded legal assistance
providers for the delivery of existing DVUs and/or health justice partnerships.
NLAP funding for DVUs and health justice partnerships increases from $9.9
million in 2020–21 to $10.6 million in 2024-25 (NLAP, pp. 13, 17; Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 26; Budget
Paper No. 3, p. 69).
COVID-19 related
legal assistance measures
This year’s Budget contains a number of legal
assistance related initiatives as part of the Government’s response to COVID-19
including:
- $49.8 million over two years from 2019–20 for
additional legal assistance services for families and children experiencing
hardship
- $13.5 million in 2019–20 to allow legal assistance
providers to deliver services virtually to the community in response to the
impact of COVID-19 and
- $6.2 million over four years from 202021 to assist
the states and territories in administering the NLAP (Budget
Measures: Budget Paper No. 2: 2020–21, pp. 210–211).
Bushfire related
legal assistance measures
This year’s Budget contains a number of legal
assistance related initiatives as part of the Government’s response to the
2019–20 bushfires including:
- $5.2 million for legal assistance to individuals
residing in bushfire affected Local Government Areas (LGAs) and
- $3.5 million for legal assistance to businesses in
bushfire affected LGAs ((Budget
Paper No. 2, p. 218).
Reaction from
stakeholders
The Law Council of Australia (LCA) expressed disappointment
that there was no additional funding for the legal assistance sector in
addition to the funds previously announced following the bushfires and COVID-19.
The LCA further
argued that the ‘legal assistance sector has been chronically underfunded
for years by successive governments’ and that the Budget represented a failure
to adequately fund the sector.
The National Aboriginal and Torres Strait
Islander Legal Services (NATSILS) stated that the ‘Federal Budget shows the only
national dedicated program to ending the disadvantage of Indigenous people in
the justice system has been abolished, replaced with the mainstream National Legal
Assistance Partnership’.
NATSILS further argues that the budget provides ‘no additional
funding for legal assistance services’ and ‘no additional money to Aboriginal
and Torres Strait Islander Legal Services’.
[1]. M Brennan and J Murphy, ‘Legal
aid and legal assistance services’, Budget review 2018–19, Research paper
series, 2017–18, Parliamentary Library, Canberra, 2018, p. 57.
[2].
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 2019–20
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. Figures
from 2020–21 to 2024–25 were drawn from, National
Legal Assistance Partnership, op. cit., p. 13 and Budget
Paper No. 3: 2020–21 ,op. cit.,
p. 69 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.
[3].
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; Australian Government, Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio , p. 24; Australian Government, Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio , p. 25.
[4].
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; Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 24; Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 25.
[5].
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. Figures from 2020–21 to 2024–25 were
drawn from Attorney-General's Department (AGD), National
Legal Assistance Partnership, [2020], p. 13; Budget
Paper No. 3: 2020–21, op. cit., p. 69 and Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 25 and calculated on the basis of the funding allocated for ‘Community Legal Services Program’, and CLC-specific
funding in the NLAP.
[6].
Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., pp. 25–26; Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., pp. 27, 29; National
Legal Assistance Partnership, op. cit., p. 13; Budget
Paper No. 3: 2020–21, op. cit., p. 69.
[7]. 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; Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 25; Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 27; National
Legal Assistance Partnership, op. cit., p. 13; Budget
Paper No. 3: 2020–21, op. cit., p. 69.
[8]. Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 25; Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 27; National
Legal Assistance Partnership, op. cit., p. 13; Budget
Paper No. 3: 2020–21, op. cit., p. 69.
[9].
Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., pp. 25–26; Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., pp. 27, 29.
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