Legal aid and legal assistance services

Budget Review 2016–17 Index

Jaan Murphy and Michele Brennan

Legal aid services: Commonwealth funded legal services are delivered by state and territory legal aid commissions through the National Partnership Agreement on Legal Assistance Services and the Expensive Commonwealth Criminal Cases Fund.

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 and family violence prevention legal services.


Funding for legal assistance services in the 2016–17 Budget is generally consistent with recent trends. Funding for legal aid commissions returns to recent levels, after taking account of large (but temporary) additional funding provided in the 2011–12 to 2013–14 Budgets.[1] Determining the long-term trend in funding for Indigenous legal aid is difficult, due to program amalgamation and name changes.

Changes to funding arrangements for legal aid services and legal assistance services

The Australian Government provides funding to the states and territories for the delivery of legal assistance services for disadvantaged Australians through the National Partnership Agreement on Legal Assistance Services (NPALAS), which expires on 30 June 2020.[2] Unlike the previous Agreement, which only covered legal aid services, the current NPALAS also provides funding for CLCs.[3]

In 2016–17 the Australian Government will provide $257.1 million funding for legal aid services and legal assistance services through the NPALAS.[4] This is an increase of $6.2 million from 2015–16. The forward estimates indicate that funding will decrease by a total of $8.4 million over the 2016–17 Budget levels in 2017–18, before gradually increasing in 2018–19 and 2019–20 to a funding level $0.3 million less than that provided in the current budget for 2016–2017.[5]

Figure 1 below shows payments for the provision of legal aid services and community legal centres between 1999–2000 and 2019–2020.[6]

Figure 1: payments for the provision of legal aid services to states and territories

Figure 1: payments for the provision of legal aid services to states and territories

Source: Parliamentary Library estimates (See footnote 6).

Funding for legal aid commissions, in addition to that provided in NPALAS, may be allocated through the Expensive Commonwealth Criminal Cases Fund (ECCCF) which is administered by the Attorney-General’s Department (AGD).[7] This funding has increased by $0.81 million.[8] The funding provided in 2016–17 and over the forward estimates represents a return to levels similar to that provided prior to the 2011–12 Budget revisions (as discussed in Budget Review 2014–15)[9] as Table 2 below demonstrates.[10]

Table 1: Expensive Commonwealth Criminal Cases Fund amounts

(all figures in $’000)

2014-15
Budget

2015-16 Budget

2016-17 Budget

2017-18 Forward estimate

2018-19 Forward estimate

2019-20 Forward estimate

Expensive Commonwealth Criminal Cases Fund

2014-15 Budget

2,725

2,805

2,872

2,936

2015-16 Budget

7,925*

3,794

3,853

2,915

2,956

2016-17 Budget

3,794*

4,610

3,682

3,733

3,784

Change: 2015-16 to 2016-17

N/A

+0

+757

+767

+777

*Estimated actual from relevant Portfolio budget statements.[11]

Source: J Murphy, ‘Legal aid and legal assistance services, Budget review 2014–15, Research paper series, 2013-14, Parliamentary Library, Canberra, 2014.

In addition to general CLC funding, in 2015–16 and 2016–17 the NPALAS will also provide targeted funding totalling $37.6 million to specific CLCs.[12] This funding appears to reflect the Government’s 26 March 2015 decision to reverse cuts to the legal assistance sector, which had been proposed in the 2014–15 Budget and were due to commence from 1 July 2015.[13] This additional funding will not continue past 30 June 2017, which will result in funding to CLC’s under the NPALAS dropping from $45.9 million in 2016–17 to $34.5 million in 2017-18, a decrease of 25 per cent.[14] Over the three years 2017–18 to 2019–20, the funding decrease will see CLCs receive $30.6 million less than if funding was maintained at 2016–17 levels.

Indigenous legal assistance services

As noted in Budget Review 2014–15, changes to some Indigenous program names, their transfer to the Department of the Prime Minister and Cabinet, subsequent consolidation and the lack of detail in relevant portfolio budget papers makes assessing long-term funding trends difficult.[15]

The funding commitments for the Indigenous Legal Assistance Program (previously named the Indigenous Legal Aid Policy Reform Program[16]) are detailed in the following table:

Table 2: funding commitments for the Indigenous Legal Assistance Program

(all figures in $’000)

2014-15 Budget

2015-16
Budget

2016-17 Budget

2017-18 Forward estimate

2018-19 Forward estimate

2019-20 Forward estimate

Indigenous Legal Assistance Program

2014-15 Budget

74,311

66,552

67,599

68,780

2015-16 Budget

74,311*

72,387

73,731

69,303

69,265

2016-17 Budget

72,387*

73,585

69,099

68,992

69,890

Change: 2015-16 to 2016-17

N/A

0

-146

-204

-273

* Estimated actual from relevant Portfolio budget statements.[17]

Source: J Murphy, ‘Legal aid and legal assistance services’, Budget review 2015–16, Research paper series 2014-15, Parliamentary Library, Canberra, May 2015.

This would tend to indicate that funding for at least some Indigenous legal aid programs will decrease slightly in 2016–2017, with further decreases from 2017–18 onwards. The estimated actual amount spent on the Indigenous Legal Assistance Program (then named the Indigenous Legal Aid Policy Reform Program[18]) in 2013–14 was $75 million.[19] Using that figure as a benchmark, funding will be 1.8 per cent less in 2016–17; 7.8 per cent less in 2017–18; eight per cent less in 2018–19 and 6.7 per cent less in 2019–20.

Domestic violence

In the Mid-Year Economic and Fiscal Outlook 2015–16, the Government announced the allocation of $101.2 million over four years for a Women’s Safety Package, aimed at addressing family violence.[20] This funding has been placed in the Contingency Reserve.[21] The Attorney-General advised that $15 million of this funding would be used to set up Specialist Domestic Violence Units in 12 CLCs across the country. [22] Four of these CLCs will also establish Health Justice Partnerships, to allow legal advice to be provided at partnered hospitals or health centres.[23]

In addition, the Government’s decision to reverse cuts to legal aid and legal assistance services that had been proposed in the 2014–15 Budget (discussed above) focused on ensuring appropriate resourcing to assist survivors of family violence.[24]

In the current Budget, the Government announced that an additional $100 million of funding would be provided over three years to develop ‘new initiatives to break the cycle’ of domestic violence.[25] This additional funding is not allocated to the Attorney-General’s portfolio and would therefore, on the face of the budget papers, appear not to include funding for legal assistance services. However, it has been reported that the Government has advised the National Association of Community Legal Centres that some of this funding may be allocated to the legal assistance sector, although the quantum and distribution of such funding has not yet been determined.[26] For further details please refer to ‘Domestic and family violence’ in this Budget Brief.

Access to justice arrangements inquiry

On 5 September 2014, the Productivity Commission (PC) released the report of its inquiry into Access to Justice Arrangements.[27] The PC recommended that government funding for civil legal assistance services ‘should be increased by around $200 million’.[28] The Government’s response to the PC report, released on 29 April 2016, does not respond to the recommendation to increase funding.[29] Accordingly, there is no additional funding provided in the Budget in response to the PC’s recommendation.

Reaction from stakeholders

The Law Council of Australia (LCA) expressed concern with the legal assistance service funding in the 2016–17 Budget, stating that ‘legal aid continues to be underfunded to the tune of hundreds of millions of dollars’ and:

The Law Council will now officially launch a campaign on legal aid funding, with rallies around the country during National Law Week (16-20 May).[30]

The LCA warned that ‘budgetary inaction on legal aid was a false economy’, pointing out that the PC report into access to justice arrangements had advised that ‘money invested in legal aid would yield substantial economic savings, a finding which has not been heeded’.[31]

The National Association of Community Legal Centres (NACLC) also noted that the Budget was ‘a missed opportunity to stop the funding cuts and ensure the most disadvantaged and vulnerable people across Australia have access to legal assistance’.[32] The NACLC welcomed the additional funding for family violence, but expressed disappointment that the ‘funding does not include funding for legal assistance services’.[33]

The National Aboriginal and Torres Strait Islander Legal Service (NATSILS) is ‘deeply concerned’ about funding cuts to the Aboriginal and Torres Strait Islander Legal Services (ATSILS) and the Indigenous Legal Assistance Program.[34] NATSILS warned that the funding cuts will ‘result in unavoidable withdrawals of frontline services’ and ‘impact the most vulnerable of the ATSILS’ clients, including victims of family violence, children, clients in remote and rural areas, clients with mental ill-health and cognitive impairments’.[35]

 



[1].          J Murphy, ‘Legal aid and legal assistance services, Budget review 2013–14, Research paper, 3, 2012–13, Parliamentary Library, Canberra, 2013, p. 59; Australian Government, Portfolio budget statements 2015–16: budget related paper no. 1.2: Attorney‑General's Portfolio, 2015, pp. 30-31; Australian Government, Budget measures: budget paper no. 2: 2015–16, 2015, p. 61.

[2].          Australian Government, National Partnership Agreement on Legal Assistance Services, clause 7; Australian Government, Federal financial relations: budget paper no. 3: 2016–17, 2016, p. 71.

[3].          Budget paper no. 2: 2015–16, op. cit., p. 61; Australian Government, Federal financial relations: budget paper no. 3: 2015–16, 2015, pp. 3, 72; Budget paper no. 3: 2016–17, op. cit., p. 71.

[4].          Budget paper no. 3: 2016–17, op. cit., pp. 68, 71.

[5].          Ibid.

[6].          For consistency, figures for 1994–1995 to 2007–2008 were drawn from the relevant Portfolio Budget Statements: see 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 2013–14 were drawn from the respective Final Budget Outcome papers, see Australian Government, Final budget outcome 2013–2014, p. 80. Figures from 2014–15 to 2018–19 were drawn from the respective Budget Measures paper, see Budget paper no. 3: 2015–16, op. cit., p. 72. Other sources provide figures that can differ substantially, see: J Murphy, ‘Legal aid and legal assistance services, Budget review 2013–14, op. cit., p. 61.

[7].          Attorney-General’s Department (AGD), ‘Expensive Commonwealth Criminal Cases Fund’, AGD website. Under the ECCCF, the AGD has discretion to provide additional funding to legal aid commissions for specific, complicated Commonwealth criminal cases, such as drug importation or criminal conspiracy cases.

[8].          Australian Government, Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney-General’s Portfolio, 2016, p. 19; Portfolio budget statements 2015–16, Attorney-General's Portfolio, op. cit., p. 30.

[9].          Jaan Murphy, ‘Legal aid and legal assistance services’, Budget review 2014–15, Research paper series, 2013–14, Parliamentary Library, Canberra, 2014, pp. 115–116.

[10].       For a discussion of the 2014–15 budget measure ‘Legal aid—withdrawal of additional funding’ see: J Murphy, ‘Legal aid and legal assistance services’, Budget review 2014–15, op. cit., p. 115.

[11].       Australian Government, Portfolio budget statements 2014–15: budget related paper no. 1.2: Attorney-General’s Portfolio, p. 29; Portfolio budget statements 2015–16, Attorney-General's Portfolio, op. cit., pp. 30-31; Portfolio budget statements 2016–17, Attorney-General’s Portfolio, op. cit., p. 19.

[12].       National Partnership Agreement on Legal Assistance Services, op. cit., Schedule C and Table 2, pp. 10–11.

[13].       G Brandis (Attorney-General) and M Cash (Minister Assisting the Prime Minister for Women), Legal aid funding assured to support the most vulnerable in our community, media release, 26 March 2015; Portfolio budget statements 2014–15, Attorney-General's Portfolio, op. cit., p. 29. For a discussion of the 2014–15 budget measure ‘Legal aid—withdrawal of additional funding’ see J Murphy, ‘Legal aid and legal assistance services’, Budget review 2014–15, op. cit., p. 115.

[14].       National Partnership Agreement on Legal Assistance Services, op. cit., Table 2, pp. 10–11.

[15].       J Murphy, ‘Legal aid and legal assistance services’, Budget review 2014–15, op. cit., p. 116 and sources cited therein.

[16].       J Murphy, ‘Legal aid and legal assistance services, Budget review 2015–16, Research paper series, 2014–15, Parliamentary Library, Canberra, 2015, p. 106 and sources cited therein.

[17].       Portfolio budget statements 2014–15, Attorney-General’s Portfolio, op. cit., p. 32; Portfolio budget statements 2015–16, Attorney-General's Portfolio, op. cit., p. 33; Portfolio budget statements 2016–17, Attorney-General’s Portfolio, op. cit., p. 20.

[18].       J Murphy, ‘Legal aid and legal assistance services’, Budget review 2015–16, op. cit., p. 106 and sources cited therein.

[19].       Portfolio budget statements 2014–15, Attorney-General’s Portfolio, op. cit., p. 32.

[20].       S Morrison (Treasurer) and M Cormann (Minister for Finance), Mid-year economic and fiscal outlook 2015–16, December 2015, p. 218.

[21].       Senate Legal and Constitutional Affairs Legislation Committee, Budget Estimates 2015–16, 5 May 2016[to be published].

[22].       G Brandis (Attorney-General), Women's safety package legal support providers, media release, 16 October 2015.

[23].       Ibid.

[24].       G Brandis (Attorney-General) and M Cash (Minister Assisting the Prime Minister for Women), Legal aid funding assured to support the most vulnerable in our community, op. cit. See footnote 13 for further information.

[25].       Australian Government, Budget measures: budget paper no. 2: 2016–17, 2016, p. 141.

[26].       F Kelly, ‘Glimmer of hope for Australia's community legal centres’, RN Breakfast, Radio National, Australian Broadcasting Corporation (ABC), 5 May 2016.

[27].       Productivity Commission (PC), Access to justice arrangements: inquiry report, PC, Canberra, 5 September 2014.

[28].       Ibid., vol. 1, Recommendation 21.4, p. 38 and vol. 2, p. 741.

[29].       G Brandis (Attorney-General), Response to the Productivity Commission's Report into Access to Justice Arrangements, media release, 29 April 2016.

[30].       Law Council of Australia (LCA), Budget does nothing to address crisis in legal aid, media release, 3 May 2016.

[31].       Ibid.

[32].       National Association of Community Legal Centres, Budget cuts to legal assistance services hit vulnerable hardest, media release, 3 May 2016.

[33].       Ibid.

[34].        National Aboriginal and Torres Strait Islander Legal Service (NATSILS), Budget 2016-17 denies many Aboriginal and Torres Strait Islander people access to justice, media release, 3 May 2016. 

[35].       Ibid.

 

All online articles accessed May 2016. 

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