Legal aid and legal assistance services

Budget Review 2014–15 Index

Jaan Murphy

The Government provides funding to the states and territories for the delivery of ‘legal assistance services’ for disadvantaged Australians. ‘Legal assistance services means all of the sector-wide legal service providers, including legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and family violence prevention legal services’.[1]

Funding for legal assistance services is generally consistent with recent trends. Funding for legal aid commissions is about 25% below recent historical trends, after taking account of recent large (but temporary) additional funding provided in the 2011–12 to 2013–14 Budgets.[2] It is difficult to determine the trend in funding for Indigenous legal aid, due to program amalgamation and name changes.

The Government provides funding to the states and territories for the delivery of legal aid services for disadvantaged Australians through the National Partnership Agreement on Legal Assistance Services, which has been extended (by one year) to 30 June 2015.[3] In 2014–15 the Government will provide $204.4 million funding for legal assistance services, an increase of $3.8 million from 2013–14. The forward estimates indicate that funding will increase by a total of $10.6 million over the 2014–15 Budget levels by 2017–18.[4]

Funding for legal aid commissions (programme 1.3 – ‘Justice Services’) is below trend, as set out in the table below. The decrease in 2014–15 is primarily due to the budget measure ‘Legal aid—withdrawal of additional funding’, which provides savings of about $15 million in 2014–15.[5] This measure partially reduces the $21 million of additional funding provided for 2014–15 in the 2013–14 Budget.[6] Whilst a decrease, it is a return to a similar level of funding as that provided to legal aid prior to the revisions in the 2011–12 Budget to include ‘additional funding for legal aid for people smuggling, national security and drug-related cases’.[7] Changes to the prosecution policy in relation to people smuggling introduced in August 2012, together with a decrease in the number of unauthorised boat arrivals, has resulted in a reduction in the number of people being prosecuted for people smuggling offences, which has led to a parallel decrease in the legal aid funding required in this area.[8]

(all figures in $’000)
2013–14
Budget
2014–15
Budget
2015–16
Forward estimate
2016–17
Forward estimate
2017–18
Forward estimate
Legal Aid Commissions 2013–14 Budget
25,782
18,745
3,812
3,881
2014–15 Budget
22,282*
2,725
2,805
2,872
2,936
  Change
-3,500
-16,020
-1,007
-1,009
*estimated actual from Portfolio budget statement 2014–15: Attorney-General’s Portfolio.[9] Sources: as per footnote 7.

The Law Council of Australia (LCA) and Law Institute of Victoria (LIV) have both expressed disappointment with the funding for legal aid commissions in the 2014–15 Budget, with the LCA expressing the view that:

... an additional $80 million in funding was required in tonight’s budget not a reduction of $15 million ... up to 1997, the Commonwealth contribution to Legal Aid Commission funding was 55 per cent – current funding stands at 35 per cent.[10]

In contrast to legal aid commissions, funding for community legal services’ (programme 1.3 – ‘Justice Services’) is expected to be broadly consistent with recent historical trends, as set out in the table below:

(all figures in $’000)
2013–14
Budget
2014–15
Budget
2015–16
Forward estimate
2016–17
 Forward estimate
2017–18
 Forward estimate
Community legal services 2013–14 Budget
39,361
39,543
40,266
41,001
2014–15 Budget
44,607*
41,619
38,138
38,852
32,687
  Change
+5,246
+2,076
-2,128
-2,149
*estimated actual.[11] Sources: as per footnote 9.

Program names for indigenous legal aid previously listed in Indigenous legal aid (programme 1.5 – ‘Indigenous Law and Justice’) have changed, making funding trends difficult to assess.[12] Also, responsibility for over 150 Indigenous programs is being transferred to the Department of the Prime Minister and Cabinet (to be consolidated into five programs).[13] Others have remained with the Attorney‑General’s Department.[14]

Due to the lack of detail in the portfolio budget papers of the Department of the Prime Minister and Cabinet, the fate of several programs is not apparent. However, some commentators and sector participants have expressed concern over decreased funding to Indigenous legal services.[15]

On the basis of the similarity in the size of the funding commitments, the Indigenous Legal Aid Policy Reform Program, funded in the 2013–14 Budget, and the Indigenous Legal Assistance Program in this Budget, are treated as equivalent and compared in the following table:

Indigenous Legal Aid Policy Reform Program/ Indigenous Legal Assistance Program
(all figures in $’000)
2013–14 Budget
2014–15
Budget
2015–16
Forward estimate
2016–17
Forward estimate
2017–18
Forward estimate
2013–14 Budget
73,844
75,226
71,940
73,235
2014–15 Budget
74,915*
74,311
66,552
67,599
68,780
Change
+1,071
-915
-5,388
-5,636

*estimated actual from 2014–15 Portfolio Budget Statements, p. 32.[16] Sources: as per footnote 14. This would tend to indicate that funding for at least some Indigenous legal aid programs may have remained broadly consistent with previous budget trends.

 


[1].         Australian Government, ‘National Partnership Agreement on legal assistance services’, Commonwealth of Australia, Canberra, 2010, section 14, p. 3, accessed 15 May 2014.

[2].          J Murphy, ‘Legal aid and legal assistance services’, Budget review 2013–14, Research paper, 3, 2012–13, Parliamentary Library, Canberra, May 2013, p. 59; Australian Government, Portfolio budget statements 2011–12: budget related paper no. 1.2: Attorney-General's Portfolio, 2011, pp. 30–31; Senate Legal and Constitutional Affairs Committee, Attorney-General’s Portfolio, Additional Estimates, 22 February 2011, pp. 105–110, all accessed 15 May 2014.

[3].          Australian Government, Budget measures: budget paper no. 2: 2014–15, 2014, p. 61; Australian Government, ‘National Partnership Agreement on legal assistance services’, op. cit., p. 3, all accessed 15 May 2014.

[4]           Australian Government, Federal financial relations: budget paper no. 3: 2014–15, 2014, p. 81, accessed 15 May 2014. This assumes that a new Agreement will be concluded between the Commonwealth and the states and territories.  

[5].          Australian Government, Portfolio budget statements 2014–15: budget related paper no 1.2: Attorney-General’s Portfolio, Canberra, 2014, p. 29, accessed 15 May 2014.

[6].          Budget measures: budget paper no. 2: 2014–15, op. cit., p. 60. The 2013–14 budget provided funding of $15.0 million to state and territory legal aid commissions and $6.0 million to the Aboriginal and Torres Strait Islander legal services in 2014–15: Australian Government, Budget measures: budget paper no. 2: 2013–14, 2013, p. 90, accessed 22 May 2014.

[7].          The 2010–11 Budget forecast that funding to legal aid commissions would be around $3.5 million in 2010–11 and for the forward estimates years to 2013–14: Australian Government, Portfolio budget statements 2010–11: budget related paper no. 1.2: Attorney‑General's Portfolio, 2010, p. 33, accessed 15 May 2014. In 2011–12, these figures were revised to $10.4 million for 2011–12, $10.6 million for 2012–13, $3.7 million for 2013–14 and $3.8 million for 2014–15: Portfolio budget statements 2011–12, budget related paper no. 1.2, Attorney-General's Portfolio, op. cit. p. 30–31; Senate Legal and Constitutional Affairs Committee, Attorney-General’s Portfolio, Additional Estimates, op. cit.

[8] .        Commonwealth Director of Public Prosecutions (CDPP), ‘People smuggling, CDPP website, accessed 22 May 2014; J Hockey (Treasurer), Budget speech 2014–15, accessed 22 May 2012.

[9].          Australian Government, Portfolio budget statements 2013­–14: budget related paper no 1.2: Attorney-General’s Portfolio, 2013, p. 28, accessed 15 May 2014; Portfolio budget statements 2014–15: budget related paper no. 1.2: Attorney-General’s Portfolio, op. cit., p. 29.

[10].       Law Institute of Victoria, Federal budget denies access to justice for Victorians, media release, 14 May 2014; Law Council of Australia, Chronically underfunded legal aid commissions suffer further cuts in federal budget, media release, 13 May 2014, both accessed 15 May 2014.

[11].       Portfolio budget statements 2014–15: Attorney-General’s Portfolio, op. cit., p. 29; Portfolio budget statements 2013–14: Attorney-General's Portfolio, op. cit., p. 28.

[12].       D Spooner, ‘Indigenous law and justice’, Budget review 2013–14, Research paper, 3, 2012–13, Parliamentary Library, Canberra, 2013, p. 149, accessed 16 May 2014.

[13]        Budget measures: budget paper no. 2: 2014–15, op. cit., p. 185. The following programs appear to have been transferred to the Department of the Prime Minister and Cabinet as part of that process: payments under the Indigenous Justice Programme, payments for the provision of Family Violence Prevention Legal Services for Indigenous Australia, and Stronger Futures in the Northern Territory—community safety and justice; Portfolio budget statements 2014–15: Attorney-General’s Portfolio, op. cit., p. 32. These programs were allocated a total of $60.8 million in 2013–14. In addition, $1.3 million was allocated for payments for Indigenous interpreter services in the Northern Territory (which, unlike the three programs listed above, is not listed in the 2014–15 Budget papers) Portfolio budget statements 2013–14: Attorney-General’s Portfolio, op. cit., p. 30.

[14].       Portfolio budget statements 2014–15: Attorney-General’s Portfolio, op. cit., pp. 29, 32; Australian Government, Portfolio budget statements 2014–15: budget related paper no. 1.14: Prime Minister and Cabinet Portfolio, May 2014, p. 39, accessed 15 May 2014.

[15].       ‘Cuts will hit Indigenous people hard’, The Australian, (online edition), 14 May 2014; M Coggan, ‘Indigenous groups fear impact of budget cuts’, The World Today, transcript, Australian Broadcasting Corporation, 15 May 2014; M Morgan, ‘Government to dramatically reduce Indigenous programs’, NITV News, transcript, Special Broadcasting Service, 14 May 2014; M Castan and S Gray, ‘2014 Castan Human Rights Report: indigenous rights – hastening too slowly’, Castan Centre for Human Rights Law weblog, 13 May 2014, all accessed 16 May 2014.

[16].       Portfolio budget statements 2014–15: Attorney-General’s Portfolio, op. cit., pp. 29–30, 32; Australian Government, Portfolio Additional Estimates statements 2013–14, Attorney-General’s Portfolio, 2013, p. 30, all accessed 15 May 2014.

 

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