Legal aid and legal assistance services

Budget Review 2015–16 Index

Jaan Murphy

Legal aid services: Commonwealth funded legal services delivered by legal aid commissions.

Legal assistance services: 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.

The Australian Government provides funding to the states and territories for the delivery of legal assistance services for disadvantaged Australians.[1]

Funding for legal assistance services in the 2015–16 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.[2] It is difficult to determine the long-term trend in funding for Indigenous legal aid, due to recent 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 aid services for disadvantaged Australians through the National Partnership Agreement on Legal Assistance Services (National Partnership), which was extended by one year to 30 June 2015.[3] The Government has stated it will negotiate a new National Partnership which, in addition to continuing to providing funding for legal aid services, will also ‘transfer Commonwealth funding for Community Legal Centres to the states’.[4]

In 2015–16 the Australian Government will provide $250.9 million funding for both legal aid services and legal assistance services through the new National Partnership.[5] Whilst this is an increase of $46.5 million from 2014–15, much of that increase appears to be attributable to the re-direction of funding previously provided to the Attorney-General’s Department (AGD) for community legal services to the states and territories via the new National Partnership. These had not previously been covered by the National Partnership agreement.[6] The forward estimates indicate that funding will increase by a total of $6.2 million over the 2015–16 Budget levels in 2016–17, before returning in 2017–18 and 2018–19 to a funding level similar to that provided in 2015-16.[7]

Figure 1 below shows payments for the provision of legal aid services to states and territories between 1994–1995 and 2018–2019, noting that the increase from 2015–16 is due in part to the expansion of the new National Partnership agreement to include funding for community legal services.[8]

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 8).

Funding appropriated to the AGD for legal aid commissions (programme 1.4 – ‘Justice Services’) has been renamed ‘Expensive Commonwealth Criminal Cases Fund’.[9] The decrease from 2015–16 is primarily due to a 2014–15 budget measure ‘Legal aid—withdrawal of additional funding’.[10] However, the funding provided in 2015–16 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) as the table below demonstrates.[11]

(all figures in $’000)
2013–14 Budget
2014–15 Budget
2015–16 Budget
2016–17 Forward estimate
2017–18 Forward estimate
2018–19 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
2015–16 Budget
7,925*
3,794
3,853
2,915
2,956
Change: 2014–15 to 2015-16
+5,200
+989
+981
-21
*Estimated actual from Portfolio budget statement 2015–16: Attorney-General’s Portfolio.[12]

In contrast to legal aid commissions, funding provided to the AGD for community legal services (programme 1.4 – ‘Justice Services’) is expected to drop sharply (compared with recent levels) as set out in the table below. However, the reason for the decrease given by the Government is that from 2015–16 ‘the majority of funding previously provided to the Department for community legal services will be provided through national partnership agreements with the states and territories’.[13]

(all figures in $’000)
2013–14 Budget
2014–15 Budget
2015–16 Budget
2016–17 Forward estimate
2017–18 Forward estimate
2018–19 Forward estimate
Community legal services 2013–14 Budget
39,361
39,543
40,266
41,001
2014–15 Budget
41,619
38,138
38,852
32,687
2015–16 Budget
42,819*
4,334
2,918
2,638
2,638
Change: 2014–15 to 2015–16
+1,200
-33,804
-35,934
-30,049
*estimated actual from Portfolio budget statement 2015–16: Attorney-General’s Portfolio.[14]

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]

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 the 2014–15 and 2015–16 Budget are treated as equivalent and compared in the following table:

(all figures in $’000)
2013–14 Budget
2014–15 Budget
2015–16 Budget
2016–17 Forward estimate
2017–18 Forward estimate
2018–19 Forward estimate
Indigenous Legal Assistance Program 2013–14 Budget
73,844
75,226
71,940
73,235
2014–15 Budget
74,311
66,552
67,599
68,780
2015–16 Budget
74,311*
72,387
73,731
69,303
69,265
Change: 2014–15 to 2015–16
0
+5,835
+6,132
+523
* estimated actual from Portfolio budget statement 2015–16: Attorney-General’s Portfolio.[16]

This would tend to indicate that funding for at least some Indigenous legal aid programs will increase slightly, compared to previous budget trends.

Reaction from stakeholders

The Law Council of Australia (LCA) expressed mixed views over the 2015–16 Budget, stating that whilst the continued level of funding for legal assistance was welcomed ‘an absence of additional legal aid funding’ was disappointing and would ‘have an immediate impact on access to justice’.[17] Likewise the Law Society of Western Australia stated that whilst it welcomed the decision ‘not to make funding cuts to Legal Aid’ it was disappointed at ‘the lack of increases nationally’ that in its view will ‘put further pressure on Community Legal Centres and courts’.[18] The Australian Bar Association also expressed support for the ‘halt to legal aid funding cuts’ but noted that it was ‘deeply concerned’ about how money will be distributed under the new National Partnership Agreement and concluded that:

The reality is that the 2015 Budget failed to deliver the crucial reform and long term security of funding for justice we desperately need.[19]

In contrast, the Law Society of New South Wales offered qualified support for the 2015–16 Budget, noting that it had raised its concerns about the ‘under-resourcing of the legal assistance sector’ for some time, but was hopeful that ‘funds announced in the Budget indicate a willingness by the Federal Government to ensure adequate and ongoing funding for legal aid services more generally’.[20]

Reaction from the states and territories to the proposed changes to the quantum of funding and the funding arrangements for community legal services has been largely negative, with the attorneys-general from the ACT, New South Wales, Victoria, South Australia, Queensland and Tasmania expressing concern at the ‘significant reduction in the funding’.[21]



[1].         Australian Government, ‘National Partnership Agreement on Legal Assistance Services’, 2010, section 14, pp. 3–4.

[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.

[3].          Australian Government, Budget measures: budget paper no. 2: 2014–15, 13 May 2014, p. 61; ‘National Partnership Agreement on Legal Assistance Services’, op. cit., pp. 3, 7.

[4].          Australian Government, Budget measures: budget paper no. 2: 2015–16, 12 May 2015, p. 61; Australian Government, Federal financial relations: budget paper no. 3: 2015–16, 12 May 2015, pp. 3,72.

[5].          Budget paper no. 3: 2015–16, 12 May 2015, op. cit., pp. 70, 72.

[6].          Budget paper no. 2: 2015–16, op. cit., pp. 60, 61; Australian Government, Portfolio budget statements 2015–16: budget related paper no. 1.2: Attorney‑General's Portfolio, May 2015, p. 30; National Partnership Agreement on Legal Assistance Services’, op. cit., pp. 7-9.

[7]           Budget paper no. 3: 2015–16, op. cit., pp. 70, 72.

[8].          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, 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 and sources cited in footnote 184.

[9].          Budget paper no. 2: 2015–16, op. cit., p. 61; Portfolio budget statements 2015–16, Attorney‑General's Portfolio, May 2015, op. cit., pp. 30; 31.

[10].       Australian Government, Portfolio budget statements 2014-15: budget related paper no 1.2: Attorney-General’s Portfolio, 12 May 2014, p. 29; Budget paper no. 2: 2014–15, 12 May 2014, op. cit., p. 60.

[11].       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.

[12].       Australian Government, Portfolio budget statements 2013–14: budget related paper no 1.2: Attorney-General’s Portfolio, May 2013, p. 28; Portfolio budget statements 2014–15, Attorney-General’s Portfolio, op. cit., p. 29; Portfolio budget statements 2015–16, Attorney-General's Portfolio, op. cit., p. 30.

[13].       Portfolio budget statements 2015–16, Attorney-General's Portfolio, op. cit., pp. 19, 30.

[14].       Portfolio budget statements 2013-14, Attorney-General’s Portfolio, op. cit., p. 28; Portfolio budget statements 2014–15, Attorney-General’s Portfolio, op. cit., p. 29; Portfolio budget statements 2015-16, Attorney-General's Portfolio, op. cit., p. 30.

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

[16].       Portfolio budget statements 2014–15, Attorney-General’s Portfolio, op. cit., p. 30; Portfolio budget statements 2015–16, Attorney-General's Portfolio, op. cit., p. 33.

[17].       Law Council of Australia (LCA), Small business changes a boon for law practices, but legal aid freeze will hurt access to justice, media release, 13 May 2015.

[18].       Law Society of Western Australia, The Law Society of Western Australia responds to the State and Federal budgets, media release, 15 May 2015.

[19].       Australian Bar Association (ABA), ABA supports State & Territory calls to address inadequate legal aid ahead of Friday meeting in Canberra with AG, media release, 20 May 2015.

[20].       Law Society of New South Wales, Budget 2015: Law Society cautiously optimistic, media release, 13 May 2015.

[21].       Australian Broadcasting Corporation (ABC), ‘States and territories unite again over cuts to legal aid, community legal centre funding’, ABC website, 20 May 2015. Simon Corbell, MLA (ACT Attorney-General), State and Territory Attorneys-General protest funding cuts to community legal centres, media release, 20 May 2015.

 

All online articles accessed May 2015. 

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