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 (NPALAS) 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
Partnership Agreement on Legal Assistance Services (NPALAS). The
current NPALAS commenced on 1 July 2015 and expires on 30 June 2020.[1] Unlike its
predecessor, which only covered legal aid services, the current NPALAS also provides
funding for community legal centres (CLCs).[2]
In 2017–18 the Australian Government will provide
$261.5 million funding for legal aid services and CLCs through the NPALAS.[3] This is an
increase of $4.4 million from 2016–17. The forward estimates (to 2019–20)[4] indicate that
funding will then increase by another $4.4 million to $265.9 million in
2018–19, before increasing by $4.1 million in 2019–20 to $270 million. 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 NPALAS (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.[5] From 2015–16 the funding
reflects the current NPALAS.
Figure 1:
payments for the provision of legal aid services to states and territories
Source: Parliamentary Library estimates (See footnote 5).
ECCCF funding
Funding for legal aid commissions is also provided through the
ECCCF.[6] This funding has decreased
by $0.94 million.[7] The funding provided in
2017–18 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).[8] Table 1 shows ECCCF
funding over the forward estimates.[9]
Table 1: Expensive Commonwealth
Criminal Cases Fund amounts
| (all
figures in $’000) |
2015–16
Budget |
2016–17
Budget |
2017–18
Forward
estimate |
2018–19
Forward
estimate |
2019–20
Forward
estimate |
2020–21
Forward
estimate |
Expensive
Commonwealth
Criminal Cases
Fund |
2015–16
Budget |
3,794 |
3,853 |
2,915 |
2,956 |
— |
|
| 2016–17
Budget |
3,794* |
4,610 |
3,682 |
3,733 |
3,784 |
|
| 2017–18
Budget |
|
4,610* |
3,675 |
3,722 |
3,769 |
3,799 |
Change:
2016–17
to 2017–18 |
N/A |
0 |
-7 |
-11 |
-15 |
N/A |
*Estimated actual from relevant Portfolio budget statements.
Source: as per footnote 9.
Community legal centre funding
The Australian Government provides funding for CLCs through
the NPALAS and the ‘Justice Services’ program in
the AGD.
As discussed above, the current NPALAS includes funding for
CLCs. This means that from 2015–16 the majority of funding for CLCs will be provided
through the NPALAS. Prior to this, the majority of CLC funding was provided
through the AGD.[10]
On 24 April 2017, the Government announced an additional $39 million for CLCs to be delivered through the NPALAS (the
allocation of which is be finalised with the states and territories). However,
that funding needs to be assessed in the context of previously announced
reductions in CLC funding, which had been due to commence on 1 July 2017.[11]
Under the NPALAS, over the three years 2017–18
to 2019–20, CLC funding would have been $30.6 million less than if funding was
maintained at 2016–17 Budget levels.[12] Accordingly, the
additional $39 million for CLCs announced by the Government may be regarded as
largely representing a reversal of the forecast $30.6 million reduction, with a
modest additional increase of $8.4 million over three years (around 5.8 per cent
of total NPALAS CLC funding over that period).[13]
AGD ‘Justice Services’ funding
Due to the redirection of CLC funding through
the NPALAS, the amount of CLC funding delivered by the AGD has decreased. However, the forecast CLC funding provided through the AGD over
the forward estimates shown in the 2017–18 Budget is higher than was forecast
in the 2015–16 Budget, as Table 2 below demonstrates.[14] This year’s forecast shows
CLC funding provided through the AGD increasing by 13 per cent
($1.2 million) between 2017–18 and 2018–19, before dropping by 71 per cent
($7.2 million) in 2019–20.[15]
Table 2: funding for CLCs provided
through the AGD
| (all
figures in $’000) |
2014–15
Budget |
2015–16
Budget |
2016–17
Budget |
2017–18
Budget |
2018–19
Forward
Estimate |
2019–20
Forward
Estimate |
2020–21
Forward
Estimate |
Community
legal services |
2015–16
Budget |
42,819* |
4,334 |
2,918 |
2,638 |
2,638 |
|
|
2016–17
Budget |
|
9,254* |
7,906 |
7,704 |
2,627 |
2,661 |
|
2017–18
Budget |
|
|
8,016* |
8,989 |
10,185 |
2,991 |
3,179 |
Change:
2016–17 to
2017–18 |
N/A |
N/A |
110 |
1,285 |
7,558 |
330 |
N/A |
*Estimated actual from relevant Portfolio budget statements. Source:
as per footnote 14.
Total CLC funding
The figure below shows Commonwealth recurrent spending on
CLCs from 2005–06 to 2019–20.[16] The figures from 2015–16
onwards include funding provided through the AGD and funding provided under the
NPALAS.[17]
Figure 2: CLC funding
Source: Parliamentary Library estimates (See footnote 17).
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.[18] The funding commitments
for the Indigenous Legal Assistance Program ((ILAP), previously named the
Indigenous Legal Aid Policy Reform Program),[19] are detailed in the
following table:
Table 3: funding commitments for
the Indigenous Legal Assistance Program
| (all
figures in $’000) |
2015–16
Budget
|
2016–17
Budget |
2017–18
Forward
estimate |
2018–19
Forward
estimate |
2019–20
Forward
estimate |
2020–21
Forward
estimate |
Indigenous
Legal
Assistance
Program |
2015–16
Budget |
72,387 |
73,731 |
69,303 |
69,265 |
— |
— |
| 2016–17
Budget |
72,387* |
73,585 |
69,099 |
68,992 |
69,890 |
— |
| 2017–18
Budget |
|
73,585* |
74,463 |
74,365 |
75,276 |
70,173 |
| Change:
2016–17 to 2017–18 |
N/A |
0 |
5,364 |
5,373 |
5,386 |
N/A |
* Estimated actual from relevant portfolio budget statements.[20]
Source: as per footnote 20.
These figures indicate that funding for at
least some Indigenous legal assistance programs will increase slightly in
2017–2018, with funding remaining relatively stable between 2018 and 2020 before
decreasing in 2020–21 to funding levels similar to 2015–16, but below the $75
million estimated actual in 2013–14.[21]
The estimated amount spent on the ILAP in
2013–14 was $74.9 million.[22] Using that figure as a
benchmark, the 2016–17 Budget indicated that funding for the ILAP would be 1.8 per cent ($1.3 million) less in 2016–17; 7.8 per cent ($5.8
million) less in 2017–18; eight per cent ($5.9 million) less in 2018–19 and 6.7
per cent ($5 million) less in 2019–20. Over the period 2017–18 to 2019–20, this
would have been a cut of $16.7 million—the same amount of additional funding
for Aboriginal and Torres Strait Islander Legal Services recently
announced by the Government and reflected in the budget papers.[23]
Domestic violence
The previous Budget Review discussed funding
initiatives announced in the last budget aimed at addressing family violence.[24]
In announcing the additional $39 million of
funding for CLCs to be delivered through the NPALAS (discussed
above), the Government indicated that funding was intended to ‘prioritise
frontline family law and family violence services’.[25]
The budget papers state that the funding will ‘provide
support for victims of domestic violence’.[26]
In addition, $3.4 million in funding over two
years from 2017–18 is being provided to expand the trial of Domestic Violence
Units (DVUs) in legal centres around Australia.[27]
The DVUs will provide legal and other assistance (such as financial counselling,
tenancy assistance, trauma counselling, emergency accommodation, family law
services and employment services) to women who are experiencing, or at risk of,
domestic or family violence. The locations of the DVUs will be determined based
on areas of need, in consultation with state and territory governments.
The Government will also spend $7.5 million
over four years to conduct trials to test new technologies or innovative uses of
existing technologies to improve the safety of women and children affected by family
and domestic violence.[28]
Reaction from
stakeholders
The Law Council of Australia (LCA) welcomed
the ‘reversal of cuts’ to CLCs and ATSILS but also stated:
Yet the legal assistance sector still remains
critically underfunded. The Productivity Commission has recommended an
additional $200 million in legal assistance funding, noting that without legal
intervention the problems of individuals often spiral out of control, creating
larger financial and social costs to the community ... the Law Council will
continue to advocate to end the under funding of legal aid, a crisis that is
causing untold damage to the lives of many Australians.[29]
The National Association of Community Legal
Centres (NACLC) also welcomed the increased funding to CLCs and but also noted:
This Budget addresses the immediate funding
crisis for most CLCs, but there is more work to do ... in ensuring increased,
secure and long-term funding for the legal assistance sector. There is more
work to do with Government towards a fairer society where anyone can receive
legal help when they need it, not just when they can afford it.[30]
Whilst the NACLC welcomed the additional
funding for family violence, it also expressed disappointment, stating that the
Budget was ‘a missed opportunity to invest in putting an end to family violence
against Aboriginal and Torres Strait Islander women’.[31]
The National Aboriginal and Torres
Strait Islander Legal Service (NATSILS) welcomed ‘the Federal Government’s
decision to overturn $16.7 million in cuts over the forward estimates to
ATSILS’ but noted:
The Government must take further action aimed directly toward
ensuring incarceration rates for Aboriginal and Torres Strait Islander people
do not continue to soar as they have done over the past years.[32]
It appears that none of the measures outlined in this Budget
Review will require non-appropriations related legislation.
[1].
Council of Australian Governments (COAG), National Partnership Agreement on Legal
Assistance Services, [2016].
[2].
J Murphy and M Brennan, ‘Legal
aid and legal assistance services’, Budget review 2016–17, Research paper
series, 2015–16, Parliamentary Library, Canberra, 2016, p. 75; COAG, National Partnership Agreement on Legal Assistance
Services, [2010].
[3].
Australian Government, Federal
financial relations: budget paper no. 3: 2017–18, 2017, pp. 64, 67.
[4].
The forward estimates do not include figures for 2020–21, reflecting
the expiry of the NPALAS on 30 June 2020.
[5].
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 2014–15 were drawn from the
respective Final Budget Outcome papers: see Australian Government, Final
budget outcome 2014–2015, 2015, p. 77. Figures from 2015–16 to 2020–21
were drawn from COAG, National Partnership Agreement on Legal
Assistance Services, [2016], pp. 10–11 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.
[6].
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.
[7].
Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney-General’s
Portfolio, op. cit., p. 19.
[8].
J Murphy, ‘Legal
aid and legal assistance services’, Budget review 2014–15, Research
paper series, 2013–14, Parliamentary Library, Canberra, 2014, pp. 115–116.
For a discussion of the 2014–15 budget measure ‘Legal aid—withdrawal of
additional funding’ see: J Murphy, ‘Legal
aid and legal assistance services’, op. cit., p. 115; Portfolio budget statements 2015–16: budget related paper no. 1.2:
Attorney–General's Portfolio, op. cit., p. 30; Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, op. cit., p. 19
[9].
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; Australian Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, 2016, p. 19; Australian Government, Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney‑General's
Portfolio, 2017, p. 19.
[10].
Australian Government, Portfolio budget statements 2015–16: budget related paper no. 1.2:
Attorney-General's Portfolio, pp. 19, 30.
[11].
G Brandis (Attorney-General), M Cash (Minister for Women) and N Scullion
(Minister for Indigenous Affairs), Record
federal funding for legal assistance, media release, 24 April 2017. See
also: J Murphy and M Brennan, ‘Legal
aid and legal assistance services’, op. cit., for more
details about CLC funding under the NPALAS.
[12].
COAG, National Partnership Agreement on Legal
Assistance Services, [2010], pp. 10–11.
[13].
For details about the forecast CLC funding cuts see: J Murphy and M
Brennan, ‘Legal
aid and legal assistance services’, op. cit., pp. 76–77.
[14].
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; Australian Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, 2016, p. 19; Australian Government, Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney‑General's
Portfolio, 2017, p. 19
[15].
Australian Government, Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney‑General's
Portfolio, 2017, p. 19.
[16].
The forward estimates do not include figures for 2020–21, reflecting the
expiry of the NPALAS on 30 June 2020, and hence figures for 2020–21 are not
included.
[17].
For consistency, figures for 2005–2006 to 2015–16 were drawn 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], pp. 10–11 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, Australian
Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, p. 19.
[18].
Murphy, ‘Legal
aid and legal assistance services’, Budget review 2014–15, op. cit.,
p. 116 and sources cited therein.
[19].
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.
[20].
Australian Government, Portfolio
budget statements 2014–15: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 32; Portfolio budget statements 2015–16: budget related paper no. 1.2:
Attorney-General's Portfolio, op. cit., p.
33; Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's
Portfolio, op. cit., p. 20.
[21].
Murphy, ‘Legal
aid and legal assistance services’, op. cit., p. 106 and sources
cited therein; Portfolio
budget statements 2014–15: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 32. Figures based on spending on the Indigenous
Legal Assistance Program, previously named the Indigenous Legal Aid Policy
Reform Program.
[22].
Portfolio
budget statements 2014–15: budget related paper no. 1.2: Attorney-General's
Portfolio, op. cit., p. 32; Murphy, ‘Legal aid and legal assistance services’, op.
cit., p. 106 and sources cited therein.
[23].
Brandis et al, Record
federal funding for legal assistance, op. cit.
[24].
Murphy and Brennan, ‘Legal
aid and legal assistance services’, op. cit., pp. 77–78; S Morrison
(Treasurer) and M Cormann (Minister for Finance), Mid-year
economic and fiscal outlook 2015–16, December 2015, p. 218.
[25].
Brandis et al, Record
federal funding for legal assistance, op. cit.
[26].
Budget
measures: budget paper no. 2: 2017–18, op. cit., p. 66.
[27].
Ibid., p. 71.
[28].
Budget
measures: budget paper no. 2: 2017–18, op. cit., pp. 66, 71; Federal
financial relations: budget paper no. 3: 2017–18, op. cit., p. 41.
[29].
Law Council of Australia (LCA), Budget
shows Gov listening to legal profession, but more work needed to end justice
funding crisis, media release, 9 May 2017.
[30].
National Association of Community Legal Centres, Pillars of legal assistance sector welcome Budget lifeline but more
work to do, media release, 9 May 2017.
[31].
Ibid.
[32].
National Aboriginal and Torres Strait Islander Legal Service (NATSILS), Budget
2017–18 recognises the need to restore funding to Aboriginal and Torres Strait
Islander Legal Services, but there is still a long way to go, media
release, 9 May 2017.
All online articles accessed May 2017.
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