Legal aid and legal assistance services

Budget Review 2017–18 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 (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

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

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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