Legal aid and legal assistance services

Budget Review 2018–19 Index

Michele Brennan and Jaan Murphy

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 2018–19 the Australian Government will provide $265.9 million funding for legal aid services and CLCs through the NPALAS.[3] This is an increase of $4.4 million from 2017–18. Funding will then increase by $4.1 million in 2019–20 to $270 million. The forward estimates only indicate funding to 2019–20 as the NPALAS is due to expire on 30 June 2020.[4]

This funding is consistent with the 2017–18 Budget, but reflects an increase on the funding in the NPALAS as originally agreed. This is discussed below.

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,

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

ECCCF funding

Funding for legal aid commissions is also provided through the ECCCF.[6] ECCCF funding will be stable over the forward estimates period and from 2017–18 represents a return to levels similar to that provided prior to the 2011–12 Budget revisions (as discussed in Budget Review 2014–15).[7] Table 1 shows ECCCF funding over the forward estimates.[8]

Table 1: Expensive Commonwealth Criminal Cases Fund amounts

(all figures in $’000) 2016–17 Budget 2017–18 Budget 2018–19 Budget 2019–20 Forward estimate 2020–21 Forward estimate 2021–22 Forward estimate
Expensive Commonwealth Criminal Cases Fund 2016–17 Budget 4 610 3 682 3 733 3 784
2017–18 Budget 4 610* 3 675 3 722 3 769 3 799
2018–19 Budget 3 675* 3 722 3 765 3 799 3 852
Change: 2017–18 to 2018–19 N/A 0 0 –4 0 N/A

*Estimated actual from relevant Portfolio budget statements.

Source: as per footnote 8.

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.[9]

Under the NPALAS as originally agreed, 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.[10] On 24 April 2017, the Government announced an additional $39 million for CLCs to be delivered through the NPALAS.[11] This additional funding was reflected in the 2017–18 Budget and 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).[12]

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. The forecast CLC funding provided through the AGD over the forward estimates shown in the 2018–19 Budget is consistent with the figures forecast in the 2017–18 Budget, as Table 2 below demonstrates.[13] This year’s forecast shows CLC funding provided through the AGD decreasing by 71 per cent ($7.2 million) between 2018–19 and 2019–20, and then stabilising over the remainder of the forward estimates.[14] This funding decrease appears to be related to the changed focus of the AGD’s Community Legal Services Programme from providing funding for delivery of legal services to a discretionary grant program, which will fund ‘national service delivery projects, innovative pilot programmes and programme support activities’ to enhance the provision of legal assistance to the community.[15]

Table 2: funding for CLCs provided through the AGD

(all figures in $’000) 2016–17 Budget 2017–18 Budget 2018–19 Budget 2019–20 Forward Estimate 2020–21 Forward Estimate 2020–21 Forward Estimate
Community legal services 2016–17 Budget 7 906 7 704 2 627 2 661
2017–18 Budget 8 016* 8 989 10 185 2 991 3 179
2018–19 Budget 8 989* 10 185 2 988 3 179 3 223
Change: 2017–18 to 2018–19 0 0 –3 0 N/A

*Estimated actual from relevant Portfolio budget statements. Source: as per footnote 13.

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]

The figure below shows Commonwealth recurrent spending on CLCs from 2005–06 to 2019–20

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) 2016–17 Budget 2017–18 Budget 2018–19 Budget 2019–20 Forward estimate 2020–21 Forward estimate 2021–22 Forward estimate
Indigenous Legal Assistance Program 2016–17 Budget 73 585 69 099 68 992 69 890
2017–18 Budget 73 585* 74 463 74 365 75 276 70 173
2018–19 Budget 74 463* 74 365 75 202 70 173 71 155
Change: 2017–18 to 2018–19 N/A 0 0 –74 0 N/A

* Estimated actual from relevant portfolio budget statements.[20]

Source: as per footnote 19.

The funding for the Indigenous Legal Assistance Program in the 2018–19 Budget is largely consistent with the funding indicated in the 2017–18 Budget.[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.[23] 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 announced by the Government in April 2017 and reflected in the 2017–18 and 2018–19 budget papers.[24]

Domestic violence services

This year’s budget has no additional funding for domestic violence services, however as part of the Women’s Safety Package, last year’s (2017–18) Budget included $3.4 million in funding over two years to expand the trial of Domestic Violence Units (DVUs) in legal centres around Australia.[25] 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 location of the DVUs was announced in October 2017, in high need areas in each state and the Northern Territory.[26]

Reaction from stakeholders

The Law Council of Australia (LCA) has called for a ‘significant boost in federal funding for legal aid’ as it regards the legal assistance sector as ‘critically underfunded’.[27] LCA President Morry Bailes said:

Through the Law Council’s Justice Project, we estimate that an additional $390m per annum is required to get the legal assistance system back on its feet. This includes $200m as recommended by the Productivity Commission for civil legal assistance alone.[28]

The preventative, everyday role of timely legal assistance stops simple problems from escalating into more serious matters at great cost to the taxpayer and community. It’s time this was recognised and funded adequately.[29]

The National Association of Community Legal Centres expressed disappointment that the Budget did not provide additional core funding for legal services and felt that the Budget was ‘a missed opportunity to provide funding certainty ahead of expiration of National Partnership Agreement on Legal Assistance Services in 2020’.[30]

The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) considers that the budget will ‘create more legal need for Aboriginal and Torres Strait Islander people’ by failing to address recommendations of the Australian Law Reform Commission and the Royal Commission into the Protection and Detention of Children in the Northern Territory aimed at addressing the over-representation of Indigenous people in custody.[31] NATSILS is disappointed that the budget did not provide additional support for Indigenous legal services.[32]



[1].          Council of Australian Governments (COAG), National Partnership Agreement on Legal Assistance Services, [2016], as varied 28 June 2017.

[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: 2018–19, pp. 64, 66.

[4].          COAG, National Partnership Agreement on Legal Assistance Services, [2016], as varied 28 June 2017, clause 7.

[5].          For consistency, figures for 1994–1995 to 2007–2008 were drawn from the relevant portfolio budget Statements: see, for example, 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, for example, 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], as varied 28 June 2017, pp. 10–12 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].          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; Australian Government, Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's Portfolio, p. 19; Australian Government, Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio, p. 19; Australian Government, Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, p. 17.

[8].          Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's Portfolio, op. cit., p. 19; Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 19; Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 17.

[9].          Australian Government, Portfolio budget statements 2015–16: budget related paper no. 1.2: Attorney-General's Portfolio, pp. 19, 30.

[10].       COAG, National Partnership Agreement on Legal Assistance Services, [2016], as originally agreed, pp. 10–11.

[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: Murphy and Brennan, ‘Legal aid and legal assistance services, op. cit., for more details about CLC funding under the NPALAS.

[12].       For details about the forecast CLC funding cuts see: Murphy and Brennan, ‘Legal aid and legal assistance services, op. cit., pp. 76–77.

[13].       Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's Portfolio, op. cit., p. 19; Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 19; Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 17.

[14].       Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 17.

[15].       AGD, ‘Community Legal Services Programme’, AGD website. For further information see: AGD, Programme guidelines for Community Legal Services Programme, 2015.

[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 from 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], as varied 28 June 2017, pp. 10–12 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, Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 17.

[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].       Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's Portfolio, op. cit., p. 20; Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio , op. cit., p. 20; Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 19.

[21].       Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio , op. cit., p. 20; Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 19.

[22].       Australian Government, Portfolio budget statements 2014–15: budget related paper no. 1.2: Attorney-General's Portfolio, 2014, p. 32; Murphy, ‘Legal aid and legal assistance services, op. cit., p. 106 and sources cited therein.

[23].       Australian Government, Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney‑General's Portfolio, op. cit., p. 20

[24].       Brandis et al, Record federal funding for legal assistance, op. cit.; Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio , op. cit., p. 20; Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 19.

[25].       Australian Government, Budget measures: budget paper no. 2: 2017–18, p. 71.

[26].       G Brandis (Attorney-General),  Turnbull Government funds new domestic violence units, media release, 16 October 2017.

[27].       Law Council of Australia, Budget boost to counter elder abuse welcome, but greater funding required to end justice crisis, media release, 8 May 2018.

[28].       For further information see: Productivity Commission (PC), Access to justice arrangements, Inquiry report, 72, PC, Canberra, 5 September 2014.

[29].       Law Council of Australia, Budget boost to counter elder abuse welcome, but greater funding required to end justice crisis, op. cit.

[30].       National Association of Community Legal Centres, A missed opportunity to guarantee essential services, media release, n.d.

[31].       For further information see: Australian Law Reform Commission (ALRC), Pathways to justice: an inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples, Final report, 133, ALRC, Sydney, December 2017 and Royal Commission into the Protection and Detention of Children in the Northern Territory, Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, The Commission, Canberra, November 2017.

[32].       National Aboriginal and Torres Strait Islander Legal Services, Federal Budget measures will create more legal need for Aboriginal and Torres Strait Islander people but no solutions, media release, 9 May 2018.

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