Budget Review 2020–21 Index

Jaan Murphy

Legal aid services: Commonwealth funded legal services are delivered by state and territory legal aid commissions through the National Legal Assistance Partnership (NLAP) 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 Legal Assistance Partnership (NLAP). The NLAP commenced on 1 July 2020 and expires on 30 June 2025 (NLAP, clause 12). Like its predecessor (the National Partnership Agreement on Legal Assistance Services (NPALAS)) the NLAP covers legal aid services and provides funding for community legal centres (CLCs).[1] Prior to 2015, the legal assistance partnership agreement between the Commonwealth and the states and territories only covered legal aid services.

In 2020–21 the Australian Government will provide $299.2 million base funding for legal aid services and CLCs through the NLAP (NLAP, p. 13). This is an increase of $29.2 million on the base funding provided through the NPALAS in 2019–20 (Federal Financial Relations: Budget Paper No. 3: 2020–21, p. 69, Final Budget Outcome 2019–20, p. 78). Funding provided through the NLAP will then increase each year in the forward estimates as shown in Table 1 below.

Table 1: NLAP funding for legal aid services and CLCs

Year (all figures in $ million)	NLAP funding for legal aid services and CLCs	Increase from previous year base funding under National Partnership Agreement
2020–21	$299.2*	$29.2**
2021–22	$303.8	$4.6
2022–23	$308.3	$4.6
2023–24	$313.8	$5.0

* Includes Social and Community Services (SACS) funding (NLAP, p. 13; Budget Paper No. 3: 2020–21, p. 69).

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 NLAP (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.[2] From 2015–16 the funding reflects the NPALAS, and from 2020–21 the funding reflects the NLAP.

Figure 1: payments for the provision of legal aid services to states and territories (non-adjusted figures)

Source: Parliamentary Library estimates (see footnote 2).

ECCCF funding

Funding for legal aid commissions is also provided through the ECCCF. Legal aid commissions can apply for funding under the ECCCF when defending clients in high cost Commonwealth criminal matters such as drug importation, people smuggling, terrorism, fraud and slavery (AGD, ‘Expensive Commonwealth Criminal Cases Fund’).

ECCCF funding will be stable over the forward estimates period and represents an increase to levels of funding from the 2017–18 Budget onwards. Table 2 shows ECCCF funding over the forward estimates.[3]

Table 2: Expensive Commonwealth Criminal Cases Fund amounts

(all figures in $’000)		2017–18 Budget	2018–19 Budget	2019–20 Budget	2020–21 Budget	2021–22 Forward estimate	2022–23 Forward estimate	2023–24 Forward estimate
Expensive Commonwealth Criminal Cases Fund	2017–18 Budget	3 675	3 722	3 769	3 799	N/A	N/A	N/A
	2018–19 Budget		3722	3765	3799	3852	N/A	N/A
	2019–20 Budget			7966	nil	nil	nil	N/A
	2020–21 Budget				8101	8174	8276	8392

* estimated actual from relevant Portfolio budget statements Source: as per footnote 3.

Community legal centre funding

The Australian Government provides funding for CLCs through the NLAP and the ‘Justice Services’ program in the AGD.

As discussed above, as with the NPALAS, the NLAP includes funding for CLCs. This means that since 2015–16 the majority of funding for CLCs has been provided through the NPALAS and now the NLAP. Prior to 2015–16 the majority of CLC funding was provided through the AGD (Portfolio budget statements 2015–16: budget related paper no. 1.2: Attorney-General's Portfolio, pp. 19, 30).

CLC NLAP funding

In 2020–21 the Australian Government will provide $55 million funding for CLCs through the NLAP. This is an increase of $4.89 million on the funding provided through the NPALAS in 2019–20 (NLAP, p. 13). Funding provided through the NLAP will then increase each year in the forward estimates shown in Table 3 below.

Table 3: NLAP funding for CLCs

Year (all figures in $ million)	NLAP funding for CLCs	Increase
2020–21	55.0*	4.9
2021–22	55.9	0.9
2022–23	56.7	0.8
2023–24	57.6	0.9

* Includes SACS funding. Source: NLAP, p. 13; Final Budget Outcome 2019–20, p. 78.

AGD ‘Justice Services’ funding

Due to the redirection of CLC funding through the NPALAS and its replacement, the NLAP, the amount of CLC funding delivered by the AGD directly has decreased. The forecast CLC funding provided through the AGD over the forward estimates shown in the 2020–21 Budget is consistent with the figures forecast in the 2019–20 Budget, as Table 4 below demonstrates.[4]

This year’s forecast shows CLC funding provided through the AGD increasing slightly over the forward estimates (Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, p. 25).

Table 4: funding for CLCs provided through the AGD

(all figures in $’000)		2017–18 Budget	2018–19 Budget	2019–20 Budget	2020–21 Budget	2021–22 Forward estimate	2022–23 Forward estimate	2023–24 Forward estimate
Community legal services	2017–18 Budget	8 989	10 185	2 991	3 179	N/A	N/A	N/A
	2018–19 Budget		10 185	2 988	3 179	3 223	N/A	N/A
	2019–20 Budget			2 647	3124	3 172	3 238	N/A
	2020–21 Budget			2 913*	3 118	3 147	3 199	3 244

*Estimated actual from relevant Portfolio budget statements. Source: as per footnote 4.

Total CLC funding

The figure below shows Commonwealth recurrent spending on CLCs from 2005–06 to 2023–24. The figures from 2015–16 onwards include funding provided through the AGD and funding provided under the NPALAS, and from 2020–21 the funding reflects the NLAP and funding provided through the AGD.[5]

Figure 2: total Commonwealth funding for CLCs (non-adjusted figures)

Source: Parliamentary Library estimates (see footnote 5).

Indigenous legal assistance services

As noted in Budget Review 2014–15 (p. 116), 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. The relevant portfolio budget statements note that funding for the Indigenous Legal Assistance Program transfers to the Department of Treasury from the 2020–21 Budget onwards and is included in the NLAP as the Aboriginal and Torres Strait Islander Legal Services (ATSILS) program.[6]

The funding commitments for the Indigenous Legal Assistance Program (ILAP), (previously named the Indigenous Legal Aid Policy Reform Program, Budget Review 2015–16, p. 106), and the ATSILS component of the NLAP are detailed in the following table:

Table 5: funding commitments for the Indigenous legal assistance programs

(all figures in $’000)		2017–18 Budget	2018–19 Budget	2019–20 Budget	2020–21 Budget	2021–22 Forward estimate	2022–23 Forward estimate	2023–24 Forward estimate	2024–25 NLAP
Indigenous Legal Assistance Program/ Aboriginal and Torres Strait Islander Legal Services component of NLAP.	2017–18 Budget	74 463	74 365	75 276	70 173	N/A	N/A	N/A	N/A
	2018–19 Budget		74 365	75 202	70 173	71 155	N/A	N/A	N/A
	2019–20 Budget			75 202	Nil	Nil	Nil	Nil	N/A
	2020–21 Budget/ NLAP			77 690*	85 307**	86 683	88 202	89 612	91 046

* Estimated actual from portfolio budget statements.^[7] ** Includes SACS supplementation. Source: as per footnotes 6 and 7.

Funding for the ATSILS component of the NLAP represents an increase on funding provided previously under the ILAP, with funding for 2020–21 increasing $10.1 million over 2019–20 levels. Funding for 2024–25, the last year of the NLAP, increases by a further $5.7 million over 2020–21 levels. This represents a $15.8 million increase on 2019–20 funding levels.[8]

The relevant portfolio budget statements note that funding for the ILAP transfers to the Department of Treasury from the 2020–21 Budget onwards and is included in the NLAP (Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, pp. 27, 29).[9]

Other legal assistance related measures

In addition to the above long-term programs and funding arrangements, the Budget includes additional legal assistance related measures.

Domestic violence services

This year’s Budget contains various funding commitments related to domestic violence services. The Budget continues funding for Domestic Violence Units (DVUs) – first established in 2016 (Budget Review 2016–17, p. 92) –in legal centres around Australia. DVUs and health justice partnerships provide legal assistance and other forms of support to women experiencing or at risk of domestic violence, including financial counselling, tenancy assistance, trauma counselling, emergency accommodation, family law services and employment services (NLAP, p. 17; Budget Review 2016–17, p. 92; G Brandis (Attorney-General), Turnbull Government funds new domestic violence units, media release, 16 October 2017).

Previously most DVU/health justice partnership funding was directly administered by the Attorney-General’s Department. From 2020–21 onwards however, funding will be moved to the NLAP and the states and territories will allocate Commonwealth funding to all currently funded legal assistance providers for the delivery of existing DVUs and/or health justice partnerships. NLAP funding for DVUs and health justice partnerships increases from $9.9 million in 2020–21 to $10.6 million in 2024-25 (NLAP, pp. 13, 17; Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio, p. 26; Budget Paper No. 3, p. 69).

COVID-19 related legal assistance measures

This year’s Budget contains a number of legal assistance related initiatives as part of the Government’s response to COVID-19 including:

• $49.8 million over two years from 2019–20 for additional legal assistance services for families and children experiencing hardship
• $13.5 million in 2019–20 to allow legal assistance providers to deliver services virtually to the community in response to the impact of COVID-19 and
• $6.2 million over four years from 2020­21 to assist the states and territories in administering the NLAP (Budget Measures: Budget Paper No. 2: 2020–21, pp. 210–211).

Bushfire related legal assistance measures

This year’s Budget contains a number of legal assistance related initiatives as part of the Government’s response to the 2019–20 bushfires including:

• $5.2 million for legal assistance to individuals residing in bushfire affected Local Government Areas (LGAs) and
• $3.5 million for legal assistance to businesses in bushfire affected LGAs ((Budget Paper No. 2, p. 218).

Reaction from stakeholders

The Law Council of Australia (LCA) expressed disappointment that there was no additional funding for the legal assistance sector in addition to the funds previously announced following the bushfires and COVID-19.

The LCA further argued that the ‘legal assistance sector has been chronically underfunded for years by successive governments’ and that the Budget represented a failure to adequately fund the sector.

The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) stated that the ‘Federal Budget shows the only national dedicated program to ending the disadvantage of Indigenous people in the justice system has been abolished, replaced with the mainstream National Legal Assistance Partnership’.

NATSILS further argues that the budget provides ‘no additional funding for legal assistance services’ and ‘no additional money to Aboriginal and Torres Strait Islander Legal Services’.

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[1].  M Brennan and J Murphy, ‘Legal aid and legal assistance services’, Budget review 2018–19, Research paper series, 2017–18, Parliamentary Library, Canberra, 2018, p. 57.

[2]. 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 2019–20 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. Figures from 2020–21 to 2024–25 were drawn from, National Legal Assistance Partnership, op. cit., p. 13 and Budget Paper No. 3: 2020–21 ,op. cit., p. 69 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.

[3]. 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; Australian Government, Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio , p. 24; Australian Government, Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio , p. 25.

[4]. 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; Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 24; Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 25.

[5]. 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. Figures from 2020–21 to 2024–25 were drawn from Attorney-General's Department (AGD), National Legal Assistance Partnership, [2020], p. 13; Budget Paper No. 3: 2020–21, op. cit., p. 69 and Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 25 and calculated on the basis of the funding allocated for ‘Community Legal Services Program’, and CLC-specific funding in the NLAP.

[6]. Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., pp. 25–26; Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., pp. 27, 29; National Legal Assistance Partnership, op. cit., p. 13; Budget Paper No. 3: 2020–21, op. cit., p. 69.

[7]. 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; Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 25; Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 27; National Legal Assistance Partnership, op. cit., p. 13; Budget Paper No. 3: 2020–21, op. cit., p. 69.

[8]. Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 25; Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., p. 27; National Legal Assistance Partnership, op. cit., p. 13; Budget Paper No. 3: 2020–21, op. cit., p. 69.

[9]. Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., pp. 25–26; Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, op. cit., pp. 27, 29.

 

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