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 and the Expensive Commonwealth Criminal Cases Fund.
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 and family violence prevention legal services.
Funding for legal assistance services in the 2016–17 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.[1]
Determining the long-term trend in funding for Indigenous legal aid is
difficult, due to 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 assistance services for
disadvantaged Australians through the National
Partnership Agreement on Legal Assistance Services (NPALAS), which expires
on 30 June 2020.[2] Unlike the previous
Agreement, which only covered legal aid services, the current NPALAS also provides
funding for CLCs.[3]
In 2016–17 the Australian Government will provide
$257.1 million funding for legal aid services and legal assistance
services through the NPALAS.[4]
This is an increase of $6.2 million from 2015–16. The forward estimates
indicate that funding will decrease by a total of $8.4 million over the
2016–17 Budget levels in 2017–18, before gradually increasing in 2018–19 and
2019–20 to a funding level $0.3 million less than that provided in the current
budget for 2016–2017.[5]
Figure 1 below shows payments for the
provision of legal aid services and community legal centres between 1999–2000
and 2019–2020.[6]
Figure 1: payments for the
provision of legal aid services to states and territories

Source: Parliamentary Library estimates (See footnote 6).
Funding for legal aid commissions, in addition to that
provided in NPALAS, may be allocated through the Expensive Commonwealth
Criminal Cases Fund (ECCCF) which is administered by the Attorney-General’s
Department (AGD).[7] This funding has
increased by $0.81 million.[8] The funding provided in
2016–17 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)[9] as Table 2 below
demonstrates.[10]
Table 1: Expensive Commonwealth
Criminal Cases Fund amounts
(all
figures in $’000)
|
2014-15
Budget
|
2015-16
Budget
|
2016-17
Budget
|
2017-18
Forward estimate
|
2018-19
Forward estimate
|
2019-20
Forward estimate
|
Expensive
Commonwealth Criminal Cases Fund
|
2014-15
Budget
|
2,725
|
2,805
|
2,872
|
2,936
|
—
|
—
|
2015-16
Budget
|
7,925*
|
3,794
|
3,853
|
2,915
|
2,956
|
—
|
2016-17
Budget
|
—
|
3,794*
|
4,610
|
3,682
|
3,733
|
3,784
|
Change:
2015-16 to 2016-17
|
N/A
|
+0
|
+757
|
+767
|
+777
|
—
|
*Estimated actual from relevant Portfolio budget statements.[11]
Source: J Murphy, ‘Legal
aid and legal assistance services’, Budget review 2014–15, Research
paper series, 2013-14, Parliamentary Library, Canberra, 2014.
In addition to general CLC funding, in 2015–16 and 2016–17
the NPALAS will also provide targeted funding totalling $37.6 million to
specific CLCs.[12]
This funding appears to reflect the Government’s 26 March 2015 decision to
reverse cuts to the legal assistance sector, which had been proposed in the
2014–15 Budget and were due to commence from 1 July 2015.[13] This additional funding
will not continue past 30 June 2017, which will result in funding to CLC’s
under the NPALAS dropping from $45.9 million in 2016–17 to $34.5 million in
2017-18, a decrease of 25 per cent.[14] Over the three years
2017–18 to 2019–20, the funding decrease will see CLCs receive $30.6 million
less than if funding was maintained at 2016–17 levels.
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]
The funding commitments for the Indigenous Legal Assistance
Program (previously named the Indigenous Legal Aid Policy Reform Program[16])
are detailed in the following table:
Table 2: funding commitments for
the Indigenous Legal Assistance Program
(all
figures in $’000)
|
2014-15
Budget
|
2015-16
Budget
|
2016-17
Budget
|
2017-18
Forward estimate
|
2018-19
Forward estimate
|
2019-20
Forward estimate
|
Indigenous
Legal Assistance Program
|
2014-15
Budget
|
74,311
|
66,552
|
67,599
|
68,780
|
—
|
—
|
2015-16
Budget
|
74,311*
|
72,387
|
73,731
|
69,303
|
69,265
|
—
|
2016-17
Budget
|
—
|
72,387*
|
73,585
|
69,099
|
68,992
|
69,890
|
Change:
2015-16 to 2016-17
|
N/A
|
0
|
-146
|
-204
|
-273
|
—
|
* Estimated actual from relevant Portfolio budget statements.[17]
Source: J Murphy, ‘Legal aid and legal assistance services’, Budget
review 2015–16, Research paper series 2014-15, Parliamentary Library,
Canberra, May 2015.
This would tend to indicate that funding for
at least some Indigenous legal aid programs will decrease slightly in 2016–2017,
with further decreases from 2017–18 onwards. The estimated actual amount spent
on the Indigenous Legal Assistance Program (then named the Indigenous
Legal Aid Policy Reform Program[18])
in 2013–14 was $75 million.[19] Using that figure as a
benchmark, funding will be 1.8 per cent less in 2016–17; 7.8 per cent less in 2017–18;
eight per cent less in 2018–19 and 6.7 per cent less in 2019–20.
Domestic violence
In the Mid-Year Economic and Fiscal Outlook
2015–16, the Government announced the allocation of $101.2 million over four
years for a Women’s Safety Package, aimed at addressing family violence.[20]
This funding has been placed in the Contingency Reserve.[21]
The Attorney-General advised that $15 million of this funding would be used to set
up Specialist Domestic Violence Units in 12 CLCs across the country. [22]
Four of these CLCs will also establish Health Justice
Partnerships, to allow legal advice to be provided at partnered hospitals or
health centres.[23]
In addition, the Government’s decision to
reverse cuts to legal aid and legal assistance services that had been proposed
in the 2014–15 Budget (discussed above) focused on ensuring appropriate
resourcing to assist survivors of family violence.[24]
In the current Budget, the Government
announced that an additional $100 million of funding would be provided over
three years to develop ‘new initiatives to break the cycle’ of domestic
violence.[25] This additional funding
is not allocated to the Attorney-General’s portfolio and would therefore, on
the face of the budget papers, appear not to include funding for legal
assistance services. However, it has been reported that the Government has
advised the National Association of Community Legal Centres that some of this
funding may be allocated to the legal assistance sector, although the quantum
and distribution of such funding has not yet been determined.[26]
For further details please refer to ‘Domestic and family violence’ in this Budget
Brief.
Access to justice arrangements
inquiry
On 5 September 2014, the Productivity Commission (PC)
released the report of its inquiry into Access to Justice Arrangements.[27] The PC
recommended that government funding for civil legal assistance services ‘should
be increased by around $200 million’.[28]
The Government’s response to the PC report, released on 29 April 2016, does not
respond to the recommendation to increase funding.[29] Accordingly, there is no
additional funding provided in the Budget in response to the PC’s
recommendation.
Reaction from
stakeholders
The Law Council of Australia (LCA) expressed concern
with the legal assistance service funding in the 2016–17 Budget, stating that
‘legal aid continues to be underfunded to the tune of hundreds of millions of
dollars’ and:
The Law Council will now officially launch a
campaign on legal aid funding, with rallies around the country during National
Law Week (16-20 May).[30]
The LCA warned that ‘budgetary inaction on
legal aid was a false economy’, pointing out that the PC report into access to
justice arrangements had advised that ‘money invested in legal aid would yield
substantial economic savings, a finding which has not been heeded’.[31]
The National Association of Community Legal
Centres (NACLC) also noted that the Budget was ‘a missed opportunity to stop
the funding cuts and ensure the most disadvantaged and vulnerable people across
Australia have access to legal assistance’.[32] The NACLC
welcomed the additional funding for family violence, but expressed
disappointment that the ‘funding does not include funding for legal assistance
services’.[33]
The National Aboriginal and Torres
Strait Islander Legal Service (NATSILS) is ‘deeply concerned’ about funding
cuts to the Aboriginal and Torres Strait Islander Legal Services (ATSILS) and
the Indigenous Legal Assistance Program.[34] NATSILS warned that the
funding cuts will ‘result in unavoidable withdrawals of frontline services’ and
‘impact the most vulnerable of the ATSILS’ clients, including victims of family
violence, children, clients in remote and rural areas, clients with mental
ill-health and cognitive impairments’.[35]
[1].
J Murphy, ‘Legal
aid and legal assistance services’, Budget review 2013–14, Research
paper, 3, 2012–13, Parliamentary Library, Canberra, 2013, p. 59; Australian
Government, Portfolio
budget statements 2015–16: budget related paper no. 1.2: Attorney‑General's
Portfolio, 2015, pp. 30-31; Australian Government, Budget
measures: budget paper no. 2: 2015–16, 2015, p. 61.
[4].
Budget paper no. 3: 2016–17, op. cit., pp. 68, 71.
[6].
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, op. cit., 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.
[7].
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.
[10].
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].
National Partnership Agreement on Legal Assistance Services, op. cit., Schedule
C and Table 2, pp. 10–11.
[13].
G Brandis (Attorney-General) and M Cash (Minister Assisting the Prime
Minister for Women), Legal
aid funding assured to support the most vulnerable in our community,
media release, 26 March 2015; Portfolio budget statements 2014–15,
Attorney-General's Portfolio, op. cit., p. 29. 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.
[14].
National Partnership Agreement on Legal Assistance Services, op. cit.,
Table 2, pp. 10–11.
[15].
J Murphy, ‘Legal aid and legal assistance services’, Budget review
2014–15, op. cit., p. 116 and sources cited therein.
[17].
Portfolio budget statements 2014–15, Attorney-General’s Portfolio,
op. cit., p. 32; Portfolio budget statements 2015–16, Attorney-General's
Portfolio, op. cit., p. 33; Portfolio budget statements 2016–17, Attorney-General’s
Portfolio, op. cit., p. 20.
[18].
J Murphy, ‘Legal aid and legal assistance services’, Budget review
2015–16, op. cit., p. 106 and sources cited therein.
[19].
Portfolio budget statements 2014–15, Attorney-General’s Portfolio, op.
cit., p. 32.
[24].
G Brandis (Attorney-General) and M Cash (Minister Assisting the Prime
Minister for Women), Legal aid funding assured to support the most vulnerable
in our community, op. cit. See footnote 13 for further information.
[28].
Ibid., vol. 1, Recommendation 21.4, p. 38 and vol. 2, p. 741.
All online articles accessed May 2016.
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