First Nations Justice package

Budget Review October 2022–23 Index 

Howard Maclean

Key Points

  • The Budget provides $99.0 million in new funding for Aboriginal and Torres Strait Islander Justice initiatives over the next four years.
  • Most of this new funding ($81.5 million) is for justice reinvestment initiatives and an independent unit to coordinate these initiatives.
  • The remainder is additional funding for Aboriginal and Torres Strait Islander Legal Services (ATSILS) to provide culturally appropriate legal advice on coronial processes ($13.5 million) and funding for Aboriginal and Torres Strait Islander legal service peak bodies ($4.0 million).

Budget measures: budget paper no. 2 (p. 49) provides $99.0 million of new funding over four years for programs related to the interaction of First Nations people with the justice system and the underlying causes of incarceration. This package is an implementation of Labor’s pre-election commitments regarding justice for First Nations People and rights and safety for First Nations women (Labor’s Commitment to First Nations Peoples, pp. 10, 12).

The Budget provides $0.3 less than the $99.3 million committed in Labor’s Plan for a Better Future: Better Budget, Better Economy pre‑election commitment, and also has a different distribution of funding per year, but concerns the same initiatives. The Budget also provides $3.0 million in funding for the National Family Violence Prevention Legal Services Forum (discussed below) which was included in Labor's Commitment to First Nations Peoples (p. 12) but not in Labor's Plan for a Better Future costings.

Table 1 First Nations Justice Funding

$ million 2022–23($m) 2023–24($m) 2024–25($m) 2025–26($m) Total[1]
Labor Election Commitment 15.0 28.1 28.1 28.1 99.3
October 2022 Budget 16.2 29.7 30.1 23.1 99.0

Sources: Labor’s Plan for a Better Future, 13 and Budget paper no. 2, 49.

The reason for the $0.3 million discrepancy between the election commitment and the Budget is not clear.

The election policy also committed to ‘consolidated real-time reporting of all deaths in custody at a national level’, but did not specifically commit funding for this initiative (Labor’s Commitment to First Nations Peoples, p. 10). The Budget commits to ‘explore options for consolidated national real-time reporting’, with the ‘costs to be met from within the existing resourcing of the Australian Institute of Criminology’ (Budget paper no. 2, p. 49), which might imply measures in a future budget to implement the policy.

Justice Reinvestment Initiatives

The majority of this new funding is $81.5 million for justice reinvestment initiatives. $69 million will go towards funding up to 30 such initiatives (with $20 million per year ongoing), with the remaining $12.5 million establishing an independent unit to coordinate these initiatives (with $3.1 million per year ongoing) through to 2025–26 (Budget paper no. 2, p. 49).

Justice Reinvestment initiatives are place-based, data-driven, locally designed initiatives to reduce Aboriginal and Torres Strait Islander rates of incarceration, crime and recidivism by addressing the underlying causes of crime and incarceration. The Productivity Commission’s previous studies of Indigenous-directed expenditure have shown that ‘Public order and safety’, (the police, justice and carceral systems), is one of the largest categories of government expenditure on Indigenous people. Justice Reinvestment aims to reduce this expenditure by ‘reinvesting’ the money into preventative measures. Establishing a national justice reinvestment body and justice reinvestment trials were Recommendations 4-1 and 4-2 of the 2017 Australian Law Reform Commission Report Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (pp. 125–148). This commitment is $2.5 million more than the $79.0 million pre-election commitment. The pre-election commitment stated that this funding would be matched by the states and territories (Labor’s Commitment to First Nations Peoples, p. 10), although the Budget does not indicate whether this has occurred.

Additional ATSILS Funding

The Budget provides $13.5 million for ATSILS over three financial years (Budget paper no. 2, p. 49). This funding is provided to ATSILS to provide ‘culturally appropriate and timely legal assistance before, during and after coronial processes’.

This is in addition to the funding provided to ATSILS under the National Legal Assistance Partnership (NLAP). Under NLAP, ATSILS will receive $268.8 million in base funding between 2022–23 and 2024–25. ATSILS also receive additional NLAP funding for ‘coronial inquiries and expensive and complex cases’ (Federal financial relations: budget paper no. 3, p. 87) This element of NLAP was introduced in the Mid-Year Economic and Fiscal Outlook 2021-22 (MYFEO 2021–22, pp. 47, 49, 51 and 53), and is maintained in this Budget ($2.6 million in 2022–23, $2.7 million in 2023–24 and 2024-25, Federal financial relations: budget paper no. 3, p. 87).

NLAP is a 5-year funding agreement that commenced on 1 July 2020, originally covering both Commonwealth funding for ATSILS and other legal assistance sector bodies. ATSILS baseline funding under NLAP increases by an average of approximately 1.4% per year, well below current inflation (National Legal Assistance Partnership, p. 13).

Total nominal funding for ATSILS under NLAP and the additional funding for this Budget has increased from $85.3 million in 2020–21 to $93.5 million in 2022–23, and is projected to increase to $99.1 million in 2024–25. However, when the impact of inflation (as measured by growth in the Consumer Price Index (CPI)) is considered, overall funding has declined, and is projected to decrease further through to 2024–25.

Figure 1  ATSILS Funding inflation adjusted

Sources:   p. 92, Federal financial relations: budget paper no. 3, p. 87, Budget paper no. 2, p. 49, Federal financial relations: budget paper no. 3: 2022–23 (March),  Federal financial relations: budget paper no. 3: 2021–22, 86.

Treasury currently projects that inflation (as measured by CPI growth) will gradually fall from 6.1% in 2021–22 to 2.5% by 2024–25 (Budget strategy and outlook: budget paper no. 1, p. 6), with real funding for ATSILS consequently projected to continue to fall as provided by the three ATSILS funding programs in this Budget (Baseline NLAP Funding, NLAP Coronial inquiry funding, First Nations Justice package funding).

The Budget includes $560.0 million over the forward estimates to supplement Community Sector Organisations ‘at need of funding supplementation due to additional staff wages pressures and higher inflation outcomes’ ­­­­– effectively, to displace the impact of inflation on Commonwealth funding to Community Sector Organisations. Of this $550 million package $47.5 million per annum is allocated to the National Indigenous Australians Agency (NIAA), and $8.1 million per annum is allocated to the Attorney-General’s Department (Budget paper no. 2, p. 84).

It is unclear how this funding will be allocated across the community sector organisations; if ATSILS will receive funding, and, if so, whether ATSILS will receive funding from the NIAA or Attorney-General’s Department funds.

National Family Violence Prevention Legal Services Forum

The Budget provides $3.0 million for the National Family Violence Prevention Legal Services Forum (NFVPLSF) (Budget paper no. 2, p. 49). Family Violence Prevention Legal Services (FVPLSs) are specialised services that provide culturally appropriate legal and other services to First Nations persons experiencing domestic violence, predominantly First Nations women and their children.

Unlike ATSILS and other domestic violence legal services (such as domestic violence units and non‑Indigenous-specific specialist family violence legal services), FVPLSs are not funded by the NLAP, but, instead, are predominantly funded directly by grants from the NIAA as one element of the Safety and Wellbeing Program of the Indigenous Advancement Strategy (see Family Violence Prevention Legal Services: National Evaluation Report, p. 8). This Program receives $1,649.6 million in funding for all its elements over the forward estimates (Portfolio budget statements 2022–23 (October): budget related paper no. 1.13: Prime Minister and Cabinet Portfolio, pp. 210, 214).

National Aboriginal and Torres Strait Islander Legal Services (NATSILS) funding

The Budget provides an additional $1.0 million over three years in funding to NATSILS, the peak body of ATSILS (Budget paper no. 2, p. 49). NATSILS currently receives $1.73 million between 2020 and 2025, a per annum funding of approximately $345,000. NATSILS called for additional funding of $1.053 million per annum for five years in its response to the March 2022–23 Budget (NATSILS analysis of the March 2022-23 Budget, p. 2).

Why does funding cease in 2025–26?

Three elements of the First Nations Justice package (NATSILS, NFVPLSF & additional ATS ILS funding) only provide funding over the next three financial years rather than for the duration of the forward estimates or on an ongoing basis.

While not stated in the budget papers, this may be due to the anticipated commencement of a new legal assistance partnership agreement from 2025–26 to replace the current NLAP, which expires at the end of 2024–25. This may foreshadow that ongoing funding to peak bodies (NATSILS and NFVPLSF) might be provided for in a new agreement. NLAP currently does not fund these bodies directly, and FVPLSs are currently funded by the NIAA rather than by NLAP.

[1].       Due to rounding, some totals may not correspond with the sum of the separate figures.


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