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Estimates: Cuts to legal assistance sector

Estimates & Committees
Penny Wright 24 Feb 2014

Senator Penny Wright asks questions related to legal assistance cuts of the Attorney General's Department in the Legal and Constitutional Affairs Legislation Committee Estimates hearing.

 

Senator WRIGHT: I have some questions that segue quite nicely from the discussion we have just been having on MYEFO and the legal assistance sector generally. I also have some questions on the funding of Indigenous legal services and the Environmental Defender's Offices. I am really keen to get to some information about those three areas. I will start with MYEFO and the legal assistance sector. The government's MYEFO said in December 2013 that there will be a redirection of legal policy reform and advocacy funding, amounting to a cut of $43.1 million over four years, I think. Correct me if I am wrong on any of this of course. I understand the cuts are staggered over the forward estimates as follows: $4.6 million this financial year, $6.5 million in 2014-15, $16.3 million in 2015-16 and $15.7 million in 2016-17. The only further detail provided in MYEFO is that that the cuts will occur by removing funding support for policy reform and advocacy activities provided to four legal assistance programs. Which are the four legal assistance programs?

Senator BRANDIS: We will get to the particular answer, but can I just address the broader issue which you have opened up, Senator Wright?

Senator WRIGHT: As long as it is in response to my question, I would appreciate that. I just do not want to spend too much time talking about things that I do not need to know.

Senator Brandis: But I think it is important and I think you and I may have a philosophical difference here, but-

Senator WRIGHT: We will explore that, perhaps.

Senator Brandis: I do want to make clear the government's position.

Senator WRIGHT: With respect, I would appreciate it if you did make sure that my questions are answered, because I know I have limited time and I have some very specific questions to ask today.

Senator Brandis: They will be. But it is important to give context here.

Senator WRIGHT: Perhaps briefly.

Senator Brandis: We have to find savings in every portfolio. The only two areas of government that have been specifically quarantined from savings are the Department of Defence and health and medical research.

Senator WRIGHT: Can I interrupt you?

Senator BRANDIS: No, I-

Senator WRIGHT: I am sorry, but I need to say this because this happens often and I end up running out of time for the specific questions I have. It is very frustrating because I have people who really want to know the answers to the questions. I am going to try to ask you not for the justification but for the detail of what the cuts might mean-because naturally there are people who want to know what these will mean so that they can actually forward plan. That is what my question is about. What are the four legal assistance programs?

Senator Brandis: If the cuts-

CHAIR: Have they been announced?

Senator WRIGHT: They were announced in MYEFO. That is what I am asking about.

CHAIR: Okay, fair enough.

Senator WRIGHT: I just want to make sure that my information is right and where those cuts are going to fall.

CHAIR: Please confine yourself to the answers, Minister.

Senator WRIGHT: Thank you. I would appreciate that.

Senator Brandis: You ask the effect of these savings, Senator Wright?

Senator WRIGHT: No, first of all I asked-

Senator Brandis: That is what you said.

Senator WRIGHT: No. I asked what the four legal assistance programs are. That is my specific question.

Senator Brandis: You also asked about the effect of the savings.

Senator WRIGHT: Not yet, I haven't. I will come to that-and I will ask specific questions about that. Please just tell me what the four legal assistance programs are that we are talking about here. That would be helpful.

Mr Fredericks: The four legal assistance programs are actually those that I just noted in the context of the NPA review. They are, firstly, the legal aid program; secondly, the Indigenous legal assistance program; thirdly, the community legal services program; and fourthly, the family violence prevention legal services program. I should just note, in relation to that fourth program, that that program now resides with the Department of the Prime Minister and Cabinet.

Senator WRIGHT: I am now going to ask you something that would probably take quite a significant amount of time, I imagine, to answer. But I would like a broad overview and then I would like the detail for every organisation whose funding will be affected by these measure. There are various organisations that receive funding under these four areas. Can you, off the top of your heads, tell me what they are? I do not know if you can answer those in full detail today or whether you need to take those on notice.

Senator Brandis: I think will take those on notice.

Senator WRIGHT: Generally, then, what sorts of organisations are going to be affected?

Senator Brandis: This is what I was trying to get to before.

Senator WRIGHT: Okay, now we can come to it.

Senator Brandis: Well, now I can. You read the note to the MYEFO and I want to explain to you the approach the government has taken.

Senator WRIGHT: I would appreciate brevity though.

Senator Brandis: The kind of services where these savings will be found are in what is sometimes called policy and advocacy. You see-as you are aware but others may not be-that most of what the legal assistance sector or the access to justice sector does this case work: helping specific people who are too poor to afford a lawyer. But increasingly over recent years an increasing percentage of the legal assistance dollar has been spent on what is called advocacy work or policy work, which is not directed to helping specific clients with specific needs but in participating in-as it were-society's discussion about various areas of potential law reform or identifying gaps in the legal system.

Now, that is a good thing to do but in my view-and I hold this view very strongly-where resources are limited, I would rather see that money spent helping individual people in need who cannot afford a lawyer rather than spent on policy development. That is where the savings will be found.

Senator WRIGHT: Please advise of every organisation whose funding will be affected by this measure and please advise at what point, in relation to each of those organisations, will the loss of funding be effective? That is specific information that many, many organisations are keen to understand and know.

Senator Brandis: Sure, we will take that on notice. Can you clarify, when you say the loss of funding will be effective, you are after a date, are you?

Senator WRIGHT: Yes, essentially, because we have got the forward estimates. We have got the figures over the forward estimates, but we want to understand what the implications of this are.

Senator Brandis: We can take that on notice.

Senator WRIGHT: Your response there brings me to my next question, which is really very important because there is a concept that many people understand which is that prevention is better than cure. There is certainly a strong argument to be made that by providing systemic change where there are manifest injustices is far more efficient than dealing with it on a case-by-case basis, where many people will not get help at all and those who do clog up the courts having their cases dealt with. That is potentially possibly a philosophical difference and certainly a difference that you and I have.

Senator Brandis: It is, but it is also a practical difference too.

Senator WRIGHT: MYEFO states that funding for the provision of these so-called front-line legal services will not to be effected. I merely interested in understanding how the department will apply or distinguish in an organisation's work between so-called front-line legal services and others. That is because I asked this question at the last estimates session, in relation particularly to Indigenous legal aid funding, and an answer was not able to be given to me there. I am wondering if you now have criteria that you would apply so that you can actually be clear that you are not going to be funding that. What are frontline services? How do you distinguish what they are?

Senator Brandis: It is not a hard distinction to draw.

Senator WRIGHT: It was last time. I am interested that it is not now, because they could not answer it last time.

Senator Brandis: I actually do not recall that exchange with you.

Senator WRIGHT: It was not with you; it was with the department. I think it might have been with Mr Manning-maybe not.

Senator Brandis: I see. Mr Fredericks can give you a practical example of how that distinction is being observed.

Mr Fredericks: A practical example of that is in the current guidelines for the CLC program. That defines law reform and legal policy as an activity where projects are undertaken which have the potential to influence and affect changes to the law, legal processes and ultimately service delivery.

Senator WRIGHT: So what are you saying there? What does that mean? You have pointed me to that.

Mr Fredericks: I think that really is actually an articulation in the guidelines of effectively what the Attorney-General was saying to you.

Senator WRIGHT: So that is frontline or that is not frontline?

Mr Fredericks: That is not frontline.

Senator Brandis: There is a very practical test I think we can apply. I am not pretending this is universal, but I think it will apply in the overwhelming majority of cases. It is whether there is a client and whether these services are actually helping a flesh and blood individual or whether they are in the nature of essentially academic work or advocacy work that is not related directly to assisting a particular client in a particular case.

Senator WRIGHT: What if there are arguably 1,000 clients who are affected by what is a systemic injustice or a systemic practice that is occurring whereby advocating for legislative change might be a very efficient way of dealing with that issue as opposed to those 1,000 clients across Australia going to community legal centres, seeing a lawyer, taking action in a magistrate's court or tying up the court time and having a personal, individual rectification of that problem?

Senator Brandis: I understand the point and I have had this discussion with many people, including you-and, if I may say, you are a very thoughtful and constructive contributor to this debate. But what you are describing is law reform-and that is what we all do. It is what you do; it is what I do, it is what the department does; it is what any one of a number of NGOs do; it is what law societies and other professional bodies do; it is what the Law Council of Australia has a whole section devoted to. My point is that this is a need being catered to by a large variety of governmental and non-governmental institutions. But I would actually like to see 100 per cent of the legal assistance dollar spent on people who need it in their particular circumstances.

Senator WRIGHT: And there is an argument, of course, that in fact those organisations who are going to be apparently restricted to dealing with one-on-one clients-

Senator Brandis: They are not being restricted; they are just not being funded to do something else.

Senator WRIGHT: Essentially, in many ways that will ultimately be a restriction.

CHAIR: There will not be an argument, Senator. This is a nice discussion, but this is estimates. Could you ask a question, please.

Senator WRIGHT: I am about to ask the question. The minister has engaged me in discussing this.

CHAIR: The minister should not at estimates.

Senator WRIGHT: He is a naughty boy, but anyway.

CHAIR: I will be more vigilant in the future.

Senator Brandis: I am sorry, Mr Chair.

Senator WRIGHT: My point is that many would say that in fact it is these very organisations who deal with the coalface of where the systemic issues are who are uniquely in a position to know and to advocate effectively. There is a proud history of that, where there has been reform to egregious injustices.

Senator Brandis: I understand that and I said that it is a useful activity. But they can do that anyway. They do not need to be funded by the Commonwealth to engage in advocacy as lawyers and citizens, but they do need the funding to look after particular clients who, because of their poverty, cannot afford a lawyer-and I would rather they spend the money doing that.

Senator WRIGHT: That is what they say they do, of course.           

 

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