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Estimates: Legal Aid

Estimates & Committees
Penny Wright 31 May 2012

Senator WRIGHT: Good, thank you for that. My next questions are around the review of the National Partnership Agreement on Legal Assistant Services and Legal Aid, or CLC funding generally. Under the National Partnership Agreement on Legal Assistant Services a review must be completed by 30 June 2013, and the Allen Consulting Group has recently been appointed to conduct this review. As part of the review process, what engagement and consultation with stakeholders will take place?

Ms Todd: The review is very much dependent on a great deal of consultation with stakeholders, in particular providers of legal assistant services. There will be about three rounds of consultations across Australia. But the review also has a governance structure which provides for an advisory committee made up of legal assistance providers, a representative from the Law Council of Australia, a representative from Family Relationships centres and a representative from pro bono.

Senator WRIGHT: Thank you. Is there a planned timeframe for the consultations under this review? And will the Allen Consulting Group provide its report to government before 30 June 2013?

Ms Todd: There is a consultation timetable. It has not all been settled, because Allen only started on 1 May, so we are expecting that to be sorted out probably by the end of May. But we do know that there is a first round of consultations which will take place across Australia, in all capital cities and Alice Springs, starting about 4 June, where they will speak to major service providers and key stakeholders across Australia.

Senator WRIGHT: And will the Allen Consulting Group provide its report to government before 30 June 2013?

Ms Todd: The report is due on 30 June 2013.

Senator WRIGHT: How are the states and territories contributing to the review process?

Ms Todd: The states and territories are contributing about $167,000 in funding. They are also on the steering committee, which is one of the three governance structures around the review. There are state reps on that steering committee, so it is really a Commonwealth-state review.

Senator WRIGHT: What are the terms of reference of the review? And, given the underfunding of community legal centres, is the review focused on decreasing funding, or is it looking at how to better support and resource Legal Aid commissions and community legal centres?

Ms Todd: The terms of reference of the review cover two parts. Part A is a review of Legal Aid commissions only, because Legal Aid commissions are the only bodies funded under the National Partnership Agreement on Legal Assistance Services. So they will be assessed against the performance indicators and benchmarks in the NPA. Part B of the agreement is a broader evaluation, and it is an evaluation of the efficiency, effectiveness and quality of Commonwealth legal assistance services generally. They are community legal centres, Legal Aid commissions, Aboriginal and Torres Strait Islander legal services and the family violence prevention legal services. It is an evaluation of their efficiency, effectiveness and quality of service delivery and whether it is being delivered collaboratively-which is a requirement of the NPA-in association with other service providers.

The impetus for the review was not any sort of funding issue as such. It is a review that was required to be undertaken by the NPA. There is a provision in the NPA that says there must be a review and that it must be completed independently of the state, territory and Commonwealth governments by 30 June. It is very much about looking at efficiency and effectiveness of the current service delivery. We are anticipating that the findings of the review will be just as helpful to government policy decision makers as they will be to CLCs, ATSILS and Legal Aid commissions, in that they will highlight ways of them providing services more efficiently.

Senator WRIGHT: Thank you. With respect to the terms 'efficiency', 'effectiveness' and 'quality'-I am pretty clear on what efficiency and quality might mean; 'effectiveness', I am not so sure of. To what extent do the terms of reference refer to assessing the degree of unmet need that is actually out there that community legal services and other legal assistance providers are not able to meet at this stage?

Ms Todd: The review will look at one of the objectives of the NPA-to make sure that legal assistance services are targeted at the most disadvantaged. So that will be one of the things that will be looked at: the extent to which those services are going where they are supposed to be going in terms of the funding. As to unmet need, we are relying on a report that has been in the pipeline for a while, commissioned by National Legal Aid, on unmet need in Australia. That report is due to be released-it is being done by the Law and Justice Foundation of New South Wales-around July or August. So we specifically excised from the terms of the review any consideration of unmet need as such, because we will get that information, we are hoping, from the Law and Justice Foundation report.

Senator WRIGHT: I see. So, essentially, if I am understanding correctly, the terms of reference are really about a status quo in terms of the funding that is available and the degree to which then the legal service providers are working within that regime with efficiency, effectiveness and quality?

Ms Todd: Yes. I do not know what government will do by way of funding in future years, but it is very much about looking at how the money is being spent now, if there are duplications and overlaps, and making sure that very precious dollar is going to the most needy and it is going into quality services.

Senator WRIGHT: Yes, I understand that. I suppose the question that then raises for me is: if the status quo, the constraints within which the assessment is being done, requires that the services go to the most disadvantaged, and perhaps shuffle down, there is still potentially going to be quite a band of disadvantaged people who are not the most disadvantaged who might then not be receiving the legal services that they previously were. So to what extent may the review be able to assess that, do you think, within the terms of reference?

Mr Wilkins: Senator, if I could intervene there. It is not really meant to be a funding review in that sense. With the last NPA we tried to take Legal Aid in a different direction in terms of early intervention and a greater emphasis on people getting quality legal advice at an earlier point in time to try and avoid a situation where people end up in the courts. This is really trying to take that to the next level. There was a degree of uptake and enthusiasm by the state Legal Aid authorities, and by my counterparts in the states and territories also, to look at this and see how much further we could take it. So it is really saying that we are all stretched in terms of the money available; how can we make that work more? How can we get more leverage out of that funding, and probably better outcomes for the people who are getting Legal Aid assistance as well. So that is really a lot of what we are expecting to get out of this inquiry. It is not meant to be looking at funding per se, but I guess in terms of unmet need we would like to see to what extent within the current envelope that need could be better accommodated or better met, maybe through institutional redesign or the way in which the funding is allocated to the types of services that are provided and the timeliness with which they are provided and stuff like that. But it is not a vehicle for a budget bid; let us put it that way.

Senator WRIGHT: The next question is sort of around that question as well: will the review consider alternative and complementary funding options to improve the ability of the legal system to meet the needs of a wide range of participants? I will give you some examples. For example, in South Australia we have a litigation assistance fund, which began in 1992, and that fund assists companies and individuals with the prosecution of civil cases where clients are unable to pay legal expenses. The Australia Institute has also suggested that a legal expenses contribution scheme, based on an income-contingent interest-free loan scheme, could be introduced as a complementary funding model. Is the review going to be considering these types of alternative and complementary funding options that facilitate improved access to justice in the absence of adequate funding otherwise?

Ms Todd: Not really. The review will be looking at the current funding agreements and arrangements and funding formulas, especially under the NPA itself, and looking at whether there are some suggestions that can be made around those. It will be looking at market failure-the extent to which legal assistance services are able to meet the market failure caused by private practice not being able to deliver all of these legal assistance services. Part of that may well be looking at whether there are some parts of legal assistance that should or could be provided by a different service provider. But it is not going to, I do not think, come up with any recommendations as such for alternative means of funding.

Mr Duggan: By way of example, perhaps, we will be particularly keen to ensure that, in our rural and remote areas, services are operating in a complementary sense, so you do not necessarily send three or four lawyers to a remote court; there would be a sharing arrangement between them. That happens in many cases now, but that could well be improved. We are not talking about collapsing services-there is no hidden agenda from the government here that there should be services merged with others-but we are looking at making sure that, to the maximum extent possible, services are complementary. That already happens in some places. We think there is possible room for it to happen elsewhere and we are hoping the review will help us with that.

Senator WRIGHT: I have a few more questions about community legal centres and their ability to meet legal obligations under the recent equal pay decision. How does the government intend to support community legal centres to respond to and meet their legal obligations to pay salary increases following the equal pay decision? There is some concern that this will actually put great pressure on community legal centres in terms of their salary costs.

Mr Duggan: The Prime Minister has announced that the Commonwealth will meet its obligations in relation to the SACS award. The Commonwealth has set aside $2 billion overall, of which we are a very small part in that regard. The Commonwealth has made a very strong commitment that we will meet our obligations in relation to that. Indeed, the Prime Minister welcomed that decision. We are aware we are part of a broader government initiative to ensure that that funding will be available, and that is the commitment the Prime Minister has given us.

Senator WRIGHT: Will extra funding be provided to community legal centres to ensure that they can meet their legal obligations to employees without affecting the delivery of legal assistance services? Is there an assurance that there will be sufficient top-up for them to be able to meet that without decreasing the services they currently offer?

Mr Duggan: This money will be additional. That is right.

Senator WRIGHT: Another aspect of funding issues for CLCs is with the proposed NDIS and the impact of that, people with disabilities will ultimately need access to advice and advocacy support to ensure that they get their proper entitlements under the NDIS. As part of the government funding of that, will this be reflected in funding for community legal centres and legal aid commissions to be able to meet the advice requirements which will potentially increase?

Mr Duggan: No final decision has been made on that issue. We will obviously be part of the broader government consideration of development of the NDIS. I can assure you we regularly raise with our colleagues the need to consider legal aid requirements whenever major policy decisions of this sort are being made but there has been no decision by government in that regard.

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