Can Whitlam’s legal aid legacy survive a funding shake-up?

By Harley Dennett

Wednesday October 22, 2014

It’s a Gough Whitlam legacy in the crosshairs of a federalism restructure: a successful Commonwealth-backed legal aid program that buttresses against “tough on crime” rhetoric in the states and faces an uncertain funding future.

Aboriginal and Torres Strait Islander legal services will have nowhere to go if, as some experts expect, the Commonwealth Indigenous Legal Assistance Program falls on the wrong side of the axe as part of clearing up the delineation between state and federal responsibilities.

While legal aid commissions and community legal services are jointly funded by the Commonwealth and states, ATSILS funding is entirely Commonwealth administered. This presents a problem for officials in the Attorney General’s Department, who previously ruled Commonwealth funds to the sector can only be spent on Commonwealth law matters, such as family and civil disputes. It’s not hard to guess where ATSILS has had to prioritise what little funding it gets: 90% of cases they take are criminal matters, a state jurisdiction.

The Council of Australian Governments secured a one-year stay-of-execution in June, giving time for the Commonwealth to consider Productivity Commission recommendations for the sector. The commission’s final report into access to justice arrangements is with the government for consideration and scheduled to be made public later this month.

A draft of the commission report by Dr Warren Mundy and Angela MacRae says “specialised legal assistance services for Aboriginal and Torres Strait Islander people remain justified” due to complex cultural and communication barriers, and suggests additional funding for unmet needs for indigenous people in civil justice and family law:

“Since these barriers are not just financial, even low cost remedies such as ombudsmen may prove inaccessible.

“If left unresolved, civil problems can have a big impact on the lives of the most vulnerable. Many examples were provided to the Commission of spiralling problems when legal assistance was not provided. Unmet civil legal needs can also lead to criminal legal issues. Not providing legal assistance in these instances can be a false economy as the costs of unresolved problems are often shifted to other areas of government spending such as health care, housing and child protection. Numerous Australian and overseas studies show that there are net public benefits from legal assistance expenditure.”

However, the commission also wants states to play a more active role in the National Partnership Agreement, particularly around civil justice and family violence prevention work done (if any) by state agencies:

“The policies of state and territory governments can impact significantly on demand for services provided by Aboriginal and Torres Strait Islander legal services and family violence prevention legal services. Given these services are funded by the Commonwealth Government, there are poor incentives for state and territory governments to consider the ramifications of their policy changes on demand for these Commonwealth funded services.”

Eddie Cubillo, executive officer of the National Aboriginal and Torres Strait Islander Legal Service, knows exactly what kind of state policies can have big ramifications for his Commonwealth-funded services. “Research suggests we need to do something different, but unfortunately ‘tough on crime’ wins elections,” he told The Mandarin. “If we go down that road of a National Partnership Agreement where money [goes through] the states, and their major issue is around incarcerating people, then that’s a worry.”

With current incarceration rates of Aboriginal and Torres Strait Islander people averaging 44 times higher than the rest of the population, and about a third of clients are under the age of 25, Cubillo is worried ATSILS won’t be able to meet the needs of a next wave of incarcerations. “Our work is increasing with increasing incarceration stats,” he said.

“We’re in a bit of a catch-22. We’ve $13.4 million about to be cut and we’re not clear on what exactly those cuts will be until our contracts run out in June. That’s our biggest worry. All the reviews highlight that there is unmet needs [in civil and family law], but there’s not enough discussion around money.”

In the last 10 years, the sector has already been through the standard rationalisation processes to squeeze efficiency: independent reviews, centralisation, and open tenders. Nobody else can or wants to do this job. Cubillo says everyone across the sector is continually trying to do better with the resources they have.

“Until recently we had very little funds to put into family and civil areas,” he explained. “We’ve had a one-off civil and family grant, under the Labor government, that’s about to expire.”

The first indigenous legal service opened with volunteers in 1970. Whitlam’s government funded and nationalised a network of agents between 1972 and 1974.

Government-funded legal assistance providers: what they got in 2012/13 (click for larger)
The government-funded legal assistance providers: what they got in 2012/13 (click for larger)

Cultural competencies in legal aid

ATSILS doesn’t just dole out legal advice and representation available from a duty lawyer or legal aid, and it’s more than just cultural awareness. Cubillo says the commission report was deficient in its appreciation of the work that ATSILS did and the complexities of the approach:

“Cultural awareness on its own does not lead to change in behaviours and attitudes,” he said. “Rather, cultural competency focuses on capacity to improve outcomes, integrating culture into delivery of services. Our organisations have people who are indigenous themselves, and our organisation has been around for 42 years, and they’ve developed these cultural competencies over that time, specifically for indigenous peoples in their areas. We’d lead people out to other organisations such as legal aid and private places, but they’d always come back because people don’t understand them and they can’t get across the message they’re trying to refer to others.

“They understand where these people are coming from. We’ve all got family members who’ve been through the system or going through the system.”

“Just the other day we had a case here, a client was abusing staff, basically our staff didn’t call the police or anything. They understand where these people are coming from. We’ve all got family members who’ve been through the system or going through the system. We also understand that behaviour is not called for, but we’re willing to give them extra time.”

Cubillo says government gets more than it pays for. “Individuals who don’t turn up to court, we’ve got things in place, field officers will ring and chase up that these people get to court so they don’t have an outstanding warrant. Also so it doesn’t slow down the judicial process and have a backup in the courts. These are things we do in our services that we aren’t funded to do,” he said.

A separate group of services funded under the program — family violence prevention legal services — also prioritise Aboriginal and Torres Strait Islander people but with a focus on domestic matters. National Aboriginal Family Violence Prevention and Legal Service Program national convenor Antoinette Braybrook told the commission’s Darwin hearing she didn’t support the amalgamation of the family violence prevention legal services with ATSILS because of the high number of conflicts due to its criminal focus. Braybrook said their clients needed to know they wouldn’t meet their abuses at their service:

“Aboriginal people are significantly over-represented as victim survivors of family violence, and Aboriginal women are 31 times more likely to be hospitalised for family violence than non-Aboriginal women.”

The funding uncertainty is also a problem for their service, Braybrook said.

In 2013-14, the Commonwealth Indigenous Legal Assistance Program provided assistance in 86,949 case matters, 90,102 advices and 29,436 duty lawyer matters according to Attorney General’s Department figures. A majority of outlets are located in regional and remote areas, and service the circuits and bush courts.

The entire legal aid and community legal service sector is staring down a perfect storm of federalism reforms, departmental reviews and Commonwealth austerity cuts. At risk is not just access to justice, but a costly compounding of problems for state-based services when disadvantaged people fall through the cracks.

Another review of the legal assistance sector for AGD published in June, and fed into the Productivity Commission inquiry, also identified the unmet needs in civil and family law, suggesting building the sector’s specialist skills around ASTILS and co-ordination. However, the report advised:

“There is no evidence to suggest, however, that improvements in efficiency would lead to cost savings of sufficient magnitude to meet current shortfalls in demand for services by disadvantaged Australians.”

The Productivity Commission has taken a wide view, highlighting deficiencies in the sector like people not knowing where to go for legal services or if those services are actually going to make them better off.

In the draft of its report, the commission proposed a variety of new reforms to improve access to justice, including a HECS-like income-contingent interest-free loan scheme as a tool for those that do not qualify for legal assistance to pursue cases of merit.

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