Provision of legal services and supports

Question 11–2           In what ways can availability and access to Aboriginal and Torres Strait Islander legal services be increased?

11.67  There are four discrete but complementary categories of legal services that provide targeted and culturally appropriate legal assistance to Aboriginal and Torres Strait Islander communities, including Legal Aid Commissions, Community Legal Centres, Indigenous Legal Assistance providers such as the Aboriginal Legal Service (ALS) in each state and territory, and the Family Violence Prevention Legal Services (FVPLS). Commonwealth, state and territory governments provide the bulk of funding for the four legal assistance services.

11.68  While the level and mix of funding sources varies between these different service providers, the past three years has seen much uncertainty around the funding of these services following the expiration of the original National Partnership Agreement on Legal Assistance Services (NPA)­­­—a 4 year agreement between the Commonwealth and the states and territories—and the re-negotiation of a new agreement for 2015–2020.

11.69  The recent funding history of these legal services was articulated in the 2016 report of the Senate Standing Committee on Finance and Public Administration, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services[98] and also comprehensively described in the Productivity Commission’s 2014 Access to Justice Arrangements report.[99]

11.70  The ALRC specifically notes the Senate Standing Committee’s recommendation that the Commonwealth Government ‘adequately support legal assistance services’, and that funding should focus on:

  • Community legal education for Aboriginal and Torres Strait Islander people;

  • Outreach workers to assist Aboriginal and Torres Strait Islander people; and

  • Interpreters for Aboriginal and Torres Strait Islander people in both civil and criminal matters to ensure that they receive effective legal assistance.[100]

11.71  In 2013–14, the Productivity Commission considered funding of legal services and assistance and thereafter made several findings and recommendations targeting the legal services sector and those organisations servicing the Aboriginal and Torres Strait Islander community.[101] The Productivity Commission estimated at that time that the additional cost of adequately supporting this sector would amount to around $200 million per year.[102]

11.72  While an extensive in-depth examination of the provision of legal services and supports is outside the scope of the Terms of Reference to this Inquiry, in consultations to date, the ALRC has been told of the negative effects on the legal assistance sector stemming from funding uncertainty and the consequent negative impacts on incarceration outcomes for Aboriginal and Torres Strait Islander peoples. Notwithstanding the announcement that the funding reduction announced in 2013[103] would not proceed, the need for increased funding to the legal services sector, as recommended by the Productivity Commission, is noted. The ALRC acknowledges that the lack of access to legal assistance is a particular issue for regional and remote communities, and that this may have an impact on the incarceration rates of Aboriginal and Torres Strait Islander peoples.

[98]           Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 115–16.

[99]           Productivity Commission, Access to Justice Arrangements—Volume 2 (2014) chs 21–2.

[100]         Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016).

[101]         Productivity Commission, Access to Justice Arrangements—Volume 2 (2014) rec 21.4.

[102]         Ibid 738.

[103]         Announced in the 2013 ‘Mid Year Economic Financial Outlook’.