Independent Review of the National Legal Assistance Partnership 2020-25

The Reviewer recommends, consistent with recommendation 25.1 of the PC Report, the relevant Minister should, pursuant to section 9 of the Census and Statistics Act 1905 (Cth), direct Australian Bureau of Statistics to undertake a national legal needs survey at five-yearly intervals. The survey should collect data to measure both legal need and unmet legal need.

The surveys must address specific priority groups identified in the A2JP with sufficient granularity to identify jurisdictional and regional variations to support funding decisions.

The results of the first survey should be published by such a time as to be available for the review of A2JP and related matters.

Subject to annual expenditure timing, the Commonwealth should provide a total of $3 million in 2024-25, $6 million in 2025-26 and a further $41 million over the life of A2JP.

There are parts of Australia where there are little or no legal assistance services provided to disadvantaged and vulnerable people. Governments should work with service providers and organisations like Victoria Law Foundation and the NSW Law and Justice Foundation to better understand these geographic areas of legal need and the nature and cost of the services needed to efficiently fill these gaps. The agreed cost of these services should be included in the step funding of the A2JP. Given the scale of this task it is likely it will take a number of years and priority should be given to those areas of greatest need and ease of implementation.

For those services funded solely by the Commonwealth (currently outside NLAP, but will become part of A2JP), the Commonwealth should undertake a similar exercise to ensure that services intended to be national in character are adequately funded to service all parts of the country.

The Reviewer notes that there are large parts of Australia, metropolitan and non-metropolitan, where the services of FVPLS are not available.

The Reviewer recommends that the Commonwealth should work with the FVPLS Forum, other FVPLS and other ACCOs providing services to Aboriginal and Torres Strait Islander women with a view to ensure complete national geographic coverage of FVPLS. The Reviewer expects this will involve the extension of the service areas of existing FVPLS, the establishment of new FVPLS and potentially the conversion of some existing ACCOs into FVPLS.

As a starting point, focus should be placed on the locations identified by NFVLPS noted in this Report.

The Reviewer considers that there is insufficient certainty around a range of Commonwealth administrative law matters for him to be able to make firm funding recommendations at this time.

Once these matters are settled, the Commonwealth should undertake a Legal Assistance Impact Assessment with a view to adjusting the baseline funding of those services who have substantial Commonwealth administrative law caseloads.

To address the persistent gaps in civil law assistance first identified by the Productivity Commission in 2014, and to help Australians experiencing legal issues as a result of cost of living increases, governments should provide additional funding for civil legal assistance services, including early intervention and mediation, to allow legal assistance providers to offer a greater number of services and prevent unresolved civil matters becoming criminal matters.

Particular focus should be placed on supporting statewide and national specialist CLCs (whether currently funded under NLAP or not) and providing resources to ATSILS and FVPLS to develop and implement culturally appropriate services for Aboriginal and Torres Strait Islanders services alone and in partnership with specialist CLCs. This should be done through the baselines process set out in chapter 7.

Further, the Commonwealth, states and territories should increase funding for additional civil and family law funding broadly in line with the recommendation 21.4 of the PC Report. The Reviewer expects this to cost all governments $459 million in 2025-26.

The Productivity Commission estimated in 2014 that around 60% of the cost associated with this recommendation should be borne by the Commonwealth – the Reviewer has not revisited this estimate.

The principle of ‘Commonwealth money for Commonwealth matters’ should not apply to Commonwealth funding of these grants.

The Reviewer recommends that governments include in the baseline funding for the A2JP sufficient funding for legal assistance providers to develop and maintain suitable preparedness to respond to community legal need in the event of natural disasters. By including in baseline funding, service providers will have flexibility in use of funds during disaster periods and other times.

The development of this service response should be led by jurisdictional governments recognising the need to involve LACs and community service providers and the unique geographic and climatic and cultural circumstances of different communities, especially where there are high levels of community property ownership. This funding should support partnering with other service providers, particularly external financial counsellors. It would be expected that some CLCs would be identified as leads for responding to disasters, based on their specialist capabilities.

Governments should develop funding packages for immediate deployment in the event of disasters, noting that these would sit outside baseline funding but would be able to be deployed in a flexible, tailored and responsive fashion. The initial size and scope of these packages should be determined with review mechanisms in place to adapt within weeks of the disaster event. The Commonwealth should share the costs of these packages equally with the states and territories.

The Reviewer recommends that funding for women’s legal services be separated from the general CLC stream and quarantined under the A2JP.

Each jurisdiction should establish a women’s legal assistance forum, including FVPLS, ATSILS, LACs and other CLCs, to consider how best to allocate any future women’s specific funding – consideration should be given to develop existing fora to undertake this work. The Commonwealth should be represented on these fora.

Additional funding of $0.25 million, commencing from 2024–25, should be provided to Women’s’ Legal Services Australia so it can function as the national women’s legal assistance peak.

The Reviewer recommends that the A2JP priority groups list be expanded to include:

• women
• LGBTIQA+ people
• people living below the ACOSS defined poverty line
• recent migrants, refugees and asylum seekers
• veterans and serving personnel.

The Reviewer considers there is little evidence that the NLAP framework has materially addressed the Closing the Gap Priority Reforms. To correct this the A2JP in its founding document must:

• recognise the shared responsibility of the Commonwealth, state and territory governments for both achieving those Closing the Gap targets that relate to the legal system and for the provision of legal assistance funding to achieve them.
• ensure legal assistance ACCOs and other representative organisations are involved in all decision making that involves the provision of legal assistance services to Aboriginal and Torres Strait Islander peoples.
• ensure legal assistance ACCOs have adequate funding to develop their organisations and people to enhance the scope, scale, quality and cultural appropriateness of their services. Resourcing in 2024-25 is recommended in recommendation 17 to assist with the implementation of the recommendations of this Review.
• commit governments to continuous improvement of their own engagement practices with legal assistance ACCOs and their clients.
• explicitly recognise Aboriginal and Torres Strait Islander data sovereignty in its data collection and reporting arrangements including in relation to the data held by non-ACCO legal assistance providers.

The Reviewer believes that better service co-ordination and service, including the appropriate level and scope of service provision by ACCOs, is best achieved by all Commonwealth legal assistance provided to ACCOs being brought together under a single agreement subject to the governance reforms recommended throughout this Report.

The Reviewer recommends the baseline funding for FVPLS be brought into the A2JP. The FVPLS would remain a separate, quarantined funding line administered by the Commonwealth Attorney-General’s Department, but the same model of funding be adopted as is set out in section 7.2 of this Report. The administration of ATSILS funding is not affected by this recommendation.

Consistent with the Closing the Gap Priority reforms the Reviewer recommends that governments should commission an independent review of specialised services provided by LACs and CLCs to Aboriginal and Torres Strait Islander clients to ensure that the allocation of resources by governments maximises ACCO involvement, while recognising that Aboriginal and Torres Strait Islander peoples have legitimate rights to access culturally appropriate services across the sector, and that there is a need to provide appropriate resources to deal with conflicts and service coverage issues.

This review should be co-designed with relevant ACCOs and consider the costs and benefits of reallocation of resources between existing service providers (including the transfer of funding, staff and premises and transitional costs where relevant), and any additional funding reasonably necessary for the ACCO to provide the relevant services.

The Reviewer is of the view that there is sufficient evidence to conclude that on occasions when new funding is provided for services with particular relevance to Aboriginal and Torres Strait Islander peoples, there has been inadequate consultation with relevant ACCOs regarding the deployment of such funding.

The Reviewer recommends that the A2JP requires each jurisdiction to establish a consultative forum to discuss and where possible agree how future funding for services for Aboriginal and Torres Strait Islander peoples is to be distributed between the relevant ACCOs and other service providers. Membership of these forums should include all relevant ACCOs in the jurisdiction plus a representative of the Commonwealth. Governments should consider how existing fora might be adapted to perform this task.

The Reviewer considers that access to interpreter services is essential for Aboriginal and Torres Strait Islander Australians to have proper access to justice and that funding is currently inadequate.

The Commonwealth together with the relevant jurisdictional governments and service providers should determine an adequate level of interpreter funding for legal assistance purposes as soon as practicable.

The existing funding distribution models that inform the distribution of NLAP funding should not be used for the development of the funding of the A2JP. The Reviewer’s alternative approach is set out in subsequent recommendations.

The Reviewer considers that there is an inefficiently high level of fragmentation in the current funding base.

In the setting of the baseline funding for 2025-26, all existing programs that have been favourably evaluated should be included in baseline funding unless there are particular policy circumstances where the program will terminate.

If pilots commenced before the commencement of the A2JP are subsequently positively evaluated, they should similarly be included in baseline funding.

In the future where governments undertake pilots, they should be undertaken on the basis that if successful, they will be deployed to all other relevant providers in the jurisdiction and included in ongoing baseline funding.

The Commonwealth, state and territory governments should abandon competitive tendering as the preferred means of allocating new funding for legal assistance services, moving away from funding individual services and programs. This will reduce compliance burdens, provide greater funding certainty, improve efficiency, and encourage greater collaboration and holistic service provision.

Competitive tendering should only be used where it is clearly the case that it will generate significant benefits over administrative allocation of funding.

The Reviewer recommends that the levels of funding for each community sector provider be reset to reflect the true costs of operating sustainable organisations.

This should be done on trilateral basis between the Commonwealth, state or territory governments and service providers.

Priority should be given to ATSILS and FVPLS followed by CLCs then LACs.

The Reviewer recommends in 2024-25 that $12 million be allocated to ATSILS and $4 million to FVPLS to ensure they have the capacity to develop their organisations and for other matters discussed in chapter 12.

The Reviewer recommends:

• For the period of A2JP grants of legal aid to private practitioners should be set at the same level as provided in the court scales (or some other relevant standard) where the matter is heard.
• The Commonwealth should provide $44m in 2024-25 and $46 million in 2025-26 for this purpose in relation to matters is funds under NLAP (apportioned 91% family matters, 7% criminal matters and 2% civil matters and excluding funding of ICLs which is the subject of as separate recommendation)
• State and territory Governments should provide $337 million in 2025-26 for this purpose in relation to matters it funds under NLAP (apportioned 85% criminal matters, 13% family matters and 2% civil matters).
• LAC baseline funding for 2025-26 should reflect this level of grants of legal aid across all categories of matters.
• LACs should be allowed to determine whether this additional funding is used for private practitioners or internal lawyers.
• A working group should be established with an independent chair, supported by independent consultants, to develop a framework for the future of the levels and structure of grants of legal aid, including for lawyer assisted alternative dispute resolution. This should include consideration of the cost of delivering culturally appropriate approaches. SCAG should consider these recommendations with a view to varying baseline funding in 2027-28.

The Reviewer recommends that:

• For the duration of the A2JP, the Commonwealth should fund LACs to provide ICLs appointed by the Family Courts at the relevant levels of the courts’ scales prevailing at the time the service is provided.
• LACs should be allowed to determine whether this additional funding is used for private practitioners or internal lawyers.
• If a court orders an ICL to procure expert reports or other material, those disbursements should also be funded at scale rates.
• The Commonwealth should provide $84 million in 2024-25 and $88 million in 2025-26 in this regard.
• Any cost orders made to the benefit of LACs for the provision of ICLs should be offset against the cost of providing ICLs. An annual reconciliation arrangement should be put in place to carry forward any over/under recoveries.
• For the duration of A2JP, where lawyers are appointed to independently represent children under state or territory laws (such as in some care and protection matters) state and territory governments should fund LACs to remunerate these lawyers in accordance with the relevant jurisdictional court scales. This should support adequate supply lawyers for state and territory matters and avoid them showing a preference for matters in the Family Courts.
• To the extent that ATSILS, FVPLS or CLCs are ordered by the relevant courts to provide ICLs as set out above, funding should be provided the relevant LAC on a pass-through basis – the order of the Court should be the sole criteria for provision of funding.

The Reviewer recommends that Governments should provide additional substantial funding in relation to a number of priorities matters the addition of new priority groups, addressing specific areas of geographic need, providing additional grants of aid in civil and family law matters and funding for disaster preparedness and response. These are captured in recommendations 2, 3, 4, 5 and 7.

As part of the step process, consideration should be given to providing additional funding for services that have been successfully piloted by other service providers where provided.

The Reviewer recommends that, once the funding for the base year 2025-26 is determined, subsequent years funding should be indexed each year by the sum of the expected growth in demand and the expected rate of growth in prices in the jurisdiction concerned.

In the event that the growth in the price index in any year exceeds forecast by more than 2%, then the forecast price index increase should be replaced with the actual price index increase.

In the event that agreement can’t be reached between governments about a new funding sharing approach, indexation as described in this section should be applied to all Commonwealth, state and territory funding streams.

The Reviewer recommends that when a government undertakes law reform (including but not limited to changes in law, policy or court procedure) that can be expected to change demand for legal assistance service it should undertake a Legal Assistance Impact Assessment (LAIA). The LAIA should consider the impacts for each affected legal assistance provider and determine what funding is required to provide appropriate services to affected clients irrespective of what the funding arrangements of services providers is.

Where significant impacts are found, the government of the jurisdiction making the changes should ensure that relevant legal assistance providers are properly resourced to deal with such impacts through an immediate and ongoing increase in baseline funding.

For the avoidance of doubt, a policy measure that reduces demand should lead to funding reductions, but these should be deferred until two years after the implementation of the measure or the end of the A2JP, whichever comes earlier.

The Reviewer recommends that governments work with peaks and the relevant unions to develop a portable entitlement scheme for all workers in the legal assistance sector, including LACs. At a minimum this scheme should address long service leave but consideration should be given to including others, such as sick and parental leave, where appropriate and when the benefits of increased labour market mobility outweigh the incremental costs to the scheme.

The Reviewer recommends that the Commonwealth Government, in collaboration with unions, state and territory governments and peak bodies, develop a national workforce development strategy for the legal assistance sector to attract and retain a skilled, well supported, and diverse workforce. This strategy should address:

• development of a robust data set on the legal assistance workforce as part of the improved approach to data discussed in chapter 10
• attraction and retention strategies
• remuneration and entitlements, including portable entitlement schemes
• continuing professional development and supervision
• career pathways and progression.

It is recommended that $5m be provided by the Commonwealth for these purposes in 2024-25 with a view that ongoing funding of the strategy be shared by the states and territories during the A2JP

The Reviewer recommends the Commonwealth Government should provide additional funding in last year of NLAP (2024-25) to increase the remuneration of both legal and non-legal staff working in CLCs, ATSILS and FVPLS to equivalent pay as that of the LAC in the respective jurisdiction. The estimated cost of this in 2024-25 is estimated to be $66 million - $35 million for CLCs, $25 million for ATSILS and $6 million for FVPLS. The estimated cost of this in 2025-26 is estimated to be $69 million - $36 million for CLCs, $26 million for ATSILS and $7 million for FVPLS.

To access this funding, which can be back dated to 1 July 2024, the relevant service providers must demonstrate employment conditions have been varied and approved through the relevant industrial processes. No funding is to be provided to service providers for 2024-25 who fail to have necessary workplace arrangements in place by 30 June 2025.

This funding should be embedded in the baseline funding moving forward.

Commencing in 2025-26, the Australian Government should establish a HECS-HELP forgiveness scheme for rural, regional and remote community sector lawyers and those in private practice doing substantial legal assistance work, and should leverage the learnings of similar schemes currently administered for the medical and teaching workforces.

Under the assumption that HECS-HELP balances are only forgiven after 5-years of continuous service, the cost of the first cohort (commencing in 2026-27) will be realised in 2030-31, estimated to be $6 million.

States and territories should fund an extension to the scheme to cover LAC lawyers working in regional areas to avoid distortions in the regal assistance labour market.

The Reviewer considers current interpretations restricting baseline funding to the provision of legal services inhibits service provider flexibility and the development of holistic wrap-around services.

The Reviewer recommends that the A2JP make clear that funding provided under it may be used in pursuit of all of its outcomes and is not limited to the employment of lawyers and their direct support staff. Such a provision should be included in service contracts.

The Reviewer accepts that strategic advocacy and law reform activities that seek to identify and remedy systemic issues, and so improve access to justice and reduce demand for frontline services. This work should be recognised and encouraged as core work for the sector.

As such, the Reviewer recommends that the A2JP primary agreement explicitly acknowledge the importance of advocacy and law reform in the work undertaken by all legal assistance providers covered by the A2JP and that this inform the establishment of baseline funding recognising the different levels and types of work undertaken by different providers.

Governments should consider how pooled funding arrangements might be put in place in smaller jurisdiction to support existing collaboration by legal assistance providers to undertake this work.

The Reviewer recommends the Commonwealth establish a Justice Technology Innovation Fund to:

• fund the development, trial and evaluation of technological solutions and digital tools for the legal assistance sector, including the application of artificial intelligence technologies–
• consider opportunities for expanding the deployment of digital tools across all jurisdictions that have been successfully evaluated
• explore technology partnerships between legal assistance providers, governments and other community organisation.

The Fund should be governed by a Board comprising of no less than six people and no more than ten people.

The Board must at all times be able to demonstrate the following skills are present:

• an understanding of the use of technology by people within the priority groups
• an understanding of the provision of legal assistance services in Australia
• an understanding of the deployment of technology to community-based organisations, and in particular ACCOs
• assessment, risk management and governance of high risk grant programs
• venture capital and start-ups
• cyber security
• ethical issues including those related to the law and the application of technology
• application of technology to the resolution of disputes
• the training of workers in the use of legal technology systems
• Aboriginal and Torres Strait Islander data sovereignty and self-determination.

The Commonwealth should provide initial funding of $5 million in 2025-26 with supporting contributions to be made by all governments and other parties over the life of the A2JP.

The fund may accept funding from non-government sources subject to the approval of the Commonwealth Attorney-General who should publish guidelines for such contributions alongside and investment guideline for the fund no later than 30 June 2025.

Initial annual funding of $0.5 million be provided in 2024-25 and 2025-26 by the Commonwealth to meet these governance objectives and to recruit the Board. Remuneration of directors should be determined by the Remuneration Tribunal. The remuneration of the Board and the other expenses of the fund should be funded by the Commonwealth.

Despite the benefits of a longer agreement, given the scope of the reform challenge proposed by the Reviewer, the A2JP should have a five-year term commencing 1 July 2025.

The costs and benefits of a longer term should be considered by the next review.

The Reviewer recommends that the term of future service provider funding agreements should match the term of the A2JP. In particular, short duration core funding agreements for FVPLS and some CLCs must be replaced by five-year agreements commencing 1 July 2025.

The Reviewer considers that there would be significant transparency and administrative efficiencies gained from the consolidation of Commonwealth legal assistance funding administration in the Attorney-General’s Department. To this end:

• administrative arrangements should be put in place to ensure funding from non-AGD Commonwealth sources is provided through AGD with appropriate monitoring arrangements designed to minimise the number of service provider compliance engagements and contact points
• AGD should maintain an appropriate data set on all Commonwealth legal assistance funding to facilitate the publication of an annual Legal Assistance Funding Statement with the Budget Papers
• AGD should make public a consolidated database of all Commonwealth, State and Territory funding provided to legal assistance providers covered by the A2JP.

At the Commonwealth level, overarching guidelines must be established, setting a standard framework within which state and territory governments are to operate. These should be reflected in the Outcomes Framework and other A2JP documentation. The Commonwealth must play a leading co-ordinating role, providing clarity and certainty around roles and responsibilities.

To address widespread concerns of community legal sector providers about the absence of Commonwealth involvement and administrative challenges experienced with some with state and territory administrative arrangements, the Commonwealth, through AGD, should be a party to future funding deeds.

Peaks, the Commonwealth, state and territory governments should build on existing agreements to develop proforma service agreements for each of the four service provider types within the relevant jurisdiction.

The Reviewer recommends that states and territories departments should be responsible for the administration of funding provided by the Commonwealth for ATSILS, LACs and CLCs. The ability to delegate to government agencies other than the relevant policy department the responsibility for the administration of Commonwealth funding to a legal assistance providers should not be a feature of the A2JP.

The principle of ‘Commonwealth money for Commonwealth matters’ for the use of monies provided to LACs as set out line clause 63 of NLAP should not be continued in the A2JP wherever a state or territory gives an explicit commitment to provide funding over the life of the A2JP.

This increased flexibility will enable LACs to more effectively address emerging complex issues, including those associated with the cost of living such as mortgage and financial stress, tenancy and homelessness

Outside those service providers to be directly funded by the Commonwealth (FVPLS and those CLCs currently funded by the Commonwealth outside NLAP) the Commonwealth and each state and territory should agree and commit to minimum funding contributions over the life of the A2JP. The minimum amounts to be funded by each government in respect of each state and territory should be specified in a bilateral schedule to the A2JP bearing in mind the timing issues discussed in chapter 12.

Funding from the Commonwealth to the states and territories for the administration of NLAP should not continue in the A2JP with all governments adequately funding their own administrations in recognition of the fiscal benefits that they receive from the provision of legal assistance as discussed in section 3.2 of this Report. These resources are more appropriately devoted to funding legal assistance providers.

The Commonwealth, state and territory governments should agree an Outcomes Framework for the legal assistance sector. This should include a national set of outcomes and indicators with robust and consistent data to monitor progress towards national priorities and inform future policy and funding decisions. To the greatest extent possible, this should leverage previous work already done by the Commonwealth, state and territory governments and sectoral peaks.

Service contracts with providers should address a subset of the outcomes agreed by governments and their reporting obligations should be limited to these.

As a matter of urgency, the Commonwealth should appoint consultants to develop an Outcomes Framework for the A2JP for agreement prior to the commencement of the A2JP. In developing this framework, regard should be had to previous work and involve consultation with state and territory governments and service provider peaks. This is estimated to cost $0.5 million in 2024-25.

SCAG should consider and adopt this framework, or a variant of it, no later than 30 June 2025.

The performance indicators that underpin the A2JP should be revised to focus on Outcomes Framework set out in Recommendation 37 and have particular focus on the delivery on the Priority Reforms of the National Agreement on Closing the Gap.

The Data Standards Manual should then be redrafted to reflect the new set of performance indicators and address concerns raised by legal assistance providers and include elements relating to the costs of service provision.

The Commonwealth should lead engagement with state and territory officials and service providers to increase uptake of the DSM, ensuring alignment of definitions.

The Reviewer accepts the position put by a large number of stakeholders that CLASS should be replaced at the earliest opportunity without disrupting normal service delivery.

The Commonwealth should fund the development and effective implementation of (including training in) a legal assistance sector-wide data collection platform to provide a national repository that can collate data from other front end data entry applications. For the avoidance of doubt, this system should collect data on all services and sources of funding, including those services funded by the states and territories and any funded by the Commonwealth outside A2JP.

The platform should be implemented across all sub-sectors and should replace CLASS. Fields should be linked to the outcomes framework.

Once developed, provision of data to this system should be a condition of receiving A2JP funding.

The A2JP should require governments to commit to maximising the use of existing data collection points when providing additional funding for pilot programs. To the extent that data fields must be added, this must be agreed between the Commonwealth, the government providing the funding and the relevant peaks.

Efforts should be made to minimised duplication with ABS data collection and to align the systems to the greatest extent possible having regard to the costs of system development, user costs, and compliance and data security requirements.

Acknowledging that a replacement for CLASS will take a number of years, governments should work with service provider peaks to ‘optimise’ the use of the system with a focus on reducing reporting to data this is particularly useful.

To determine funding in 2024-25, 2023-24 funding should be indexed at a rate of 4.5% to which amounts from other funding recommendations should be added. It is estimated this will cost the Commonwealth $14.7 million in 2024-25.

In the event that the baselining exercise has not been completed in time to set funding for 2025-26 for any given community legal assistance provider, its funding be set at a level 10% higher than that provided in 2024-25.

In subsequent years, until the baselining exercise is completed, its funding should be increase by 10% each year.