Review of the National Partnership
Agreement on Legal Assistance Services
Final Report
June 2014
Prepared for the Australian Government Attorney-General's Department
REVIEW OF THE NPA ON LEGAL ASSISTANCE SERVICES
Allen Consulting Group Pty Ltd
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Disclaimer:
While the Allen Consulting Group endeavours to provide reliable analysis and believes the
material it presents is accurate, it will not be liable for any claim by any party acting on such
information.
© Allen Consulting Group 2014
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REVIEW OF THE NPA ON LEGAL ASSISTANCE SERVICES
Preface
The Review of the National Partnership Agreement on Legal Assistance Services
(the NPA) was undertaken over the period May 2012 to June 2013. The Review
entailed a number of phases drawing from existing information, gathering new
information and an ongoing process of consultation with the legal assistance sector
and the justice system more widely.
A draft of the Review report was released to members of the project governance
committees in April and May 2014. In view of the passage of time since the draft
was completed, feedback was sought on any matters of fact. The governance
committees included state and territory justice departments and national bodies
representing the providers of legal assistance services.
This report draws together each of the Review components into key findings and
the emerging challenges for legal assistance services. A series of working papers
detail the analysis that has informed this report. The working papers report on the
following components of the Review.
•
Development of the NPA evaluation framework (working paper one).
•
Assessment of the quality, efficiency and cost-effectiveness of legal assistance
services through implementation of the NPA evaluation framework (working
paper two).
•
Analysis of the market for legal services, including legal assistance services
(working paper three).
A separate report has been prepared on progress towards the NPA objectives,
outcomes and outputs through the legal aid commissions (the legal aid commission
report). This assessment is based on the performance benchmarks and indicators set
out in the NPA for services funded under the NPA. Of the four types of legal
assistance services programs reviewed, legal aid commissions are the only services
to be funded by the Commonwealth under the NPA and accountable for reporting
on the agreed national performance benchmarks against the NPA performance
indicators.
This report presents options to address challenges to the provision of effective legal
assistance services emerging from the key Review findings. These options are
aimed at both shorter-term improvements to existing arrangements as well as
setting out potential areas for action to achieve more substantial system-wide
reform.
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Acknowledgments
The Allen Consulting Group acknowledges the generous participation of all
stakeholders approached for input to the Review. The project team has valued the
time taken and depth of insights provided by stakeholders especially through the
input of legal assistance service providers and employees within Aboriginal and
Torres Strait Islander legal services, community legal centres, family violence
prevention legal services and legal aid commissions.
Important perspectives have been contributed by peak organisations within the legal
assistance service sector; legal system representatives including courts, judiciary,
police, law societies and bar associations; legal assistance jurisdictional forums; and
other organisations and individuals who interface with the legal assistance service
sector.
We also acknowledge the guidance and support of the Review Steering Committee,
Review Advisory Committee and the Australian Government Attorney-General’s
Department.
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Contents
Abbreviations
Executive Summary
vii
Introduction
viii
Key Review findings
viii
Short to medium term improvements
ix
Significant reform options
xi
Conclusion
xii
Chapter 1
Introduction
1
1.1 Review of the National Partnership Agreement on Legal Assistance
Services
1
1.2 Legal assistance services
2
1.3 Review scope and approach
4
1.4 This report
5
Chapter 2
Key Review findings and implications
7
2.1 Justification for government intervention in the legal services market,
and why reform is needed
9
2.2 Meeting the legal needs of disadvantaged Australians
9
2.3 Key evaluation findings
13
2.4 Funding arrangements
19
2.5 Preventive and early intervention legal assistance services
19
2.6 Key challenges and implications
20
Chapter 3
Short to medium term improvements
22
Key points
22
3.1 Meeting the legal needs of disadvantaged Australians
23
3.2 Service delivery system and institutional arrangements required to
deliver these services
30
Chapter 4
Significant reform opportunities
4.1 Client-centred service delivery
32
33
4.2 Coordinated system governance, planning and funding to support client
centred services
34
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4.3 Outcome measures and performance indicators
41
4.4 Increasing participation of the private profession
42
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Chapter 5
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Conclusion
Glossary
43
44
References
48
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Abbreviations
The Allen Consulting Group
AGD
Australian Government Attorney-General’s Department
ATSILS
Aboriginal and Torres Strait Islander legal services
COAG
Council of Australian Governments
FVPLS
Family violence prevention legal services
LAASC
Legal Assistance Advisory Standing Committee
LAC
Legal aid commissions
LAW Survey
Legal Australia-Wide Survey: Legal need in Australia
NACLC
National Association of Community Legal Centres
NPA
National Partnership Agreement on Legal Assistance Services
NSW
New South Wales
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Executive Summary
Introduction
The Australian Government funds four programs of legal assistance provided by
Aboriginal and Torres Strait Islander legal services (ATSILS), community legal
centres, family violence prevention legal services (FVPLS) and legal aid
commissions, supported by the private legal profession. The National Partnership
Agreement on Legal Assistance Services (the NPA) provides shared objectives,
outputs and outcomes for these Commonwealth funded legal assistance services.
The Allen Consulting Group was commissioned by the Australian Government
Attorney-General’s Department to review the contribution made by the
Commonwealth funded legal assistance services to achievement of objectives and
outcomes specified in the NPA. The Review was undertaken from May 2012 to
June 2013.
Key Review findings
Service effectiveness, efficiency and quality
Legal assistance service providers are providing services to disadvantaged
Australians that are relevant to the needs of this diverse and complex population.
However, there are significant levels of unmet demand for legal assistance services,
particularly by the most disadvantaged, across a wide range of areas of law and
service categories.
There is also scope to improve the coordination of legal and related support services
provided to clients with complex needs to reduce the impact that legal problems
have on these clients’ lives.
Efficiency of service provision varies across and within service provider types
indicating room for improvements in efficiency overall. 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.
Services are, in the main, of appropriate quality. Some quality concerns were
attributed to high caseloads, inexperienced staff, ability to attract and retain staff in
regional and remote areas and gaps in quality assurance processes.
Justice system participants generally view efforts made by legal assistance service
providers to assist with the earlier resolution of legal problems as effective.
However, preventative and early intervention efforts could be more effective with
greater local planning and a coordinated approach that made best use of available
resources and expertise.
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Funding approach
Current approaches to funding do not support delivery of legal assistance services
that could effectively implement policy and priorities set by Commonwealth, state
and territory governments. Constraints identified in achieving the NPA objectives
related generally to costs of providing legal assistance services, with areas of stress
including staffing, changes in demand linked to government policy and provision of
services to complex high-need clients, and servicing regional and remote locations.
Greater clarity about funding and services to be provided is required. In addition,
the various agreements, reporting and funding flows mean that NPA objectives are
not always adequately reflected in service delivery, especially for those services not
funded under the NPA. This impacts on the provision and management of an
integrated legal assistance services sector that is well equipped to meet the legal
needs of the most disadvantaged in our community.
The challenge
The broad challenge facing legal assistance service policy and service delivery is
how to effectively meet the legal needs of disadvantaged Australians. There are
various actions that will support delivery of legal assistance services in a manner
that better meets this challenge. While improvements can be made within existing
institutional/funding arrangements, securing equitable access to justice for all
priority groups and their range of legal problems will require increased resources,
as well as significant system reform.
Short to medium term improvements
Short to medium term options that would achieve improvements largely within
existing institutional arrangements are described below. These options are framed
according to the services required to meet the legal needs of disadvantaged
Australians and the service delivery and institutional arrangements needed to
deliver these services.
Meeting the legal needs of disadvantaged Australians
Greater direction is needed from government about who should receive publicly
funded legal assistance services and for what kinds of legal problems. There should
be a strengthened client-centred approach that enables consideration of the
capability of the person along with the importance/complexity of the legal problem
faced. Eligibility for legal assistance, as well as service responses, should focus on
mitigating the total impact of legal problems on a person’s life, rather than
considering each legal problem separately. Legal assistance services should focus
on working with other service providers to incorporate all of a person’s legal, and
non-legal, problems. Addressing the perceived impediment of the funding and
administrative distinction between Commonwealth and state/territory legal matters
would facilitate a shift towards incorporating all of a person’s legal needs. This
distinction exists for legal assistance services provided through legal aid
commissions.
Establishment of mechanisms to ensure appointment of a legal case manager and/or
liaison with an external case manager would improve coordination of services for
clients with complex needs and multiple/frequent legal problems. This has the
potential to improve individual outcomes, as well as reduce service costs.
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Strengthened collaboration with Family Relationship Centres (FRC) should
contribute to meeting demand in a consistently high area of need and offers an
efficient approach to resource allocation. Approaches could include building on
early intervention efforts to provide tailored legal advice to FRC participants,
augmenting FRC capacity to manage complex cases involving family violence
issues and supporting the development of cultural competencies within FRCs.
Establishment of simple, streamlined, front line interfaces would enhance access to
legal help for disadvantaged Australians, as well as reduce any overlap in current
front line services.
There is a significant opportunity for adoption and sharing of good practices.
Currently there are disparities in adoption of good practices and associated maturity
levels across and within Commonwealth funded legal assistance programs. More
could be done to build on the sector’s specialist skills, such as those of ATSILS to
ensure both legal assistance and related non-legal service providers are able to
respond to the complex and diverse needs of disadvantaged groups.
Service delivery system and institutional arrangements
A more coordinated approach to commissioning of research is needed to strengthen
the evidence base to inform where preventative and early intervention activities can
promote the best outcomes. Agreed research priorities coupled with specific
accountability for development of a national plan for education and information
activities, would significantly increase the impact of resources devoted to this area.
A review of current funding arrangements is needed to improve incentives and the
capacity to support service providers to achieve government priorities and
objectives. Potential improvements include moving towards specific output targets
that are closely tied to policy objectives to ensure services delivered are focused on
meeting the legal needs of the most disadvantaged, or introducing activity based
funding in conjunction with a funding cap. Activities might be made up of a mix of
services and weighted allowing activity targets to be nominated with a view to
contributing to national priorities and meeting local needs. This approach could be
supplemented with periodic outcome-based evaluation to confirm quality and
effective servicing of the target populations.
Separately, the total funding envelope could be indexed using an approach that
adequately accounts for cost and demand factors. For this purpose, a composite
index tailored to legal assistance services could be developed using a similar
approach to that implemented for national hospital funding.
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Significant reform options
A national policy
A more streamlined, formalised and systematic approach to legal assistance service
governance, policy and sector planning is proposed. A key element of this approach
is the state-wide planning of service priorities and delivery, underpinned by a
national legal assistance services strategic plan agreed by all governments. As for
similar strategic approaches, such as the National Disability Strategy, this plan
would provide a framework for a sector-wide approach to meeting the legal needs
of disadvantaged people and to tracking performance and progress on sector
reforms and system changes. The plan would provide the umbrella policy for state
level implementation plans.
Cost-effective service delivery
There needs to be further investigation into arrangements for more cost-effective
service delivery, in particular a collaborative system planning approach that
provides flexibility to fund, at efficient prices, existing service infrastructure
(including the private profession) to meet service targets and respond to identified
service gaps. A state-wide approach to telephone triage of persons seeking legal
assistance would assist in more appropriate use of existing resources.
Funding mechanism
Future funding for legal assistance services would benefit from a more direct link to
agreed service priorities and sector planning. Funding should cover an agreed level
of service delivery as well as providing incentives for reforms to improve service
effectiveness and efficiency.
Performance indicators
A national set of indicators with robust and consistent data are needed to determine
progress towards national priorities and inform future policy and funding decisions.
Refinements to the Review's evaluation framework represent an initial set of
national performance indicators for the legal assistance sector. These refinements
envisage a national strategic plan for the legal assistance services sector, reinforcing
the inclusive nature of the indicators as applicable across the sector. The plan would
also give better definition to priority population groups underpinning the change of
indicator emphasis from areas of law to meeting the needs of the most
disadvantaged. These indicators would be populated by periodic or ongoing
qualitative and quantitative data collection and address areas of focus including
whether the sector is providing the right services to meet the needs of the most
disadvantaged Australians, and providing services effectively, efficiently, in a
coordinated and sustainable manner. Data to assess performance against indicators
should include average unit costs for service categories, proportion of services
delivered to specified client groups and maturity of processes aligned to good
practice. Information about performance should be obtained from service providers
and assessment of effectiveness and quality should be supported by a periodic
survey of employees, clients, non-legal service providers and representatives of the
wider justice system.
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Conclusion
Legal assistance service providers are, in the main, providing appropriate quality
services to disadvantaged Australians. However, additional steps are required to
assist them in continuing to do so to a level that meets the expectation of a civil
society in addressing the needs of its most disadvantaged people.
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Chapter 1
Introduction
1.1
Review of the National Partnership Agreement on Legal
Assistance Services
The purpose of the Review of the NPA is described in the terms of reference as:
...to assess the progress of parties in achieving the objectives and outputs of the National
Partnership Agreement on Legal Assistance Services (NPA) and to establish a robust evidence
base for the development of policy and program implementation for legal assistance services
across Australia which are efficient and cost effective. (Request for Tender Part 2: Statement of
Requirement — Attachment A)
The NPA is an agreement between the Commonwealth and the states and territories
under the Council of Australian Governments (COAG). The objective and
outcomes of the NPA (see Box 1.1) envisage a national system of legal assistance
achieving a set of reforms (outcomes) through action (outputs) taken by legal
assistance services collectively and legal aid commissions specifically.
Under the NPA, ‘legal assistance services’ are interpreted as referring to ‘all of the
sector-wide legal service providers, including legal aid commissions, community
legal centres, Aboriginal and Torres Strait Islander legal services and family
violence prevention legal services.’ The Review focuses on the four
Commonwealth funded programs delivered by these service providers. For the
purposes of the Review, this suite of services is referred to as ‘legal assistance
services’. The NPA is designed to support a ‘holistic approach’ to reforms by legal
assistance services.
Box 1.1
NPA OBJECTIVE AND OUTCOMES
Objective
A national system of legal assistance that is integrated, efficient and cost-effective, and
focused on providing services for disadvantaged Australians in accordance with access
to justice principles of accessibility, appropriateness, equity, efficiency and effectiveness.
Outcomes
The Agreement will contribute to the following reforms across the legal assistance sector
and to successful outcomes to be achieved by legal aid commissions providing efficient
and cost-effective legal aid services for disadvantaged Australians in accordance with
Commonwealth legal aid service priorities:
a) earlier resolution of legal problems for disadvantaged Australians that, when
appropriate, avoids the need for litigation;
b) more appropriate targeting of legal assistance services to people who experience,
or are at risk of experiencing, social exclusion;
c) increased collaboration and cooperation between legal assistance providers
themselves and with other service providers to ensure clients receive ‘joined up’
service provision to address legal and other problems; and
d) strategic national response to critical challenges and pressures affecting the legal
assistance sector.
Source: COAG 2010, p.4
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Arrangements for the delivery of services by legal aid commissions are provided for
under the NPA while those pertaining to Aboriginal and Torres Strait Islander legal
services (ATSILS), community legal centres and family violence prevention legal
services (FVPLS) are contained in separate funding agreements. The NPA also
provides for the establishment of jurisdictional forums to facilitate improved
coordination and targeting of services and a 'National Advisory Body' (the National
Legal Assistance Advisory Body) to both inform and be informed by the
jurisdictional forums.
1.2
Legal assistance services
As shown in Table 1.1, the four programs vary in their program emphasis, scope of
service delivery and Commonwealth funding. Nonetheless, the programs operate
under a shared NPA objective and ‘are intended to provide an integrated range of
legal assistance services which cover an assortment of needs’ (Review Statement of
Requirement). The description provided in Table 1.1 is from the perspective of the
Commonwealth’s legal assistance funding program.
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Table 1.1
LEGAL ASSISTANCE SERVICES PROGRAM OVERVIEW
NPA OBJECTIVE: a national system of legal assistance that is integrated, efficient and cost-effective, and focused
on providing services for disadvantaged Australians in accordance with access to justice principles of
accessibility, appropriateness, equity, efficiency and effectiveness
Program
features
Aboriginal and Torres
Strait Islander legal
services (ATSILS)
Community legal
centres
Family violence
prevention legal
services (FVPLS)
Program
name
Indigenous legal
assistance and policy
reform program
Commonwealth
community legal
services program
Family violence
prevention legal
services program
Contribute to access to
legal assistance
services for vulnerable
and disadvantaged
members of the
community and/or those
whose interests should
be protected as a matter
of public interest
Provide legal services
and assistance to
Indigenous Australian
victims/survivors of
family violence or sexual
assault
$33.7M
$18.5M1
Objective
Commonwealth
funding
2011-12
To deliver legal
assistance and related
services to Indigenous
Australians
$68.2M
• Provide the
community with
improved access to
justice and legal
remedies
$195.1M
• Funding agreements
• NPA and funding
agreements
8 ATSILS
138 community legal
centres2
14 FVPLS
8 legal aid
commissions
• Majority of outlets in
regional and remote
areas
• Outlets predominantly
in metropolitan and
regional areas
• Servicing 31 high need
regional, rural and
remote areas
• Metropolitan, regional
and remote services
including 70 regional
outlets
Target
population
Indigenous Australians
or a partner or carer of
an Indigenous Australian
Those who do not
qualify for legal aid
focusing on the
vulnerable and
disadvantaged
Indigenous Australian or
a partner or carer of an
Indigenous Australian,
who is a victim/survivor
of family violence or
sexual assault, or a child
at risk of family violence
and in need of protection
Community with focus
on vulnerable and
disadvantaged people
Main areas of
law3
• Predominantly
criminal law
• Predominantly civil
and family law issues
• Predominantly family
law
• Civil and family law as
funds permit
• Small amount of
criminal law
• Predominantly family
law, domestic
violence, child
protection and injuries
compensation
• Access to Justice
principles
• Access to Justice
principles
• Access to Justice
principles
• Closing the Gap
• Social Inclusion
Agenda
• Closing the Gap
• Access to Justice
principles
• Social Inclusion
Agenda
• National Plan to
Reduce Violence
Against Women and
their Children
• Stronger Futures
• National Indigenous
Law and Justice
Framework
• National Plan to
Reduce Violence
Against Women and
their Children
• NPA to Reduce
Homelessness
3
• Provide access to
legal assistance for
the vulnerable and
disadvantaged
• Funding agreements
Related national
policies
2
Legal aid
services
• Funding agreements
Service
distribution
1
Legal aid
commissions
• National Indigenous
Law and Justice
Framework
• National Plan to
Reduce Violence
Against Women and
their Children
• Some criminal and
civil law
• NPA to Reduce
Homelessness
Figure does not include EIP (Early Intervention & Prevention) and program support funding.
Figure represents Commonwealth funded community legal centres
For legal aid commissions, the description relates to services provided under the NPS funding and does not include services provided in
areas of state and territory crime, and care and protection,
Source: The Allen Consulting Group adapted from program documentation
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Internationally, Australia is perceived as having a relatively strict and targeted legal
aid scheme supported by a professional, well organised legal assistance sector.
Unlike other countries such as England and Wales, services have remained tightly
rationed with a high degree of emphasis on out of court dispute resolution services
(DBCDE 2013). In comparison to jurisdictions such as France, there is less reliance
on the legal profession to provide below market value legal services to the
disadvantaged, which means that access to legal aid is distributed more evenly
across the population.
Whilst contracting out of legal services has typically been viewed as synonymous
with cost-efficiency, Australia’s per capita spend on legal assistance comes in much
lower than countries with contracted out services such as the UK. This is in part a
reflection of the extent to which support is available without requiring eligibility
checks (Bowles et al 2009). The use of mostly in-house lawyers by legal assistance
services also curtails costs. The availability of advice from initial advice through to
representation through the one service (for example, legal aid commissions) makes
the provision of legal assistance in Australia more ‘holistic’ than in other countries
where there is a greater division between the services offering initial advice and
those offering specialist advice or representation.
Whilst other countries may provide examples of innovative service delivery, such
models are not generally directly applicable to the Australian context given the
historical and systemic differences.
1.3
Review scope and approach
The Review was tasked with reporting on:
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aspects of service provision to disadvantaged Australians within and across the
four programs in the legal assistance sector and options for more coordinated
mechanisms for funding legal assistance services;
•
the extent to which legal assistance services address market failures;
•
the extent to which reforms under the NPA have been achieved in contributing
to earlier resolution of legal problems for disadvantaged Australians, better
targeting of services to those experiencing or at risk of experiencing social
exclusion, and increased collaboration within and beyond the sector;
•
options for better targeted legal assistance services funding arrangements; and
•
options for outcome measures and performance indicators relevant to each of
the four programs under future funding arrangements.
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REVIEW OF THE NPA ON LEGAL ASSISTANCE SERVICES
The Review has drawn on an extensive range of sources that provide qualitative and
quantitative information about legal assistance services at a system, program,
organisational and client level. This includes stakeholder perspectives and
feedback, legal assistance service client feedback, examination of organisational
processes and good practices, analysis of administrative data, and analysis of the
broader market for legal services and legal assistance services. Extensive
engagement was undertaken with legal assistance services and other stakeholders
across Australia to inform the overall approach taken by the Review. The Review
has also been guided by a steering committee comprised of representatives from the
Australian Government Attorney-General’s Department and state and territory
justice departments, as well as an advisory committee with representatives drawn
from the four legal assistance services, the Law Council of Australia, Public Interest
Law Clearing House and Family Relationship Services Australia.
The Review has a number of distinct components. Analysis and findings from each
of these components is set out in detail in a set of working papers that accompany
this report.
An evaluation framework (working paper one) was developed to collect and assess
data regarding the quality, efficiency and cost-effectiveness of ATSILS, community
legal centres, FVPLS and legal aid commissions. The resulting analysis is set out in
working paper two. This also includes an assessment of underpinning agreements,
funding models and governance arrangements. An addendum including suggested
refinements resulting from application of the evaluation framework has been
included in working paper one.
Analysis of the market for legal services across Australia, including legal assistance
services, was also undertaken (working paper three). The analysis included an
assessment of the effectiveness of the Commonwealth funded legal assistance
services in addressing market failure and opportunities to increase supply of legal
services to those who cannot currently afford to access services.
A second element of the Review details progress of the legal aid commissions
against the outcomes and objectives of the NPA in a separate Report on legal aid
commissions. The report includes analysis of performance against the NPA
benchmarks and indicators, and assessment of the adequacy of the NPA
documentation, including performance benchmarks and indicators, service priorities
and funding arrangements.
1.4
This report
The Review was undertaken from May 2012 to June 2013. This report draws
together findings from the components of the Review, identifying implications and
challenges facing legal assistance services. Potential options to enhance the existing
legal assistance system infrastructure in the short to medium term are identified,
together with longer-term options for more significant sector reform.
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The remainder of this report is structured as follows.
Chapter 2 provides an overview of key findings from the Review and examines
implications and challenges. The findings presented in this chapter are supported by
detailed analysis set out in the Review working papers.
Chapter 3 outlines short to medium term reform options, which could be
implemented largely within the existing system infrastructure and institutional
arrangements.
Chapter 4 canvasses more extensive reform options involving system-wide change.
Chapter 5 provides a brief overview and concluding comments.
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Chapter 2
Key Review findings and implications
Key points
Despite significant current government intervention in the provision of legal assistance
services, there remains significant unmet legal demand. It is therefore important to examine
Review findings with a view to identifying how the effectiveness of current government
interventions can be increased.
Key findings
Targeting disadvantaged groups
Legal assistance services were focused on people in the community experiencing one or
more forms of disadvantage. The current level of legal assistance however is insufficient to
meet demand for certain types of service (such as legal representation services) and legal
problems (related to civil law matters) and also affected the level of support able to be
provided for people with more complex problems, or linked non-legal problems.
Quality
Services were generally considered to be of a high quality. Some erosion of this standard
was occurring, however, attributed to high caseloads, inexperienced staff, difficulties in
attracting and retaining staff in regional and remote areas, and gaps in quality assurance
processes.
Efficiency
Service efficiency was difficult to gauge for many services due to a lack of adequate
baseline data regarding expenditure and costs in relation to service delivery. There was
opportunity for innovation and more robust internal processes to ensure service costs are
proportionate to the legal matter and that administrative costs are held at an appropriate
level.
Effectiveness
A sector-wide contribution to national priorities for legal assistance services required a
greater level of sector cohesion and direction. In the first instance this would benefit from
reduced Commonwealth and states/territories tensions through a client-focused approach
based on joint policy and planning for legal assistance services.
There was evidence of good practices in place to achieve service integration and
coordination. This remains an important requirement for effective and efficient service
operation. However, there is scope to improve the coordination of legal and related support
services provided to clients with complex needs to reduce the impact that legal problems
have on these clients’ lives.
Service sustainability was challenged by workforce and skills issues. These included staff
skill levels and recruitment and retention issues in regional and remote areas, as well as the
ability to outsource work and sustain volunteer effort. Sector collaboration and cooperation
was essential to managing these challenges and making the best use of available resources.
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Funding approaches
Current approaches to funding do not support delivery of legal assistance services that
enables effective implementation of policy and priority set by Commonwealth, state and
territory governments. Constraints identified in achieving the NPA objectives related
generally to costs of providing legal assistance services, with areas of stress including
staffing, changes in demand linked to government policy and provision of services to
complex high-need clients, and servicing regional and remote locations. In addition, the
various agreements, reporting and funding flows mean that the NPA objectives are not
always adequately reflected in service delivery, especially for those services not funded
under the NPA. This impacts on the provision and management of an integrated legal
assistance services sector that is well equipped to meet the legal needs of the most
disadvantaged in our community.
Prevention and early intervention
Preventative and early intervention efforts would be more effective if there were greater
local planning and a coordinated approach that made best use of available resources and
expertise.
Key implications
The broad challenge facing legal assistance service policy and service delivery is how to
effectively meet the legal needs of disadvantaged Australians. The Review findings suggest
that, while improvements can be made within existing institutional/funding arrangements,
securing equitable access to justice for all priority groups and their range of legal problems
will require increased resources, as well as significant system reform.
The challenge of meeting the needs of disadvantaged Australians has a number of layers:
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•
First, given that resources do not extend to meeting the legal needs of all disadvantaged
Australians deciding who is eligible for what kinds of legal services is a key policy
question for government.
•
Second is the challenge of providing high quality, integrated legal and non-legal
support services to individuals most vulnerable to substantial, multiple legal and nonlegal problems.
•
Third is the issue of how to address the legal needs of those who are not eligible for
legal assistance and do not have the capability to help themselves either directly or by
purchasing legal help.
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2.1
Justification for government intervention in the legal services
market, and why reform is needed
Analysis of the legal services market across Australia confirmed that there is a
significant gap between the number of people experiencing legal problems and
those accessing legal help. While precise quantification of this gap is not possible,
the LAW Survey (Coumarelos et al 2012) found that around half of respondents
experienced a legal problem over a one-year period, and a majority of these
experienced multiple legal problems. Advice from a professional or formal advisor
was sought for just over half (51.1 per cent) of problems. While it is not the role of
government to ensure that all people who experience a legal problem receive legal
help, there are circumstances where government intervention in the legal services
market, in the form of government funded provision of legal services, is warranted.
Traditional economic arguments relating to a failure of the market — in this case
the legal services market — which results in the allocation of resources in a manner
that is inefficient from a societal perspective, justifies government intervention
through the provision of legal assistance services. Other reasons for government
intervention include social welfare and public good objectives associated with
access to justice.
Although evidence suggests much has been achieved in ensuring disadvantaged
Australians have access to legal assistance services the continuing presence of
unmet demand by the most marginalised, indicates more needs to be done.
Questions remain about how to best target services and to maximise client
outcomes given current levels of government investment.
A more detailed supply and demand analysis of the legal services market (including
the legal assistance services market) and the reasons for government intervention in
legal services is available in working paper three.
The remainder of this chapter provides a brief discussion of some of the key
Review findings. An exhaustive overview of the Review findings (which are
available in the working papers accompanying this report) is not intended. Rather,
key overarching findings are drawn out and discussed according to their
implications and the key challenges which stem from them to be considered for any
future reforms of legal assistance services. This discussion is supported by
summarised case study examples provided by legal assistance service providers.
2.2
Meeting the legal needs of disadvantaged Australians
Client pathways
Community members experiencing legal problems can take a variety of pathways
(see Figure 2.1) dependent on their capability (including financial capability), their
understanding and experience of the law, and the availability of government funded
assistance. In conceptualising legal assistance services within these various
pathways it is important to consider not only those who are currently accessing
legal assistance, but also those who may not be receiving assistance due to a lack of
knowledge or otherwise.
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Figure 2.1
PATHWAYS FOR COMMUNITY MEMBERS EXPERIENCING LEGAL PROBLEMS
Source: The Allen Consulting Group
Evidence about the actions that people take in response to legal problems suggest
that these alternative pathways are important. The LAW Survey (Coumarelos et al
2012) found that no action was taken for 18.3 per cent of legal problems and things
were handled without advice 30.6 per cent of the time. Where advice was sought,
non-legal advisors were consulted relatively more frequently (69.7 per cent of the
time) than legal advisors (30.3 per cent of the time). Government advisors, health or
welfare advisors and financial advisors were all frequently consulted, depending on
the type of legal problem experienced.
These findings suggest that effectively meeting the legal needs of disadvantaged
Australians requires a broader perspective than legal assistance services alone. A
system wide perspective should consider how to enable community members to
recognise their legal problems and take the most appropriate path. This requires
consideration of interactions with private legal advisors, providers of related
support services and government advisors.
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Linkages between legal and non-legal needs
A system wide perspective also needs to consider linkages between legal and nonlegal problems. The LAW Survey (Coumarelos et al 2012) suggested that legal
problems tend to cluster, with common groupings including consumer, crime,
government and housing; credit/debt, family and money; and employment, health
personal injury and rights. In addition, many disadvantaged or socially excluded
groups are particularly vulnerable to legal problems, including substantial and
multiple legal problems. The LAW Survey identified people with a disability;
Aboriginal and Torres Strait Islander peoples; the unemployed; single parents;
people living in disadvantaged housing and people whose main income is
government payments as particularly vulnerable to legal problems.
These findings demonstrate that legal problems can have impacts on broader life
circumstances and act as a trigger for other non-legal problems. An illustrative
example of how these issues can play out in practice is given in Box 2.1, which
shows the complexity of issues and challenges involved in legal assistance service
delivery for a high need victim of family violence.
Box 2.1
CASE STUDY: LEGAL ASSISTANCE SERVICE DELIVERY FOR A HIGH-NEED VICTIM
OF FAMILY VIOLENCE
MBN is an Aboriginal woman who lives in a community in East Arnhem land. She has
been subjected to violence from her husband for more than 12 years. During the
relationship she had four children. She left the community where she lived with her
husband during her pregnancy with her fifth child. She went to the clinic to ask for help
and was evacuated to regional crisis accommodation. MBN remained in contact with her
husband and his family. As a result of this and other factors, MBN’s children were
removed from her. Her fifth child was removed after birth.
The North Australian Aboriginal Family Violence Legal Service (NAAFVLS) has assisted
MBN with legal representation in care matters relating to her children, including linking
MBN with local service providers to assist with counselling and are helping her with
applications for housing and in applying for a DVO against her husband.
MBN does not speak English and has hearing loss and a suspected acquired brain
injury, attributed to assaults against her by her partner. MBN lives transiently across two
remote communities. Communicating and taking instructions from MBN is achieved with
the support of a NAAFVLS Community Legal Worker, a local Aboriginal person who is
identified as a community leader, and who is employed to assist NAAFVLS staff meet
and communicate with non English speaking Aboriginal clients living in remote areas.
Source: summarised from input provided by North Australian Aboriginal Family Violence Legal Service
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These linkages mean that achieving effective outcomes in response to legal issues
for the most disadvantaged requires an integrated response to ensure that all
determinants of the problem or contributing factors are addressed. This includes
integration within legal services as well as between legal services and non-legal
services as contributing factors may relate to other legal problems and/or to issues
that are the focus of other agency supports. In relation to legal problems, half (49.7
per cent) of respondents to the LAW Survey reported experiencing problems in the
12-month reference period with almost one third (31.3 per cent) of these reporting
two or more legal problems (Coumarelos et al 2012 p57). For those experiencing
multiple legal problems, there was a tendency for these to occur in clusters such as
a combination of consumer, crime, government and housing problems (Coumerelos
et al 2012 p164). Just over one quarter (27.2 per cent) of respondents to the LAW
Survey rated the worst of their legal problems as having a substantial impact on
their lives (Coumarelos et al 2012 p59). The importance of this is highlighted for
the most disadvantaged, who may have lower capability for solving their own legal
problems and require more intensive support to successfully address their legal
issues.
There are also system efficiency ramifications in that mechanisms that help enhance
effectiveness of service delivery for the most disadvantaged and long term
resolution of outcomes can help to reduce their need for future services. The LAW
Survey found that a small proportion of the population (8.8 per cent) account for
64.5 per cent of legal problems experienced (Coumarelos et al 2012 p59). A study
undertaken by Legal Aid NSW in 2012 found that, of its 50 most frequent users,
almost half had been diagnosed with mental illness, over a third had a cognitive
impairment, two thirds had experienced homelessness and three quarters were
victims of neglect and violence. These statistics suggest that more intensive
assistance for the most disadvantaged may help achieve successful resolution of
their legal problems, as well as contribute to long term system sustainability.
The case study set out in Box 2.2 shows that even for a relatively simple legal
matter involving outstanding debts, the issues were linked to broader financial and
housing issues. In this case, a sustainable solution that provided for the most
effective outcome as well as minimising future burden on the legal assistance
services system required an assessment of all related issues.
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Box 2.2
CASE STUDY: LINKAGES BETWEEN DEBT, HOUSING AND FINANCIAL ISSUES
Client J approached a homeless service in the Riverina for financial assistance and was
referred to a Legal Aid NSW solicitor who provided regular outreach services at the
Centre. J had outstanding debts with a payday lender, a large utility account that she
was unable to pay, and a number of other debts. J sought assistance to pay these debts
so that she could afford to pay her rent and therefore remain in her tenancy.
The outreach Solicitor obtained documentation from the payday lender and sought to
challenge the loan on the basis of maladministration, as it appeared that the client was
unable to service the loan at the time of her application. The solicitor negotiated a
repayment of $900 of the loan to the client and a release from further obligations under
the loan.
In relation to the utility debt, the outreach solicitor liaised with the utility provider and had
her accepted under their hardship program. The Outreach solicitor also discovered that
although the client had been paying some money to the utility company through
Centrepay, it was insufficient to cover her usage, which would have resulted in the client
incurring another large utility bill. This was adjusted. In relation to her debt for past
energy use, the solicitor was negotiating with the utility provider to seek a reduction.
In the meantime the client was advised to seek energy financial assistance vouchers
from her local charity provider. The client’s case worker at the homeless service also
arranged for the client’s home to be assessed under the Home Saving Program to
reduce future energy expenditure. The client was also referred to a financial counsellor
for advice and support on budgeting. The outcome for this client was substantially
reduced overall debt and an improved awareness of how to appropriately budget in the
future.
Source: provided by Legal Aid NSW
2.3
Key evaluation findings
Working paper two provides detailed analysis and findings of legal assistance
service quality, efficiency and cost-effectiveness. This section sets out a brief
overview of the Review’s key evaluation findings against each evaluation question
set out in the evaluation framework (working paper one).
For the purposes of the Review, the definition of ‘legal assistance services’
provided in the NPA, which includes the four program types, has been applied in
interpreting application of the NPA objectives, outcomes and outputs. The policy
imperative and direction provided by these NPA objectives, outcomes and outputs
apply to all legal assistance services (also referred to as providers and sector) as
well as providing specific direction to legal aid services for Commonwealth funded
services provided through legal aid commissions. ATSILS, community legal
centres and FVPLS are not funded under the NPA. As a party to the NPA, the
Australian Government should require any separate funding agreements with
ATSILS, community legal centres and FVPLS for provision of Commonwealth
funded services, to be consistent with the policy directions for legal assistance
services under the NPA.
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Is the legal assistance sector providing the right services to support
achievement of the NPA objectives?
The Review found strong indications that current levels of service delivery were not
sufficient to support the NPA outcomes and objectives. These service shortages
have an impact on achievement of the NPA outcomes, including on early resolution
of legal problems. Some service providers were constrained in meeting the needs of
clients requiring more intensive assistance, in the form of ongoing task assistance
and/or legal representation, or where a range of legal and related support services
are appropriate.
Particular service gaps were found for civil law matters, including employment,
equal opportunity and discrimination law, migration and refugee law and
guardianship law. Analysis conducted by the Review highlighted that civil services
make up a relatively small proportion of total services, despite the high frequency
of these issues across the community. The Review received submissions from
courts, the judiciary and the private profession, which variously described civil law
service provision as ‘significantly less than adequate’ and subject to ‘significant
gaps.’ Submissions also highlighted that many civil law matters could be resolved
earlier if greater levels of assistance were available and that unrepresented parties
can use large amounts of court time and resources.
With exception of community legal centres, civil law was not a main area of focus
for legal assistance services. Commonwealth funded activity in this area was
restricted by scarcity of resources and the need to meet other service priorities,
including criminal law and family law matters. For instance, provision of civil law
services by ATSILS was limited in order to focus on criminal law matters, whereas
legal aid commission services for Commonwealth law matters most frequently
focused on family law matters.
This raises a challenge in relation to how to achieve government priorities,
including reduced unmet demand by area of law and disadvantaged group, within
constrained resources.
The Review found that strategic and operational planning to support achievement of
the NPA objectives was not performed by all service providers, and was relatively
immature in a number of ATSILS, community legal centres and FVPLS. It is noted
that these services are not funded under the NPA. However, examples of very
mature processes were reported by some organisations of each legal assistance
service provider type, indicating opportunities to share good practice between
service providers of the same type.
Is the legal assistance sector providing services to disadvantaged
Australians?
The Review found that service providers were focused on delivering legal
assistance to disadvantaged groups, and that the bulk of services were delivered to
individuals who are experiencing one or more forms of disadvantage.
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Despite this focus many stakeholders providing input into the Review expressed
concern that disadvantaged individuals were still unable to obtain legal assistance
services to meet their needs. These concerns were most prevalent for disadvantaged
groups with civil law matters. Certain disadvantaged groups for which service
shortages were highlighted included people with a mental illness, people with a
disability and people experiencing homelessness.
Processes to target services towards disadvantaged groups were in place across
service provider types at varying frequency of adoption and maturity levels. While
it is expected and appropriate that not all legal assistance service providers will
have processes to target all disadvantaged groups, as a minimum, where services
target people experiencing specific disadvantage the processes implemented by the
provider should be consistent and implemented in a manner that reflects
documented policy. It could be argued that the more targeted a service’s focus is on
areas of disadvantage, the more mature its processes need to be for ensuring that
quality and effective services are directed to that client group. The highest level of
maturity would require documented processes to be fully and consistently
implemented, measurement against set goals and a continuous process of review
and improvement.
The vast majority of ATSILS, FVPLS and legal aid commissions reported
processes in place to direct services to their specific target groups, however there is
room to improve the maturity of these processes. A far smaller proportion of
community legal centres reported having processes in place to direct services to
disadvantaged groups. While this in part reflects variation in target groups and
target areas of law across some community legal centres, there was some potential
for improved consistency in targeting of services by community legal centres.
Is the legal assistance sector providing services effectively (including of
appropriate quality)?
Overall, the Review found that service quality was considered by clients to be high
across the four programs. Consistently good feedback from clients commended
efforts of organisations and individual staff members across the sector and
demonstrated the high value that clients attribute to the legal services provided.
Notwithstanding this, a number of stakeholders in the wider legal system, including
courts, judiciary and the private profession, expressed reservations about service
quality, citing the inexperience of some legal practitioners and the breadth and
volume of work they were required to undertake, particularly in regional and
remote locations.
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The Review also found some gaps in the consistency and maturity of
implementation of quality assurance processes. While overall rates of adoption of
processes were high, gaps existed, particularly in relation to comprehensive and
accessible file review systems, processes to check advice and casework, procedures
to check the accuracy of community legal education materials and email policies. In
addition, maturity of quality assurance processes across service types was variable,
with legal aid commission processes generally well developed and some room for
further development of FVPLS and community legal centre processes. A significant
proportion of community legal centres and FVPLS reported their quality assurance
processes at a level of maturity where they may be partially or inconsistently
implemented. Given the centrality of quality to the provision of legal services, this
level of maturity is of concern. This finding, coupled with feedback about quality
concerns related to caseloads, raises a key challenge in relation to how to ensure
consistent service quality in the face of high demands and clients with complex
needs.
The Review also examined cultural competence as an indicator of service quality,
drawing on relevant literature that highlights a lack of cultural competence can
create access barriers for disadvantaged groups (Curran 2012). While most ATSILS
and FVPLS survey respondents indicated they have practices in place to support
delivery of culturally competent services to Aboriginal and Torres Strait Islander
peoples, responses by community legal centres and legal aid commissions indicate a
number of practices that could be adopted to improve the cultural competence of
services delivered both to Aboriginal and Torres Strait Islander peoples and to
people from culturally and linguistically diverse backgrounds. Areas where the
adoption of processes was particularly low included comprehensive cultural
competence training on commencing employment, and alternative methods of
servicing culturally and linguistically diverse groups.
Is the legal assistance sector providing services efficiently?
The Review found that a large proportion of services were unable to allocate
expenditure by service activity, such as the costs associated with provision of
dispute resolution. This limits the ability to track changes in efficiency, including
tracking changes in expenditure patterns and achievements against cost targets. In
the absence of this information, the efficiency analysis undertaken by the Review
focused on proportionate expenditure on administration, as well as whether services
appropriately control service costs.
This analysis showed that smaller services tend to have a higher proportion of
administrative to service delivery costs. While these results suggest that larger
organisations have economies of scale, some smaller organisations, particularly
community legal centres, use significant amounts of volunteer capacity (an average
input per community legal centre of close to two full time staff members), which
could contribute to relatively high administration to service delivery expenditure
ratio in the absence of assigning a value to volunteer effort.
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Processes to ensure costs are proportionate to the legal matter were in place for the
vast majority of legal assistance service providers, however, they were relatively
immature in a significant proportion of community legal centres and FVPLS. Given
the importance of these processes to ensuring appropriate allocation of resources
(important for efficiency and effectiveness) and to managing organisational risk,
there are opportunities for legal assistance service providers with immature
processes to adopt practices in place at other service providers. At least one
organisation of each service provider type reported their processes to be at the
highest level of maturity, providing opportunity to share good practices.
To what extent does program documentation, including the NPA, assist legal
assistance service providers to deliver services in line with the NPA
objectives?
The reforms encouraged by the NPA, including a focus on prevention and early
intervention and increased collaboration and cooperation, were generally supported
throughout the sector. Service provider feedback suggested some positive impacts
on service planning and sector-wide collaboration and cooperation.
Overarching constraints identified by service providers in achieving the NPA
objectives related to costs, with particular pressure points including staffing,
changes in demand linked to government policy and provision of services to
complex high-need clients, and servicing regional and remote communities.
The Review identified a number of other issues. A central thread to these issues was
that legal assistance services are not effectively operating as an integrated service
delivery system. The various agreements, reporting and funding flows currently in
place created a disconnect between the NPA objectives and service delivery,
particularly for ATSILS, community legal centres and FVPLS which are not funded
under the NPA. A divide between Commonwealth and state/territory funding for
legal aid commissions and associated divisions between priorities based on whether
a legal matter comes within a Commonwealth or state/territory law was seen as
problematic, undermining the ability of service providers to work towards delivery
of integrated services that address a range of their client’s needs. Finally, a shortage
of consistent and meaningful performance indicators and benchmarks across
programs impedes evaluation of service delivery.
Jurisdictional legal assistance forums established by the NPA were seen by forum
representatives as an important tool to facilitate integration and collaboration.
However, opportunities to greater leverage the jurisdictional forums were
identified, including mechanisms to share information across jurisdictions and a
more formalised role for forums in facilitating achievement of the NPA objectives.
Further discussion on the jurisdictional forums is provided in working paper two,
chapter 7.
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To what extent are legal assistance services provided in an integrated,
coordinated manner?
The Review found that most legal assistance services have processes in place to
support strong levels of referral activity with providers offering related service
supports. The maturity of processes varied considerably across and within service
provider types, indicating opportunities for sharing information and experiences in
this area. While progress in relation to integrated service delivery was substantial,
evidence suggested that integration remains in its infancy and there is room to
improve consistency in implementation, as well as how effectively referral
arrangements target local needs and conditions.
Few services have processes in place to provide management of individual clients
with multiple legal and non-legal needs. Improvements in this area would benefit
client outcomes by providing more integrated service delivery, which will be
essential for meeting the needs of the most disadvantaged.
To what extent is the legal assistance sector operating in a sustainable
manner, with particular emphasis on staffing and collaborative and
cooperative effort?
The Review confirmed the challenges associated with recruitment and retention of
lawyers in regional and remote areas. These challenges were highlighted by
stakeholders during various stages of the Review and reinforced by data showing
clear trends towards decreased average tenure for lawyers, social workers, client
service officers and administrative officers in regional and remote areas.
Implementation of processes to facilitate coordination and collaboration, and the
level of maturity of these processes was low compared to other organisational
processes examined by the Review. This points to an area for continuing focus to
better understand the opportunities, barriers and incentives to working together and
sharing good practices with a view to progressing the NPA objectives and
outcomes. Particular opportunities in this regard exist for prevention and early
intervention services, where in the absence of collaboration a risk of service overlap
and duplication could arise.
In relation to pro bono legal work, which is a factor in service sustainability, the
Review found that while currently acting as a valuable input into legal assistance
services across Australia, there are limitations on capacity to expand pro bono
input. The services demanded and skills needed for effective service delivery to
disadvantaged clients do not necessarily match the skills of private legal
practitioners, and at times the supervision and training necessary can detract from
cost-effectiveness. Moreover, there are limits on the levels of pro bono services that
can be reasonably expected from commercial businesses. As put by a submission to
the Review from the pro bono practices of Australia’s eight largest law firms, pro
bono services ‘cannot come close to filling the access to justice gap which exists in
Australia’.
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2.4
Funding arrangements
Assessment of funding arrangements for each program, against evaluation criteria
focused on appropriateness, efficiency, simplicity and flexibility, identified some
issues with current arrangements and areas for improvement.
Although legal aid commission and community legal centre funding is backed by
output based targets, funding of ATSILS and FVPLS is not, limiting ability to
determine on an ongoing basis whether service providers are delivering value for
money. Activity based funding provides an alternative approach that can be
informed by service plans and modified by other considerations, as appropriate.
There is also scope to improve transparency and equity in funding allocation for
community legal centres and FVPLS, which currently may fail to take into account
differences in demand levels and costs between regions.
Indexation of funding for legal assistance services is currently based on the Wage
Cost Index 1; a weighted index comprising the wage safety net adjustment and the
consumer price index. The Review compared the Wage Cost Index to other cost
indexes and demand indexes (for example, population growth), finding that
indexation is not keeping pace with either unit cost or service demand growth. A
composite index specific to legal services could be investigated similar to the
approach taken for Commonwealth funding under the National Healthcare
Agreement. This would seek to reflect, amongst other things, wages growth in the
legal sector more generally and assist in addressing issues of recruitment and
retention.
Analyses of funding arrangements for each program is set out in working paper
two, chapter 8.
2.5
Preventive and early intervention legal assistance services
Preventative and early intervention legal services have potential to increase
community capability and/or mitigate escalation of legal problems, thereby helping
reduce demand for legal assistance services. In addition, preventative and early
intervention activities can contribute towards alleviating the broader impacts and
associated costs of legal problems, which were identified by the LAW Survey as
including impacts on health, finances and relationships (Coumarelos et al 2012).
Early intervention can take many forms such as a reduction in violence through the
FVPLS where legal intervention may be initiated to secure avoidance of violence.
From a population perspective, Box 2.3 provides an example of prevention through
assisting communities to impose liquor licensing conditions, thereby building
community resilience to alcohol related legal problems. Further case studies and
discussion on preventative and early intervention are provided in working paper
three, chapter 5.
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Box 2.3
CASE STUDY: ATSILS PREVENTION ACTIVITIES
Since 1991, the Aboriginal Legal Rights Movement have assisted Aboriginal and
Torres Strait Islander communities who wish to impose liquor licensing conditions that
aim to reduce alcohol related violence in their communities. This work started in 1991
with license conditions being imposed on hotels in Nundroo, Nullarbor and Penong to
limit take away sales to people resident at, or travelling to, the Yalata community. This
has resulted in a significant drop in presentations to the Yalata clinic flowing on from
alcohol related violence. This work is continuing as instructed by the community.
Source: provided by the Aboriginal Legal Rights Movement
While stakeholders generally supported the view that legal assistance services were
contributing to the earlier resolution of legal problems, the Review found that this
contribution is to some extent inhibited by a shortage of mechanisms to
systematically identify and address the causes of legal problems. Due to the range
of services and government agencies required for a holistic preventative and early
intervention response to legal problems a collaborative, multifaceted approach is
needed, including a role for government in providing leadership and helping to
build the evidence to inform service priorities.
2.6
Key challenges and implications
As noted earlier, it is important to examine the Review findings in the context of
their implications for improving government intervention in the provision of legal
services. As such, this section discusses some of the challenges and implications
arising from the Review findings and identifies broad policy directions to address
these challenges.
Box 2.4 provides a brief summary of some of the key challenges and implications
from the Review findings presented in this chapter.
Box 2.4
REVIEW FINDINGS: KEY CHALLENGES AND IMPLICATIONS
Achieving government priorities and meeting unmet demand for legal services with
limited resources
Effectively meeting the legal needs of the most disadvantaged
Ensuring access to high quality legal assistance services in regional and remote areas
Ensuring consistent service quality in the face of finite resources and clients with
complex needs
Providing effective coordination for planning and delivering preventative and early
intervention services
Enhancing the operation of legal assistance services as a system, including through
coordination and cooperation between the Commonwealth and states/territories
Reducing the unmet demand for legal services by people who do not qualify for
government funded legal assistance but cannot afford to purchase legal assistance
Source: The Allen Consulting Group
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These challenges essentially relate to the broad question or challenge of how to
meet the legal needs of disadvantaged Australians. The remainder of this report
discusses challenges and reform options to address this broad challenge, looking
first at how the legal needs of disadvantaged Australians can be met and then
examining the service delivery and institutional arrangements, including
agreements and funding arrangements, required to achieve this.
First, there is the question of eligibility, that is, deciding who receives which kinds
of services. Given that resources do not extend to meeting the legal needs of all
disadvantaged Australians this is a key policy question for government. The
personal capability to solve legal problems and the impact that failing to address
problems can have on life circumstances suggests that questions of eligibility are
not fixed and may need to look beyond type of legal matter and, for example, may
not be restricted to issues of safety and liberty.
Second is the question of how to provide high quality, integrated legal and nonlegal support services to individuals most vulnerable to substantial, multiple legal
and non-legal problems. Integrated services are also important for the significant
proportion of individuals that seek help from non-legal advisors for ensuring triage
to the most appropriate service avenue.
Third is the issue of how to address the legal needs of those who are not eligible for
legal assistance and do not have the capability to help themselves either directly or
by purchasing legal help.
The remainder of this report examines potential reform options. The next chapter
examines short to medium term improvements that can be implemented largely
within existing institutional arrangements.
Options to underpin substantial improvements in service planning and delivery are
provided in Chapter 4.
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Chapter 3
Short to medium term improvements
Key points
Meeting the legal needs of disadvantaged Australians
Greater direction is needed from government about who should receive publicly funded
legal assistance services and for what kinds of legal problems. There should be a
strengthened client-centred approach that enables consideration of the capability of the
person along with the importance/complexity of the legal problem faced.
To effectively meet the legal needs of disadvantaged Australians an integrated response
focused on mitigating the total impact of legal problems on a person’s life is needed, rather
than considering each legal problem separately. This requires eligibility to shift towards
addressing the entirety of a person’s legal needs with less focus on the funding and
administrative distinction between Commonwealth and state/territory law matters.
Greater coordination of services for clients with complex needs and multiple/frequent legal
problems through case management has potential to improve individual outcomes, as well
as reduce service costs. These services should not necessarily be provided by legal
assistance service providers. Establishment of mechanisms to ensure appointment of a legal
case manager and/or liaison with an external case manager would improve service
coordination. Legal assistance services providers should investigate potential processes for
the management of the different issues faced by people experiencing multiple or frequent
legal problems.
Continued and improved collaboration with Family Relationship Centres to provide
community-based family dispute resolution for separating or separated parents has the
potential to extend the resources available in an area of high need, provide an appropriate
non-legal service setting for a proportion of clients and an efficient approach to resource
allocation, and reduce any service overlap. Improved collaboration would also strengthen
early intervention efforts.
Service delivery system and institutional arrangements required to deliver these
services
Establishment of simple, streamlined front line interfaces would enhance access to legal
help for disadvantaged Australians, as well as reduce any overlap in current front line
services.
Adoption of good practices and associated maturity levels vary widely across and within
Commonwealth funded legal assistance programs. There is a significant opportunity for
sharing of and learning from good practices. More could be done to build on the sector’s
specialist skills, such as those of ATSILS to ensure both legal assistance and related nonlegal service providers are able to respond to the complex and diverse needs of
disadvantaged groups.
A more coordinated approach to commissioning of further research is needed to strengthen
the evidence base to inform where preventative and early intervention activities can promote
the best outcomes. Agreed research priorities coupled with allocation of specific
accountability for development of a national plan for education and information activities
would significantly increase the effectiveness of resources devoted to this area.
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3.1
Meeting the legal needs of disadvantaged Australians
There are three broad potential approaches to better meeting the legal needs of
disadvantaged Australians. Unmet legal need can be addressed not only through
increased funding, but also through system efficiencies and initiatives to support
increased private sector responsiveness. These options are not mutually exclusive or
exhaustive. Improvements can be made within the existing funding envelope at both
a service provider and system level. The options outlined in this section focus on
measures to better target services, remove any service overlap and enhance service
effectiveness. However, to better address unmet legal demand, implementation of
any options would need to be accompanied by some additional funding.
Deciding who receives what types of services (client centred service
delivery)
Improvement option (a) — Increased clarity about who should receive which types
of services
There is a need for clarity from government about who should receive government
funded legal assistance and for which types of legal problems. This is required as
current funding levels are insufficient to meet the total demand for legal assistance
from disadvantaged Australians. Moreover, some legal problems (for example, nonpayment of a cat registration) are considered of insufficient importance to warrant
government funded assistance. A key policy question is which legal services
everyone should have access to, as a minimum, when living in a civil society.
Greater understanding is also required about which types of preventative and early
intervention activities are effective in reducing the demand for legal services, and
clarity on whose responsibility it is to fund such activity. As an example, currently
there are no limitations on access to some services such as the provision of
information and advice.
Figure 3.1 shows a conceptualisation of legal assistance services as a subset of legal
services generally. The diagram represents the legal services required by clients of
all capabilities (which includes capability to identify and understand they have a
legal problem and pay for legal services) facing a wide variety of legal problems.
The shaded area represents conceptually, the circumstances in which legal
assistance services are provided. The size and shape of the shaded area is
determined by eligibility criteria for services — reflecting government policy,
which considers both the capability of the individual and the importance and
complexity of the legal problem(s) — and by availability of resources to deliver
services.
Determining the policies and resourcing, and therefore the eligibility criteria that
describes the shape of the shaded area, is a key question for government. Given the
finite resources available for legal assistance services, they should not be expended
on addressing legal problems that do not meet a threshold level of importance, or
provide services to clients who have a high capability to address their legal
problems themselves.
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Figure 3.1
LEGAL ASSISTANCE SERVICES AS A SUBSET OF LEGAL SERVICES MARKET
Source: The Allen Consulting Group
Figure 3.2 illustrates the potential impacts of changes to government policy and/or
resourcing. If more resources are made available for legal assistance services, then
these can be spent to fill service gaps for individuals who, although meeting
eligibility criteria, do not currently receive services due to resource constraints (see
panel 1) or through a combination of increasing the scope of the types of legal
problems for which legal assistance services are provided and providing them to
more people (see panel 2). Alternatively, for a given amount of resources devoted
to legal assistance services, the scope of services could be reduced while providing
them to more people (see panel 3).
Another option is to invest in ways to reduce the need for legal services (and
therefore legal assistance services) by providing education and information to assist
people to avoid and/or resolve problems themselves, or at least before they escalate
to the point of requiring legal assistance. Diagrammatically this is represented by
reducing the complexity of the issue through early intervention, or by increasing an
individual’s personal capability to address the problem. Government could also
look to ways to stimulate a reduction in the cost of legal services so that more
people can afford to purchase services themselves.
Panel 4 shows, conceptually, two such strategies to shift people away from where
they need legal assistance services — education to increase their capability to
address their own problems, even if the complexity of their legal problem is
undiminished; and early intervention to reduce the complexity of a legal problem,
so that legal assistance services may not be required.
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Figure 3.2
REPRIORITISATION OF LEGAL ASSISTANCE SERVICES
1. FILLING SERVICE GAPS
2. INCREASE RESOURCING
3. REPRIORITISATION
4. EDUCATION AND EARLY INTERVENTION
Source: The Allen Consulting Group
In specifying who should receive which types of legal assistance services, it is
essential that consideration be given to both the capability of the person and the
importance/complexity of the legal problem(s) being faced, and to the intensity or
level of legal assistance services provided, which will vary depending on these
factors. Therefore it is not sufficient to define eligibility for services solely on the
characteristics and circumstances (capability) of the individual, nor by matter type
or area of law. For many of the most disadvantaged Australians it is the multiplicity
of legal problems facing them that result in substantial, negative impact on their
lives and reinforces their disadvantage.
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Detailed specification of who should receive which types of legal assistance
services is a matter for governments and is beyond the scope of this Review. As a
starting point, however, current policy settings and practice suggest the following
groups of disadvantaged Australians should be targeted for assistance:
•
children at risk;
•
financially disadvantaged people;
•
Indigenous people, particularly those who are victims/survivors of family
violence, those who are financially disadvantaged and those living in remote
communities;
•
people facing serious criminal charges; and
•
people experiencing or at risk of domestic violence.
Other groups that are of priority to government and experience problems in
accessing legal services include:
•
homeless people;
•
people with a disability; and
•
people with a mental illness.
In addition, workforce skills and service planning should have regard for the needs
of people from culturally and linguistically diverse backgrounds and those in
dispersed locations, especially within these priority groups.
Individuals from these priority groups are likely to require government funded legal
assistance services, particularly when they are also experiencing financial
disadvantage (which many do).
The types of legal assistance services that are provided should reflect government
priorities, but focus resources on legal problems that have a substantial impact on
people’s lives. Eligibility for legal assistance service should also involve
examination of the total impact of the legal problems being experienced on a
person’s life rather than considering each legal problem separately, with the service
response addressing as many of the legal problems as is required to diminish the
severity of the impact.
These principles mean that some legal assistance service providers may be required
to address a wider range of legal problems than they do currently (for example
FVPLS services may expand to address a wider range of related civil law matters
such as housing and social security), or work closely with other legal assistance
service providers who are able to address the broader range of legal problems being
experienced by clients. They also suggest less focus on the current distinction
between Commonwealth and state or territory law matters, and a greater focus on
addressing all of the person’s legal needs.
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It is suggested that the Attorney-General’s Department considers working closely
with representatives from state and territory governments, and with legal assistance
service providers, to agree the eligibility criteria for legal assistance services funded
by the Commonwealth. This would enable as uniform an approach to eligibility as
is practical, but also take into account the very different local circumstances and
demands experienced across Australia.
This approach also acknowledges that the legal practitioners engaged by the legal
assistance service providers will be required to exercise judgement regarding the
severity of the impact on peoples’ lives that various legal problems will cause and
therefore the appropriate level of resourcing provided to assisting the person to
address their problems. Such responsibility is appropriate providing appropriate
eligibility criteria, service guidelines, quality assurance and processes to ensure
proportionate responses to problems are in place.
Improvement option (a) — areas for action
Clear government policy about who should be eligible for which types of legal assistance
services.
Eligibility criteria which focus on the impact of the legal problem(s) on an individual’s life,
taking into account characteristics of the individual and the legal problem(s).
Less focus on the distinction between Commonwealth and state/territory law matters, and
greater focus on addressing the entirety of a person’s legal needs.
Improvement option (b) — More intensive management of people with complex
needs experiencing multiple/frequent legal problems
As noted in Chapter 2, a small proportion of the population account for a high
proportion of total legal problems. These problems are often complex and
intertwined with a range of other legal and non-legal issues. This indicates the need
for coordination of legal assistance provided to improve the outcomes achieved,
improving effectiveness, and reducing the costs of assisting them.
The Review found that relatively few legal assistance services have processes and
practices in place to provide for more intensive case management of individuals
with complex needs. It is not assumed that a case manager would necessarily come
from the legal assistance service provider, however establishment and utilisation of
such a process by legal assistance services, with specific responsibility for
coordination of legal services with the case manager, is likely to contribute to better
management of people with complex needs experiencing multiple/frequent legal
problems.
The key to intensive management of complex clients is about working
collaboratively to coordinate and deliver services and to develop and review a plan
to meet legal and non-legal needs. This approach is facilitated within FVPLS
through non-legal client support officers, usually drawn from the local Indigenous
communities being serviced by the FVPLS. Where case management responsibility
appropriately rests is dependent on the precise mix of client needs — for some
individuals with complex and multiple legal needs a legal case manager would be
necessary, while in other cases collaboration with a case manager within a related
support service organisation, would be appropriate.
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Time would need to be allocated to such coordination activities and, given its
importance, should be provided for in funding arrangements.
Improvement option (b) — areas for action
Establishment of processes within legal assistance services to case manage clients with
complex needs and/or coordinate legal services with an external case manager, with a view
to management of the different issues faced by people experiencing multiple or frequent
legal problems.
Specific provision in funding arrangements for case management and coordination activities
for clients with complex needs.
Providing integrated, coordinated legal and related support services
Improvement option (c) — Further development of collaboration with Family
Relationship Centres (FRCs)
FRCs have been established across Australia to provide community-based family
dispute resolution, largely as an alternative to litigation in the management of
parenting issues by separating or separated parents. The FRCs provide an
alternative dispute resolution mechanism to courts and legal assistance services and
the opportunity for early intervention with better outcomes for children through
cooperative parenting. Research suggests that there is opportunity for continued and
increased collaboration between FRCs and legal assistance services, building on
such initiatives as the Legal Assistance Partnerships Program.
This collaboration could assist in raising the profile of FRCs, especially among the
most disadvantaged, increasing utilisation of FRC support services through
arrangements to facilitate referrals, leveraging from the skills set of FRCs including
child-centred practice, and supporting FRCs by providing legal information and
advice early in the dispute resolution process. It could also assist in working with
FRCs in building cultural competencies and augmenting their capacity to manage
clients with more complex issues, especially those with a history of family violence.
This arrangement would extend the resources available to the clients of legal
assistance services, an efficient approach to resource allocation and avoid service
overlap. Improved collaboration would also contribute to meeting demand in a
consistently high area of need and strengthen early intervention efforts.
Improvement option (c) — areas for action
Strengthened collaboration with FRCs that builds on early intervention efforts to provide
tailored legal advice to FRC participants, augments FRC capacity to manage complex cases
involving family violence issues and supports the development of cultural competencies
within FRCs.
Improvement option (d) — Streamlining of front line interfaces and triage
arrangements
Disadvantaged people requiring legal assistance seek help in a variety of ways,
while some do not seek help for reasons including lack of recognition that they are
experiencing a legal problem and lack of knowledge about how to access help.
Streamlining front line interface arrangements would remove service overlap, thus
enhancing efficiency, as well as increasing the effectiveness of front line services
for clients.
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Establishment of state-based front line interfaces between eligible people requiring
legal help (including those assisting them) and organisations able to provide such
help would enable a simpler message to be disseminated throughout the community
and strengthen the community profile of legal assistance services. There are various
models that may be adopted to provide such an interface, encompassing website,
telephone service and hard copy information channels. Many legal assistance
service providers offer such services. There is scope to consolidate the multiplicity
of websites and telephone services aimed at providing front line services along the
lines of the Law Access NSW service. This type of service is well placed to provide
triage services for legal assistance within the relevant state or territory.
Establishment of streamlined front line interfaces and triage services do not replace
the need for face-to-face services (including outreach services) that specifically
target the most disadvantaged in the community, recognising that many of the most
disadvantaged do not have the personal circumstances that support effective use of
internet based, telephone or hard copy information. Design of services to meet the
needs of the disadvantaged Australians should take into account results of the Legal
Australia-Wide Survey: legal Need in Australia, Access to Justice and Legal Needs
(the LAW Survey) (Coumarelos et al 2012) that provides important evidence about
how the community experiences and responds to legal problems.
Notwithstanding any benefit to be gained from increased use of technology in
improving access to justice, there are also limitations to how far technology can
assist an individual to resolve a legal matter. For many, professional assistance will
still be required, particularly where the matters involved are complicated or the
application of the law to a particular problem proves difficult.
Improvement option (d) — areas for action
Establishment of simple state-based front line interfaces to streamline access to legal
assistance services for disadvantaged Australians.
Maintenance of face-to-face services (including outreach services) to target disadvantaged
individuals unable to access internet or telephone based services.
Improvement option (e) — Adoption and sharing of good practices
The Review found wide variety in reporting of the presence of good practices and
the maturity of associated processes both across and within the four Commonwealth
funded legal assistance programs. Service providers which identified that they have
good practices in place at a high level of maturity, meaning that goals associated
with the process are set, data analysed and improvements routinely integrated and
evaluated, sat alongside service providers with less mature processes, or without
any processes implemented.
This indicates significant opportunity for adoption and sharing of good practice,
which, in most instances could facilitate service delivery improvements within the
existing funding envelope. Specialist skills exist among legal assistance services,
such as the knowledge amongst ATSILS relating to culturally competent services
that are highly relevant across services. In addition, the Review notes that ongoing
implementation of the National Association of Community Legal Centres’
(NACLC) national accreditation scheme for community legal centres is assisting
with adoption and sharing of good practices across community legal centres.
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Specific areas where benefits could be gained from greater adoption and sharing of
good practice, drawing on the findings outlined in section 2.3, are:
•
strategic and operational planning;
•
processes to ensure services are directed to disadvantaged groups;
•
practices to support delivery of culturally competent services;
•
quality assurance processes are in place across all legal assistance service
provider types;
•
processes to ensure costs are proportionate to the legal matter;
•
referral processes; and
•
processes to facilitate collaboration and cooperation.
Improvement option (e) — areas for action
Implementation of mechanisms to facilitate adoption and sharing of good practices, building
on current industry good practice sharing initiatives such as the NACLC accreditation
scheme.
3.2
Service delivery system and institutional arrangements required
to deliver these services
Agreements and plans
Improvement option (f) — National plan for education and information combined
with local response and delivery
Increased effort has been directed to education and information activities as a result
of the NPA’s focus on prevention and early intervention. While stakeholder
feedback gathered during the conduct of this Review supported the conclusion that
such efforts were leading to earlier resolution of legal problems, there were limited
data available regarding this. There is opportunity to significantly increase the
impact of resources devoted to planning, development and delivery of education
and information activities.
There is a need for a more coordinated approach to commissioning research to
determine which types of preventative and early intervention activities lead to
behaviour change and to reduction in legal problems and earlier resolution of those
that develop. This approach has been implemented for evaluation of Indigenous law
and justice programs under the National Indigenous Law and Justice Framework
and includes best practice examples of diversion programs and night and
community patrols. Combined with this approach should be analysis of relevant
data sets to determine emerging trends in demand for legal assistance service —
including information passed on by legal assistance service providers — to ensure
changes in demand are reflected in education and information activities where
appropriate.
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There is also a need for government to allocate responsibility for educating the
community in general as well as specific groups within the community about legal
issues. Research should inform the approach taken to education and information
activities including the groups targeted, the content of activities, timing of activities
particularly with respect to the stage in an individual’s life and relationship to when
a legal problem is experienced, and the mechanisms through which education and
information are delivered.
Specific accountability should be assigned for development of a national plan for
education and information activities, for production and maintenance of high
quality materials, and for their delivery. Accountability for these steps is unlikely to
rest with a single organisation, rather a coordinated effort should lift quality of
outputs and reduce unnecessary overlap. The plan should provide for flexibility in
delivery at the local level to support appropriate delivery to meet the needs of local
communities.
Improvement option (f) — areas for action
A more coordinated approach to research to provide evidence about areas where education
and information activity can have the greatest impact on preventing and/or contributing
towards earlier resolution of legal problems.
Development of a national plan for education and information activity, allocating specific
areas of priority and service delivery responsibility.
Funding arrangements
Improvement option (g) — Updating of funding arrangements
The analysis of current funding arrangements provided in working paper two
(chapter 8), and discussed briefly in section 2.4, identified that there are
opportunities to improve funding arrangements for legal assistance services. Some
opportunities involve significant change to existing arrangements and these are
considered in the following chapter. A number of changes can be achieved with less
significant change to institutional arrangements, namely:
•
•
•
•
adoption of an approach to indexation that accounts for population growth in
addition to unit cost factors;
taking a more systematic view when allocating funding to specific legal
assistance service providers that better reflects demand for services and
availability of alternative suppliers in specific locations rather than relying on
historical allocations. In particular, the current approaches to funding
community legal centres does not address demand levels or cost differentials in
a systematic manner;
move funding of ATSILS and FVPLS towards output or activity based targets;
and
more closely tie output targets, and therefore funding, to policy objectives to
ensure services delivered are focused on meeting the legal needs of the most
disadvantaged Australians.
Improvement option (g) — areas for action
A review of current funding arrangements to provide appropriate indexation, as well as
moving towards targets that tie funding to desired policy objectives.
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Chapter 4
Significant reform opportunities
Key points
Coordinated system governance, planning and funding to facilitate client centred
service delivery
A more streamlined, formalised and systematic approach to legal assistance service
governance, policy and sector planning is proposed. A key element of this approach is the
state-wide planning of service priorities and delivery.
A national legal assistance services strategic plan agreed by all governments would provide
the underpinning framework for a sector-wide approach to meeting the legal needs of
disadvantaged people and to track performance and progress on sector reforms. The plan
should also provide the umbrella policy for state/territory level implementation plans.
Cost-effective arrangements for service delivery should be investigated further. Specific
areas include a state-wide approach to telephone triage of persons seeking legal assistance
and a collaborative system planning approach that provides flexibility to fund, at efficient
prices, existing service infrastructure to meet service targets and respond to identified
service gaps.
Future funding for legal assistance services would benefit from a more direct link to agreed
service priorities and sector planning. Funding should cover an agreed level of service
delivery as well as providing incentives for reforms to improve service effectiveness and
efficiency.
Options for outcome measures and performance indicators
A national set of indicators with robust and consistent data are necessary to determine
progress towards national priorities and inform future policy and funding decisions.
Refinements made to the Review's evaluation framework present an initial set of national
performance indicators for the legal assistance sector.
Increasing participation of the private profession
A sustainable reduction in the level of unmet legal need could be achieved by greater
involvement of the private legal profession on commercially acceptable terms. This could be
encouraged through mechanisms such as service delivery incentives and changes to
regulatory arrangements.
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4.1
Client-centred service delivery
Sections 2.2 and 3.1 provided discussion about how effective legal assistance
service delivery for the most disadvantaged Australians needs to focus on the
totality of each client’s needs, with eligibility criteria taking into account the needs
and characteristics of the individual, as well as the type of legal problem(s)
involved. This section goes a step beyond this, examining what significant changes
to the service delivery network would be required to achieve an effective shift in
service delivery focus from type of legal problem to the capability of the person and
strategic approaches suitable for differing levels of capability.
In some instances, targeting services according to the individual’s capability could
potentially improve capacity to address unmet demand by, for example, improving
capability for self-help. Further discussion and information about these strategies is
available in working paper three, chapter 5.
For clients with higher levels of needs, an effective client centred approach would
have implications for where and how service delivery occurs. Ensuring access to
services for the most disadvantaged groups requires different strategies that
effectively take the service to the person, whether in co-located facilities, in joint
service programs or locations where the person can be accessed such as homeless
shelters or remote communities. A current initiative of the Aboriginal Legal Service
of Western Australia (ALSWA) provides an example of leadership in improving
outcomes for clients. ALSWA is working with the community, service providers
and local funding sources to construct a Multipurpose Centre in Kalgoorlie for
Aboriginal community groups in the area. The Centre will be a culturally relevant
space that will provide a ‘wraparound service’ to ALSWA clients and their
families.
To better support an integrated approach, funding to address the legal needs of the
most disadvantaged (regardless of problem type) would need to include
coordination with providers of support services for eligible persons presenting
frequently. In addition, funding should focus on the person rather than type of law
matter, which means that the current funding divide for legal aid commissions
between Commonwealth and state/territory law matters, as a barrier to a client
centred approach, should be addressed.
Legal problems associated with those facing financial difficulties, including
housing, homelessness, social security can have significant implications for a
person’s ability to access basic needs. Addressing these ‘poverty law’ issues require
an understanding of the underlying issues and often a greater level of support is
needed. A client focus should be supported by development of poverty law as a
recognised specialisation/skill set.
Client-centred service delivery — areas for action
Funding focused on the person and the totality of their legal needs, including overcoming
barriers associated with funding based on type of law matter, and case
management/coordination for clients with complex or multiple/frequent issues.
Development of poverty law as a recognised specialisation or skill set.
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4.2
Coordinated system governance, planning and funding to support
client centred services
The client centred service approach discussed in section 4.1 would need to be
supported through significant changes to how legal assistance services are currently
planned, delivered and funded. This section discusses implications for system
governance, drawing on two key overarching design principles needed to support an
integrated, client centred service approach.
Design principles
1.
Service priorities and eligibility criteria that consider the characteristics of the
person, as well as the legal problem(s).
2.
Coherent system design and structure, encompassing coordinated mechanisms to
determine what services are needed and what providers are best placed to service
those needs.
The fundamental requirement is determining the specific roles of service providers,
and how an integrated approach is supported through contractual and funding
arrangements. This would occur through a number of system layers, commencing
with policy and priority setting, flowing down to system planning and through to
service delivery (see Figure 4.1 below).
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Figure 4.1
LEGAL ASSISTANCE SERVICE SYSTEM GOVERNANCE
Source: The Allen Consulting Group
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Policy and priority setting
The proposed governance arrangement for legal assistance services emphasises the
joint responsibility of governments and the ongoing need to develop innovative,
effective and efficient services to ensure a fair and accessible justice system.
A Legal Assistance Advisory Standing Committee (LAASC) comprised of senior
officials from Commonwealth, state and territory governments with the option for
inclusion of client representation, would provide advice to the existing senior
officials committee (NJ CEOs Group) reporting to the Ministerial forum; the
Standing Council on Law and Justice. Working groups convened on an as required
basis would provide technical advice to the standing committee on a range of
matters to build the evidence base for policy decisions and effective policy
implementation. The working groups would draw on a range of experts from
government, non-government, sector and system representative bodies and
academia.
Underpinning frameworks and agreements
A key role of the LAASC would be to develop a national legal assistance service
strategic plan. This plan, which would draw on input from working groups, and
legal assistance service providers more widely through information fed up from the
system planning level, would focus on strengthening sector collaboration and
coordination, as well as providing a strategic, holistic approach to meeting the legal
needs of disadvantaged Australians. The plan, to be approved by the Standing
Council on Law and Justice, would clearly specify:
•
overarching objectives and outcomes;
•
roles and responsibilities of the Commonwealth, states and territories and,
through governments as appropriate, service providers (including the private
profession);
•
policies and priorities on who should receive services, and what types of
services they should receive, providing high level direction to services and
informed by input from services through governments; and
•
reform directions.
The strategic plan would inform an intergovernmental agreement, which would
give effect to recurrent policies and priorities and outline the way in which the
strategic plan would be actioned, supported by state/territory based plans (see below
for further details). The intergovernmental agreement would include sector funding
arrangements and set national service outputs and targets, as well as evaluation and
performance measures. Scope would also exist to progress reform through a
separate supplementary agreement providing additional funding and/or incentives to
support achievement of specified reform priorities (for example, greater
preventative and early intervention services, support for improved outcomes
relaying to litigation services). This provides a level of resource transparency and
focus for change.
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Pooled Commonwealth and state/territory funding
The recommended client centred approach, and the associated shift away from a
focus on the type of legal problem towards the totality of an individual’s
characteristics and legal problems, have important implications for the structure of
Commonwealth and state/territory funding. The current division between funding
for Commonwealth and state/territory law matters for legal aid commissions would
need to be addressed, as well as the divide between Commonwealth and
state/territory funding for community legal centres.
As such, Commonwealth and state/territory funding would need to be pooled, with
contributions made on a proportionate basis. The Commonwealth contribution
might have regard for the existing level of funding, a matched arrangement,
analysis of legal problems and/or the proportion of people in a particular priority
population group. Separate funding could also be provided for specific reform
priorities if required.
The extent to which Commonwealth funds are tied to Commonwealth matters under
current arrangements involves about 80 per cent of funding for legal aid
commissions (based on 2011-12 national expenditure, see working paper two,
appendix D), although representing a significantly smaller proportion of activity. As
funding for legal aid commissions represents about 62 per cent of Commonwealth
funding for legal assistance services (see Table 1.1), approximately half of total
Commonwealth funding is tied to Commonwealth matters. This estimate does not
take account of the flexibility to address family law matters in conjunction with
presenting State law matters relating to family violence and child protection. Family
law is a dominant area of law for legal aid commissions. If it is a requirement that a
proportion of Commonwealth funding continues to be tied to Commonwealth
matters, this reinforces the importance of transparency in pooled arrangements
through a better understanding of the presenting needs of clients (the level and
nature of demand) and service planning at regional and state levels (setting service
priorities). The administrative requirement to account for expenditure on
Commonwealth matters should not present a barrier in practice to service planning
that adopts a client-centred focus.
Funding allocation approaches
Funding allocation for legal assistance services could be output based, block based,
or some combination. A brief description of these approaches, which could apply to
recurrent funding as well as funding tied to reform incentives, is provided in
Box 4.1.
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Box 4.1
POTENTIAL FUNDING ALLOCATION APPROACHES
Output based funding (case payment) — involves ascertaining efficient prices of
specified services, incorporating a loading or weighting for certain population groups and
service locations. Funding provided by the Commonwealth/states/territories would be
tied to the cost of delivering a certain number of services.
Block funding — allocation of a block of funding, based on the level of expected activity
and/or the estimated need for services in a particular area.
Combined block and output based funding — output based funding operating in
combination with a block grant. For example, a specified block amount could be
allocated to a service provider to cover fixed costs such as rent, the cost of a solicitor
and an administrator. Once the level of service activity exceeded a certain point
additional funding would be attracted on an output based process.
Source: The Allen Consulting Group
Analysis of current funding arrangements undertaken as part of the Review (see
working paper two, chapter 8) found that there are opportunities, in line with
current direction in public sector management, to move towards output based
targets and/or funding. An important element of the proposed output based funding
approach is inclusion of additional loadings or weightings for certain population
groups and/or locations. This would ensure appropriate incentives for targeting
service delivery to eligible groups and support a client centred approach by
covering the costs of managing clients with complex, multiple needs (including
case management).
In considering specific funding approaches it is also important to consider the
administrative implications, as well as implications in very small markets, or
markets where there may be a shortage of legal service providers. Where service
gaps are identified in priority areas, or if service delivery would not be viable based
on output based funding alone, a component of block funding may be necessary.
For example, block funding is likely to be necessary to provide for specialist, low
volume services such as FVPLS, or services in regional and remote areas, at least
on an interim basis until services become established in their communities.
A pre-requisite to successful implementation of output based funding is robust data
about service costs, including any additional costs involved in servicing particular
client groups. Such data do not presently exist so that introduction of output based
funding is a long-term option, which needs to be accompanied by improvements in
information about service costs.
System planning
Giving effect to system planning requires responsibility at state/territory level for
service planning (building on current jurisdictional forums) to reduce overlap,
ensure effective use of resources and reduce service gaps (see Figure 4.1).
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These planning forums, which would include representatives from legal assistance
services, related support service providers and representatives from the Australian
Government Attorney-General’s Department and state/territory justice departments
would have a core role of developing state/territory service plans to support
achievement of state/territory targets specified in the national strategic plan. This
would involve setting regional targets, as well as assessing regional performance. In
larger states and territories there would also be opportunity to further support
achievement of regional targets through regional planning forums.
System planning at the state/territory and/or regional level also provides an
important opportunity to identify and highlight gaps in the service delivery system,
as well as emerging trends in demand for legal assistance services to inform policy
and priority setting.
Structure of the service delivery network
The proposed system would draw on service providers currently funded under the
four legal assistance programs: ATSILS, community legal centres, FVPLS and
legal aid commissions. The current network involves significant system
infrastructure, and drawing on these existing arrangements would enable the service
delivery network to harness existing sector knowledge, networks, good practices
and efficiencies.
There would, however, be a fundamental shift in how organisations involved in the
service delivery network are managed and funded, with a focus on planning and
managing service providers as a coherent system of service delivery. Some current
distinctions between the four programs may need to be removed, as well as the
divide between Commonwealth/state law matters. Instead, the service delivery
network would be drawn together through a client centred national legal assistance
service program, underpinned by the policies and priorities set out in the strategic
plan and intergovernmental agreement.
Steps illustrating how service providers could be selected, funded and monitored
are summarised in Box 4.2 below.
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Box 4.2
OVERVIEW OF ARRANGEMENTS FOR SERVICE PROVIDER SELECTION, FUNDING
AND REPORTING
1.
2.
3.
4.
5.
6.
State and territory performance targets to meet the policies and service priorities
set out in the strategic plan set by the LAASC.
Regional targets to support the state and territory performance targets set by
state/territory planning forums.
Regional planning forums take a collaborative approach to determining which
service provider organisations are best placed to provide services to meet specified
targets. Provision for intervention of state/territory planning forums in decision
making where collaborative agreement is not reached.
Specification of which services providers are responsible for which services made
through regional and state/territory plans and reviewed/approved by the LAASC.
Funding provided to service provider organisations through an agreement between
the Commonwealth, state or territory and service provider organisation.
Performance against service targets compiled by state/territory planning forum, and
submitted to the LAASC through a government report on state/territory
performance.
Source: The Allen Consulting Group
Delivery of particular types of services would not necessarily be restricted to
service providers operating under current legal assistance service programs. For
example, an organisation currently delivering services under the Community Legal
Services Program could branch into services previously provided by a legal aid
commission or an FVPLS. Importantly, funding service delivery on the basis of an
efficient price would provide incentives for the delivery of efficient services and
encourage the allocation of legal assistance resources to their highest value use.
This structure also has potential to encourage greater involvement from the private
profession. However, it should be noted that decisions about which organisations
provide services would also take into account pre-existing factors, such as
reputation or relationships with the community, which may better place some
organisations to deliver certain services.
In areas where a serious shortage of service providers is present (i.e. thin markets)
legal aid commissions could act (and would need to be funded appropriately) to
ensure access to services. Meeting this requirement might occur in collaboration
with other service providers such as ATSILS, depending on the location.
Decisions about which service providers would deliver what services in particular
areas would take place at the state/regional system planning level. This would
encourage collaboration and cooperation in meeting service targets and encourage
system efficiencies. However, if collaborative agreement could not be reached
provision could also be introduced for decisions to be made by state/territory
planning forums based on a competitive assessment.
State/territory legal assistance service plans would include specification about
which service providers will deliver the services needed to meet state/territory
targets, which would be reviewed and approved by the LAASC. Once approved,
individual funding agreements would be made between the Commonwealth, state or
territory and service provider organisations, providing for output based and/or block
funding to provide the agreed services.
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Coordinated system governance and planning — key action areas
Establish a mechanism for joint government system planning and funding.
Develop and oversee a national legal assistance service strategic plan that includes
performance indicators and targets and is given effect by intergovernmental agreement(s).
Respective jurisdictions to agree state/territory level performance targets.
Develop, monitor and report achievement against state/territory and regional plans through
respective state/territory governments.
Increase flexibility of services delivered through the four existing legal assistance programs.
Allocate funds on an output or activity based approach supplemented by block funding in
very thin markets.
Provide Commonwealth and state/territory funding on an agreed proportionate basis.
4.3
Outcome measures and performance indicators
A consistent set of agreed national indicators for legal assistance services would
better reflect the contribution of all parts of the Commonwealth and state/territory
funded legal assistance services. National indicators would also reinforce service
priorities and guide allocation of resources. These would replace the performance
monitoring arrangements currently in place for each program.
The required data and frequency of data collection, covering who receives services
and how much it costs to provide these services, should be informed by the findings
of the Review and the refined set of indicators and data points (see working paper
one, addendum). The refined evaluation framework envisages the need for regular
collection of some information, drawing from existing service provider
administrative data, augmented by periodic collection of new data from key
stakeholders. Data should support accountability to governments and the public,
tracking of performance, understanding the costs of service delivery and inform
good practice. This will require improved definition around specified groups of
disadvantaged Australians, determination of average unit costs for service
categories and systematic input from employees, clients, non-legal service
providers and the wider justice system.
Performance benchmarks would be aligned to national policy objectives and
indicators. They would specify the direction and size of change to be achieved (for
example, see the Review's legal aid commission report, Table 12.2). Arrangements
with each state and territory would agree the effort required by that jurisdiction
having regard for their performance at an agreed point in time (baseline).
Robust data will be key to tracking the achievements of legal assistance services
and highlighting continuing and emerging challenges. Agreement to development
of national indicators should include a plan for implementation that builds, for
example, on the work of the National Legal Assistance Data Working Group, and
appropriate resources.
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Outcome measures and performance indicators — key action areas
Establish a set of national, agreed performance indicators applicable across legal assistance
services, drawing on the evaluation framework developed and refined as part of the Review.
These indicators would be populated by periodic or ongoing qualitative and quantitative
data collection and address areas of focus including whether the sector is providing the right
services to meet the needs of the most disadvantaged Australians, and providing services
effectively, efficiently, in a coordinated and sustainable manner.
4.4
Increasing participation of the private profession
Higher levels of participation from the private legal profession would assist in
meeting the unmet legal needs of disadvantaged Australians. Pro bono efforts of
legal practitioners, as well as reduced fee legal work, are providing a valuable input,
however there are limits to the discretionary capacity of the profession and the level
of pro bono effort that can reasonably be relied upon. Increased participation of the
private legal profession therefore needs to extend to ways to encourage service
provision on commercially acceptable terms.
The scarcity of available services in some regional and remote areas, as well as the
expertise required to deliver the kinds of legal services needed to meet the needs of
disadvantaged Australians, means that increased participation from the private
sector will require measures such as incentives, removal of regulatory barriers and
the availability of funding that enables private sector service provision. If there is
sufficient funding made available to the private profession in regional and remote
areas they are more likely to provide services where they currently do not. The
service delivery structure outlined in section 4.2 could help facilitate this, by
providing funding at an efficient price and flexibility for different providers to enter
the legal assistance services market.
Increasing participation of the private sector — key action areas
Encouraging increased participation of the private sector through mechanisms such as
service delivery incentives and the removal of regulatory barriers.
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Chapter 5
Conclusion
The existing legal assistance service infrastructure is increasingly focused on earlier
resolution of legal problems and is providing a significant level of service delivery
to disadvantaged Australians. This is especially notable in the context of high levels
of demand, limited resources and clients who often have complex, entrenched and
overlapping legal and non-legal needs.
There is however unmet demand for legal assistance services and the findings of
this Review suggest that legal assistance service providers will continue to be
challenged to achieve government priorities and meet demand within existing
resources. Particular challenges exist for providing accessible and effective services
for some of the most disadvantaged Australians, including those with complex
needs and those located in regional and remote areas. The difficulties involved in
meeting these service demands are compounded by a need to ensure a consistently
high level of service quality, as well as coordinate service priorities, planning and
funding between the Commonwealth and states/territories.
The linkages between legal problems and other areas of government priority,
including reducing Aboriginal and Torres Strait Islander disadvantage, reducing
homelessness, reducing violence against women and children and social inclusion,
mean that positioning legal assistance services to meet these challenges is a key
concern for government.
There are a number of short to medium term options largely within existing
institutional and governance arrangements, which could be implemented to help
address some of these challenges. Improved specification about who should receive
what kind of legal services would help ensure achievement of government
priorities. Other options include improvements to front line interfaces and triage
arrangements, mechanisms to encourage adoption and sharing of good practices
across legal assistance services and more intensive management and coordination of
services for clients with complex needs and multiple/frequent issues.
Deeper, system wide reform is required to provide an optimal service configuration
to sustainably address the challenges identified by the Review. Shifting service
delivery and funding away from the government jurisdiction of the legal problem to
centre on the totality of the needs of each client would better support a focus on
achieving effective client outcomes. Service efficiency and cost-effectiveness could
be improved by coordinating and streamlining how legal assistance services are
governed, planned, funded and delivered, underpinned by a national strategic plan
providing for joint responsibility and accountability of governments.
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Glossary
Civil law
Problems requiring resolution under Commonwealth and state civil law, including:
•
Employment
•
Social security
•
Veterans entitlements
•
Proceeds of crime
•
Consumer/credit and debt
•
Housing
•
Rights (discrimination, mental health law and guardianship for adults)
•
Immigration law
•
Environment
•
Wills and estates
•
Neighbourhood disputes
•
Health
•
Other civil law
Community
education
Community education informs and builds individual and community resilience by enhancing
awareness and understanding about the law and how to prevent and deal with problems and
awareness of the help available from legal and support services. These services are provided to the
general community and groups within the community and are not targeted to individual needs.
Cost-effectiveness
Measures how well expenditure on inputs (such as employees, cars and computers) are converted
into outcomes for individual clients or the community. Cost-effectiveness may be expressed as a ratio
of inputs to outcomes.
Criminal law
Problems where the client is charged with or at risk of being charged with an offence under
Commonwealth or state criminal law. These include:
Commonwealth
legal aid service
priorities
•
Homicide and related offences
•
Acts intended to cause injury
•
Sexual assault and related offences
•
Dangerous or negligent acts endangering persons
•
Abduction, harassment and other offences against the person
•
Robbery, extortion and related offences
•
Unlawful entry with intent/burglary, break and enter
•
Theft and related offences
•
Fraud, deception and related offences
•
Illicit drug offences
•
Prohibited and regulated weapons and explosives offences
•
Property damage and environmental pollution
•
Public order offences
•
Traffic and vehicle regulatory offences
•
Offences against government procedures, government security and government operations
•
Miscellaneous offences
General principles and priorities outlined in Schedule A of the National Partnership Agreement on
Legal Assistance Services to provide guidance about the types of legal matters that should attract
Commonwealth funded legal services.
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Culturally
Culturally competent practices are defined for the purposes of this Review to include:
competent practices
•
Employment of people from Aboriginal or Torres Strait Islander backgrounds
•
Employment of people from culturally and linguistically diverse backgrounds
•
Comprehensive cultural competence training for staff on commencing employment
•
Ongoing opportunities for staff to develop their skills in delivering culturally competent services
•
Staff have ready access to information on providing services in a culturally competent manner
•
Strategies to welcome, communicate, engage and support Aboriginal and Torres Strait Islander
peoples
•
A current directory of Aboriginal and Torres Strait Islander organisations and services, used for
referrals and to provide information to clients
•
There is a current directory of organisations and services relevant for people from culturally and
linguistically diverse backgrounds, and this is used for referrals and to provide information to
clients
•
Translators and interpreters are routinely offered to people from Aboriginal or Torres Strait
Islander backgrounds who wish to access services
•
Translators and interpreters are routinely offered to people from culturally and linguistically
diverse backgrounds who wish to access services
•
All forms are written using plain English
•
Assistance is always offered when people from Aboriginal or Torres Strait Islander backgrounds
are asked to fill out a form
•
Assistance is always offered when people from culturally and linguistically diverse backgrounds
are asked to fill out a form
•
Alternative methods of providing services to Aboriginal and Torres Strait Islander peoples,
including out-posting workers to appropriate locations and outreach services
•
Alternative methods of providing services to people from culturally and linguistically diverse
backgrounds, including out-posting workers to appropriate locations and outreach services
•
Established policies and processes to establish and maintain linkages with Aboriginal and Torres
Strait Islander organisations and services
•
Established policies and processes to establish and maintain linkages with organisations and
services that specifically target assisting people from culturally and linguistically diverse
backgrounds
Disadvantaged
groups
Disadvantaged groups are defined for the purposes of this Review to include:
•
Aboriginal and Torres Strait Islander peoples
•
Financially disadvantaged people
•
Homeless people or people at risk of homelessness
•
People experiencing or at risk of family violence (including children)
•
People from culturally and linguistically diverse backgrounds
•
People living in remote areas
•
People with a disability
•
People with a mental illness
•
People in custody
Discrete task
assistance
Discrete task assistance is the provision of advice and/or task assistance to a client in relation to a
specific problem. These services may be provided at any location, including at a court or tribunal by a
duty lawyer.
An advice service is the provision of fact specific advice to a client in response to their request for
assistance to resolve specific problems. The advice service may be legal or non legal.
Task assistance is where the service provider completes a task or series of tasks, other than advice,
to assist the client to resolve a problem or a particular stage of a problem. Task assistance may be
legal or non-legal.
Dispute resolution
Dispute resolution services involve the provision of a dispute resolution process for parties in dispute.
It may involve a dispute resolution conference or arbitration.
Duty lawyer
Advice and/or representation services provided at a court or tribunal where a court event or tribunal
hearing is imminent, other than services, which are subject to a grant of legal aid.
services
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Early intervention
services
Legal services provided by legal aid commissions to assist people to resolve their legal problem
before it escalates, such as legal advice, minor assistance and advocacy other than advocacy
provided under a grant of legal assistance.
Efficiency
Reflects how resources (inputs) are used to produce outputs and outcomes, often expressed as a
ratio of outputs to inputs (technical efficiency), or inputs to outcomes (cost-effectiveness).
Family law
A legal area that deals with disputes in domestic relationships (married or de facto), as well as the
welfare of children and issues of property when a relationship breaks down, including:
•
Parenting arrangements
•
Child support
•
Family law property
•
Divorce and annulment
•
Other family law
•
Domestic violence
•
Child protection
Information
Information is the provision of generic information to individuals in response to their request or
inquiry. These services may be provided at any location, including at a court or tribunal by a duty
lawyer.
Legal advice
Legal advice includes services that provide fact specific advice where the provider gives specific legal
advice in relation to a person’s individual circumstances and analyses the options available to that
person to resolve his or her legal matter.
Legal assistance
services
Legal assistance services include services provided by all of the sector-wide legal services providers.
The National Partnership Agreement on Legal Assistance Services sets out shared outcomes and
objectives for four Commonwealth funded legal assistance programs delivered through Aboriginal
and Torres Strait Islander legal services, community legal centres, family violence prevention legal
services and legal aid commissions.
Legal
representation
Legal representation is where the service provider provides legal representation for a client in an
alternative dispute resolution process or in a matter before a court, tribunal or inquiry.
Matter
The problem or group of problems about which a person seeks assistance from a legal assistance
service provider.
Non-legal service
provider
A service provider that provides services of a non-legal nature, but closely related to those provided
by legal assistance service providers. Examples include financial counsellors and Family Relationship
Centres.
Policy and law
reform
Policy and law reform services are activities to influence and effect changes to the law and legal
process so as to improve equitable access to and the effectiveness of the justice system.
Preventative legal
services
Legal services provided by legal aid commissions that inform and build individual and community
resilience through community legal education, legal information and referral. These include
information and referral, community legal education, publications and website page views.
Process maturity
The concept of process maturity looks at how entrenched good practices are within an organisation,
based on the premise that the more entrenched the process the more likely it is to support good
outcomes. For the purpose of this Review, process maturity is broken down into five levels:
Quality
•
Level 1 – Person–dependent practices that are not documented or formalised.
•
Level 2 – Documented and partially deployed process, that have been reviewed documented and
approved, but may be inconsistently or partially deployed.
•
Level 3 – Fully deployed processes with consistency between the documented process and
deployed process.
•
Level 4 – Measured processes that have set measures and goals.
•
Level 5 – Continuously improving processes that are measured against goals and targets that are
analysed for achievements and improved regularly.
Reflects the extent to which a service is suited to its purpose and conforms to specifications.
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Referral
A referral service occurs when:
•
a service provider assesses the needs of a client seeking assistance; and
•
determines that the client would be assisted by a service available from another service provider;
and
• refers that client to a service provider that is likely to be able to assist them.
There are two types of referral service: simple referral and facilitated referral. A client may be
provided with one or more of each type of referral. In each case the service is counted separately and
the details of each provider to whom the client is referred are reported. A referral service may be
made in conjunction with any other service category or service type.
Social exclusion
The restriction of access to opportunities and a limitation of the capabilities required to capitalise on
these opportunities.
Sources: Based on definitions under the National Partnership Agreement on Legal Assistance Services (NPA) and NPA Review Service
Provider Survey and Data Request
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References
Bowles, R, and Perry, A 2009, International Comparison of publicly funded legal
services and justice systems, MoJ Research Series 14/09, October 2009; Northern
Ireland Assembly (2010) Legal Aid: A Country Comparison. Research and Library
Service Briefing Paper. Available from
http://www.niassembly.gov.uk/researchandlibrary/2010/15610.pdf
Coumarelos, C, Macourt, D, People, J, McDonald, H, Wei, Z, Iriana, R and
Ramsay, S 2012, Legal Australia-Wide Survey: Legal Need in Australia, Access to
Justice and Legal Needs, Law and Justice Foundation of New South Wales.
Council of Australian Governments (COAG) 2010, National Partnership
Agreement on Legal Assistance Services, COAG,. Available from
<http://www.federalfinancialrelations.gov.au/content/national_partnership_agreeme
nts/Other/Legal_Assistance_Services_NP.pdf>.
Curran, L 2012, A Literature Review: examining the literature on how to measure
the successful outcomes: quality, effectiveness and efficiency of Legal Assistance
Services, Curran Consulting, prepared for the Commonwealth Attorney-General's
Department, February.
Department of Broadband, Communications and the Digital Economy (DBCDE)
2013, Advancing Australia as a Digital Economy. DBCDE, Canberra.
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