Brandis's funding cuts and uncertainty in the legal aid sector are leaving the most disadvantaged and vulnerable in the community with nowhere to turn for protection. By Mike Seccombe.

Brandis cripples legal aid funding

Law grinds the poor, and rich men rule the law.

The poet responsible for those words might not be known to Australia’s attorney-general, George Brandis, who based on behaviour in a recent senate estimates committee appears to prefer Australian bush verse.

But if the 18th-century line of Irishman Oliver Goldsmith was not familiar, the sentiments certainly should have been.

Eight months ago, the uber-rationalists of the Productivity Commission delivered a similar message, albeit in more prosaic terms. The commission’s access to justice report of last September exposed what it called a growing “justice gap” in Australia. Legal assistance funding by government, it said, had not kept pace with increasing costs and demand in the legal system, resulting in growing exclusion of the disadvantaged, or as the report described them, “those who would take private legal action to defend their rights, but do not have the resources to do so”.

The report continued: “The nature of matters that fall in the gap is particularly concerning. Assistance with family law matters, including domestic violence and care and protection of children, is not comprehensive in its coverage. The commission finds the gap in independent lawyer services for children especially worrying. Other gaps in civil law assistance, such as employment and tenancy law, can also have serious consequences.”

The commission recommended financing to the four government-funded legal assistance providers – state legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and family violence prevention legal services – be increased by $200 million a year.

It found “overwhelming qualitative evidence that narrowing the gap would be socially and economically justified. However, the costs to society, and the benefits of closing the gap, are difficult to measure quantitatively.”

This week, though, we have some quantitative evidence of the rate at which the gap is widening under the watch of Brandis. The national association of community legal centres, whose 200 constituent organisations cater to the legal needs of the disadvantaged, completed a census of their work last financial year.

They helped some 208,000 clients. But they turned away about another 156,000. In some cases this was because the centre had a perceived conflict of interest or because the person’s legal problem was outside its area of expertise or client group. But in about two-thirds of cases it was due to a lack of resources.

It was only the second time the sector had undertaken such a census. The previous one, done a year earlier, found community legal centres (CLCs) turned away about one-third as many people, fewer than 48,000.

While the numbers are not strictly comparable because the two surveys included slightly different numbers of CLCs (90 in the 2013 survey; 84 in 2014), it is nonetheless clear the capacity of the centres to meet the demand for their services was in rapid decline.

The reason was not hard to determine. Instead of putting more money into legal assistance as the Productivity Commission advocates, the Abbott government has been pulling money out. Then putting it back again. And pulling it out again. And moving it around between departments and agencies. And working to shift the responsibility and cost to state and territory governments much as it has done with health and education.

“It’s been chaos,” says Michael Smith, convenor of the National Association of Community Legal Centres. “Really messy.”

“It has caused extraordinary uncertainty and difficulty across the sector. No centre could be sure of its future. It’s hard for them to find a per-year [funding] figure.”

And the uncertainty that has bedevilled legal aid organisations for the past 18 months is set to continue. The federal government is now in the final stages of negotiating a new funding agreement with the states that will make them responsible for the allocation of funds. For their part, the states are not happy about the way they are being strongarmed.

1 . Cuts and chaos

The story begins in 2013, when the previous Labor attorney-general, Mark Dreyfus, increased funding for legal aid, community legal centres including environmental defenders offices, and Aboriginal and Torres Strait Islander legal services by about $52 million, or 15 per cent.

Then the Abbott government won office, and within a few months announced it was pulling $42 million back out.

Let’s focus first on CLCs. They got an additional $33.5 million of the so-called Dreyfus money, directed to 61 CLCs, particularly environmental defenders offices, over four years. But under Brandis all of that money was to go, plus more. Environmental defenders offices were totally defunded and other CLCs left about $12 million worse off. There was no detail about how much money individual centres would get.

“We finally got told who was being cut on budget day in May last year,” says Smith.

The news was even worse than expected, because the budget included an extra $6 million in cuts.

More chaos ensued as CLCs altered staffing plans, looked for alternative sources of funds, et cetera. They also began lobbying fiercely against the cuts, as did much of the broader legal community.

The reductions sat uncomfortably alongside the government’s purported intent to do more about Indigenous disadvantage and domestic violence, and added to the perception that its spending cuts disproportionately targeted the least well-off people in the community. The top three specialist concerns of CLCs are family law, domestic violence, and services for Aboriginal and Torres Strait Islanders. Thirteen per cent of their clients are Indigenous. More than one-quarter have a disability.

The situation was equally uncertain and in some ways even more complicated among legal services that deal specifically with Indigenous legal issues.

Antoinette Braybrook is the national convenor of the National Family Violence Prevention Legal Services forum, representing 14 centres across the country that offer legal assistance in cases of family violence and sexual assault in the Indigenous community.

“Nationally more than 90 per cent of our clients are Aboriginal women and children. They remain the most legally disadvantaged group in Australia,” she says.

“Our program had been running 16 years, always with a direct allocation of funds,” she says. “The last direct allocation was $23.2 million under the previous government.”

Prior to the election of the Abbott government, they came under the attorney-general’s portfolio.

“But when Abbott announced himself as the minister for women and Indigenous issues and established the Indigenous Advancement Strategy, he pulled our program out of A-G’s, and put it under him,” says Braybrook.

The previous funding certainty disappeared.

“Part of that process was they were looking to rationalise 150 programs. They talked of saving $534 million through that. At that time we were very concerned because they essentially put us out to open tender. We didn’t know how much money was to be allocated or whether our organisations were valued under that.”

All 14 organisations were required to apply separately for funding. Only in March this year were they advised that they had secured it.

“But only five of the 14 orgs received three-year funding, and the other nine got 12 months. A couple of months later that was extended to two years,” says Braybrook.

“Not one of our organisations, despite the increase in family violence, has received an increase in funding, and we’ve also been told that there will be no CPI indexation. And at the end of that time, there is no guarantee of continued funding.”

2 . EDOs gutted

It was the same story across the legal assistance sector, with one exception. Environmental defenders’ offices around the country were given funding certainty – they were cut off entirely, to the great satisfaction of the government’s big donors in the mining industry.

Finally, after 15 months of this chaos and criticism, the government did an about-face in March this year.

“The federal government is providing certainty for the legal assistance sector by guaranteeing current funding levels for the next two years,” began the joint statement on March 26 from Brandis and Michaelia Cash, the minister assisting the prime minister for women.

The press release attributed the change to growing community concern about the “scourge” of domestic violence.

“Today’s restoration of $25.5 million over two years to 30 June 2017, of funding for legal aid commissions, community legal centres and Indigenous legal service providers, builds on our significant commitment to address domestic violence, both in terms of front-line services as well as policies that will lead to long-term cultural change,” it said.

Environmental defenders remained defunded, but the other organisations at least had most of their funding back.

In reality, though, it amounted only to a stay of execution. The Brandis–Cash statement promised to honour previous funding arrangements only until June 30, 2017.

Says Michael Smith: “In dollar terms we are pretty much as we were, no gain and no loss.

“But in two years’ time there is this funding cliff where funding goes from $42 million down to about $30 million, a 30 per cent cut across the country.

“There’s also a new formula for funding.”

3 . States protest

This brings us back to the new funding regime the federal government now is foisting on the mostly unwilling states and territories, under which it will give them $1.3 billion over five years, along with responsibility for disbursing legal assistance funds to legal aid commissions and CLCs. The federal government will continue to directly fund Indigenous legal assistance providers.

The model is complicated, but the essence of it is that the Commonwealth proposal will leave most states worse off than they were under the previous regime.

Last month six of the eight state and territory attorneys-general wrote to Brandis expressing dismay about his proposed National Partnership Agreement on Legal Assistance Services.

“Of particular concern,” they wrote, “are the cuts to Commonwealth funding for community legal centres.

“As you are no doubt aware, legal service commissions and community legal centres provide a vital service to the most vulnerable members of the Australian community in critical areas such as domestic violence. From community education and early intervention to dispute resolution and representation, legal service commissions and community legal centres contribute to the welfare of individuals and their families as well as to the efficient operation of our court systems.

“Cuts of the magnitude forecast in the budget will severely impact upon access to these services. This is at odds with both the Productivity Commission’s recommendations in its report on Access to Justice Arrangements and the Commonwealth’s own commitments to tackle domestic violence and Indigenous disadvantage,” the letter said.

The attorneys-general went on to cite more specific concerns about provisions in the agreement that would limit access to legal assistance, and which threatened to cut funding to states that did not meet those requirements.

“As you would well know, any withdrawal of funding, even a temporary one, would threaten the viability of the legal assistance sector,” their letter said.

“That a jurisdiction’s funding could be terminated because of a failure to meet one of these requirements, irrespective of the circumstances, creates an unacceptable degree of uncertainty for state and territory governments and our communities and legal service providers.”

4 . Bipartisan dismay

Shadow attorney-general Mark Dreyfus sees the move as part of a broader push by the Abbott government to shift responsibilities and costs to the states.

“As the Commonwealth is trying to do in a range of other policy areas, it’s trying to withdraw from the field and leave it to the states, which inevitably will mean less money, because the states don’t have the same revenue sources as the Commonwealth,” he says.

Of the deferral of the cuts to 2017, past the next election, Dreyfus says, “It’s part of the consistent hoax in this budget, which inflates estimates of growth, inflates estimates of revenue, and pushes out all problems to a future date.”

He’s from the opposition, so of course he would say that. But people from Brandis’s own side of politics are voicing similar complaints, as the attorneys-general letter shows.

The Liberal attorney-general for New South Wales, Gabrielle Upton, for example, has been a consistent critic, and she repeated her objections for The Saturday Paper this week.

The NSW government, she says, remains “deeply concerned about the Commonwealth’s funding cuts to Legal Aid NSW and Aboriginal Legal Services next financial year.

“The Commonwealth is asking NSW to do more with less.”

Though she welcomes the fact that CLC funding now will be assured for the next two years, she laments the fact that it would “unfortunately drop significantly after that”.

“[T]he NSW government will fight to ensure the most vulnerable have access to fast, fair and efficient justice,” she says.

But it looks to be a losing fight. The new agreement will have to be signed off by the end of this month if the various states and territories want their share of the Commonwealth’s $1.3 billion.

Which is tough for them and tougher for the legal assistance agencies that will lose out. But toughest on the tens of thousands of disadvantaged Australians who will be denied legal assistance.

This article was first published in the print edition of The Saturday Paper on June 13, 2015 as "Roughed justice".

For almost a decade, The Saturday Paper has published Australia’s leading writers and thinkers. We have pursued stories that are ignored elsewhere, covering them with sensitivity and depth. We have done this on refugee policy, on government integrity, on robo-debt, on aged care, on climate change, on the pandemic.

All our journalism is fiercely independent. It relies on the support of readers. By subscribing to The Saturday Paper, you are ensuring that we can continue to produce essential, issue-defining coverage, to dig out stories that take time, to doggedly hold to account politicians and the political class.

There are very few titles that have the freedom and the space to produce journalism like this. In a country with a concentration of media ownership unlike anything else in the world, it is vitally important. Your subscription helps make it possible.

Select your digital subscription

Month selector

Use your Google account to create your subscription