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This is a RCIADIC recommendation
105
Fund Aboriginal Legal Services for research
That in providing funding to Aboriginal Legal Services governments should recognise that Aboriginal Legal Services have a wider role to perform than their immediate task of ensuring the representation and provision of legal advice to Aboriginal persons. The role of the Aboriginal Legal Services includes investigation and research into areas of law reform in both criminal and civil fields which relate to the involvement of Aboriginal people in the system of justice in Australia. In fulfilling this role Aboriginal Legal Services require access to, and the opportunity to conduct research.
ATSILS and NATSILS create systemic change through community-informed strategic litigation, law and policy reform and advocacy. Whilst the ATSILS ILAP funding agreements do not formally restrict advocacy for ATSILS, advocacy is not formally supported through funding quantum, nor funded activities. This places limitations on the ability to meet ILAP objectives which require a systems-based approach and pushing forward a reform agenda not only within the legal assistance sector but also the community services sector.
We are the experts based on over 40 years’ experience of representing Aboriginal and Torres Strait Islander people. Further, we are representative of, and accountable to, our communities through our governance arrangements. It is important for our voice to be heard by decision makers to address the disadvantage of Aboriginal and Torres Strait Islander people in the justice system and to reimagine what the justice system looks like. Based on this expertise, ATSILS and NATSILS are commonly asked and expected to input into government and sector reform inquiries and projects, yet we are not provided additional resourcing to do so. It is critical that this change.
Aboriginal Justice Caucus Assessment
The 2005 and 2018 Reviews did not assess Victoria’s implementation of this recommendation as it was deemed to be a Commonwealth responsibility. Aboriginal Legal Services in Victoria now receive both Commonwealth and State Government funding, with at least one service receiving the majority of their funding from the State Government. For this reason, the Aboriginal Justice Caucus determined this recommendation worthy of assessment as part of this project.
Recommendation 105 was intended to encourage governments to fund Aboriginal Legal Services for broader functions beyond the provision of legal services, including to conduct their own research into areas of law reform that may benefit Aboriginal people, and presumably the policy, advocacy and communication functions required to ensure government decision-makers are aware of the research and its implications.
Aboriginal Legal Services continue to advocate for funding to undertake research, policy and law reform activities, highlighting the importance of this work in improving laws that disproportionately impact Aboriginal people and addressing the underlying systemic issues that contribute to the overrepresentation of Aboriginal people in the legal system.
Action taken to date was considered of little relevance to the intent of the recommendation in that neither the Commonwealth or Victorian Governments specifically and routinely fund Aboriginal Legal Services for research, policy or advocacy work.
The was no evidence that Recommendation 105 had been implemented in Victoria. Despite numerous inquiries since the RCIADIC recommending that Aboriginal Legal Services be funded for a broader range of functions, it remains the case that these services are not routinely funded for research and policy work as envisaged by the RCIADIC.
Aboriginal Legal Services in Victoria are funded by the Commonwealth under the National Legal Assistance Partnership which does not provide funding earmarked for research, policy or advocacy work. The Victorian Government also provides funding for specific programs and services provided by Djirra and VALS but not explicitly for research and policy functions.
The Legal Assistance Strategy Victoria 2022-2025 notes the active involvement of VALS in community education, research and advocacy around law reform and policy development. However, funding priorities do not include supporting policy and research.
Recommendation 105 remains entirely relevant as Aboriginal Legal Services need to be funded to conduct policy, research and advocacy work to inform law reform on matters impacting Aboriginal communities. Recent campaigns for bail reform and raising the age of criminal responsibility exemplify the highly impactful and valuable work that legal services are well placed to champion. Resourcing research, policy and advocacy functions is essential to support this work.
The AJC felt that further implementation of Recommendation 105 could bolster Aboriginal legal services’ research, policy and advocacy work and potentially result in reforms that reduce incarceration, increase safety in custody and enable greater Aboriginal self-determination.
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Designated funding for Aboriginal Legal Services
That the Commonwealth and Victorian Governments fund Aboriginal Legal Services specifically and routinely to conduct policy, research and advocacy work, ensuring that funding is quarantined for this purpose.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the most important safeguard to the rights of Aboriginal people, especially in ensuring a reduction in the numbers of Aboriginal people convicted and sentenced to imprisonment is the provision of competent legal representation. The RCIADIC highlighted that Aboriginal Legal Services were crucial and fulfilled multifaceted roles. In addition to providing legal advice and representation for Aboriginal people before the courts, Aboriginal Legal Services play an important role in community legal education, law reform and advocacy for the rights of Aboriginal people. At the time, Aboriginal Legal Services had limited capacity to provide effective advocacy or community legal education due to researching constraints and a dearth of relevant research and data.
Actions Taken Since Last Review
Productivity Commission 2014, Access to Justice Arrangements: Inquiry Report No. 72
The Productivity Commission made several recommendations to improve access to the legal system and equity of representation including, but not limited to, funding of legal assistance services. These included that Commonwealth, state and territory governments should provide funding for strategic advocacy and law reform activities that seek to identify and remedy systemic issues and so reduce demand for frontline services; that funding should be increased for legal service providers and that funding allocation models used to determine Aboriginal and Torres Strait Islander Legal Services (ATSILS) funding should be updated to reflect more contemporary measures of legal need.
NATSILS Submission to the Review of the Indigenous Legal Assistance Programme
The submission recognised that ATSILS and NATSILS seek to achieve systemic change through community-informed strategic litigation, law and policy reform, and advocacy. However, this is hampered by insufficient funding overall and the absence of dedicated funding to support research, advocacy and law reform. NATSILS highlighted the need for dedicated funding and support for Aboriginal Legal Services to enable research, policy and advocacy functions.
National Strategic Framework for Legal Assistance
The National Strategic Framework for Legal Assistance (‘National Strategic Framework’) provides the policy framework for all government legal assistance funding. It includes an overarching objective and aspirational principles to guide legal assistance policy funding, service delivery and sector planning. The National Strategic Framework covers all Commonwealth, State and Territory funded legal assistance. This includes generalist and specialist legal assistance services delivered by legal aid commissions and community legal centres, ATSILS and Family Violence Prevention Services.
The National Strategic Framework was developed in consultation with the legal assistance sector and agreed to by the Council of Attorneys-General in 2019. It commenced on 1 July 2020 and expires on 30 June 2025.
A section on self-determination in The National Strategic Framework notes:
• The principles of the National Strategic Framework should be applied consistently in a manner which supports self-determination and the National Partnership on Closing the Gap. For the purposes of delivery of legal assistance services, self-determination refers to:
• Aboriginal Community Controlled Organisations being the preferred providers of culturally appropriate legal assistance services, while acknowledging that Aboriginal and Torres Strait Islander people have a meaningful choice in which legal assistance services they access,
• Aboriginal Community Controlled Organisations determining service priorities and locations based on community need and in collaboration and partnership with governments and the broader legal assistance sector, and
• Aboriginal Community Controlled Organisations being actively and meaningfully involved in the development and implementation of legal assistance policies and programs that affect Aboriginal and Torres Strait Islander people.
There is no specific mention in the National Strategic Framework of supporting legal services to conduct their own external research. However, the ‘continuous learning and improvement’ principle describes the importance of monitoring and evaluation within legal services to ‘improve the collection, analysis and communication of data to enhance service outcomes.’
Once of the related outcomes is that ‘legal assistance peak or representative bodies support legal assistance service providers by undertaking a range of activities, including capability and capacity building, strategic policy and law reform.’
National Legal Assistance Partnership (NLAP)
The NLAP is a multilateral funding agreement between the Commonwealth and State and Territory Governments. Signatories to the agreement have a mutual interest and responsibility to provide legal assistance services which help vulnerable people facing disadvantage, who are unable to afford private legal services, to engage effectively with the justice system in order to address their legal problems.’
The NLAP supports the National Strategic Framework for Legal Assistance by contributing to integrated, efficient, effective and appropriate legal assistance services which are focused on improving access to justice and legal outcomes.
An independent review of the NLAP was underway at the time this recommendation was being examined. The review methodology was intended to align with the Closing the Gap Priority Reform Areas which highlight the importance of empowering and partnering with Aboriginal people and the reviewer was to strive towards best practice in engaging, consulting and collaborating with Aboriginal Legal Services, peak bodies and communities. The Draft Report and Final Report were to be released to all Attorneys-General in December 2023, with the Final Report to be publicly released by the Commonwealth within three months of the completion of the review.
National Agreement on Closing the Gap
Developed in partnership between Australian governments and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (‘Coalition of Peaks’), the National Agreement on Closing the Gap (‘National Agreement’) aims to enable Aboriginal people and governments to work together to overcome inequality and improve life outcomes.
Underpinning the National Agreement are four priority reforms: formal partnerships and shared decision-making; building the community-controlled sector; transforming government organisations and shared access to data and information at a regional level.
The priority reforms relating to building the community-controlled sector and access to data and information are most relevant to Recommendation 105 and support Aboriginal Community Controlled Organisations having consistent and reliable funding to respond to community needs, as well as supporting Aboriginal communities and organisations to ‘build capability and expertise in collecting, using and interpreting data in a meaningful way.’
Justice Policy Partnerships
Under the National Agreement, all Australian Governments and the Coalition of Peaks agreed to establish Justice Policy Partnerships (JPP) at the national and state and territory levels to progress the commitment to reduce the incarceration rates of Aboriginal adults and young people.
In establishing the Justice Policy Partnership, the Commonwealth Government provided funding for a policy officer to be employed in an Aboriginal and Torres Strait Islander Legal Service in each State and Territory. These roles work closely with justice sector stakeholders to provide high level, strategic policy advice and secretariat support to further the objectives of the JPP. This is one of the only examples we could find where Aboriginal Legal Services were funded specifically for roles focused on accessing and analysing data, and conducting research and/or policy work, however these roles are narrowly focused on performing these functions in support of the JPP not broader policy and reform work.
Funding for Aboriginal Legal Services in Victoria
As part of the Indigenous Legal Needs Project, a series of focus groups were held across Victoria with Aboriginal community members to understand the civil and family law needs of Aboriginal people in Victoria.
The findings published noted the need for more funding to respond to legal needs including for policy and reform work:
“Increased resourcing across the legal assistance sector would allow for more strategic approaches to legal need, including but in addition to the expansion of individual casework. Such approaches might include improved partnerships, better referral processes and increased networking among legal service providers and between legal services and other related organisations; increased Community Legal Education in communities; and more policy and law reform work – all of which would ensure far better outcomes in meeting the needs of Indigenous people.”
The Legal Assistance Strategy Victoria 2022-2025 states, as part of the development of the Aboriginal Legal Assistance Strategy, it is proposed that an Aboriginal specific legal needs analysis be considered, drawing on current and ongoing legal analysis work from VALS, Djirra, Victorian Legal Aid and others and respecting Aboriginal data sovereignty.
The Legal Assistance Strategy also notes the active involvement of VALS in community education, research and advocacy around law reform and policy development. However, funding priorities do not include supporting policy and research.
In Victoria, Aboriginal Legal Services are now primarily funded by the State Government through a variety of funding streams for specific programs and services (like regional services, legal assistance for victims and people with mental health related matters, legal support to access Yoorrook, provision of legal representation in Koori Courts etc) with the remainder of funding from the Commonwealth Government through the NLAP.
Impact
Outcomes
Attorney-General
During a Public Accounts and Estimates Committee hearing on 9 June 2023, the Attorney-General recognised the effectiveness of VALS’ policy work, advocacy and ongoing efforts to bring the Victorian Government’s attention to the needs of Aboriginal people.
Certainly they are in my office regularly when there is something that they would like my attention on. But they have been really invaluable in sitting down and going through our policy development and making sure that we have got a lens on how anything we do might impact or have an effect on Aboriginal Victorians.
Community Views
ATSILS and NATSILS create systemic change through community-informed strategic litigation, law and policy reform and advocacy. Whilst the ATSILS ILAP funding agreements do not formally restrict advocacy for ATSILS, advocacy is not formally supported through funding quantum, nor funded activities. This places limitations on the ability to meet ILAP objectives which require a systems-based approach and pushing forward a reform agenda not only within the legal assistance sector but also the community services sector.
We are the experts based on over 40 years’ experience of representing Aboriginal and Torres Strait Islander people. Further, we are representative of, and accountable to, our communities through our governance arrangements. It is important for our voice to be heard by decision makers to address the disadvantage of Aboriginal and Torres Strait Islander people in the justice system and to reimagine what the justice system looks like. Based on this expertise, ATSILS and NATSILS are commonly asked and expected to input into government and sector reform inquiries and projects, yet we are not provided additional resourcing to do so. It is critical that this change.
In response to these issues, NATSILS recommended that:
• Aboriginal and Torres Strait Islander legal services must be formally supported to advocate for and contribute to law and legal frameworks, policy settings and a society that enables access to justice and protects the human rights of Aboriginal people in Australia
• Deliver informed policy advice and strategic input to governments and the sector about ending the overrepresentation of Aboriginal people within the justice system and about making that system fair and compliant with human rights
• Collaborate with community and sector experts to develop and coordinate strategic and timely research to develop and define a better justice system.
“Our IAS grant did not extend to cover the vast majority of, or staffing for, our highly successful early intervention prevention and community legal education programs.
We received no funding for our policy and law reform activities despite the significant benefits this function provides in delivering advice to government, participating in research and consultation and identifying opportunities to strengthen and improve law and justice outcomes for Aboriginal victims/survivors of family violence and Aboriginal women within the family law and child protection system.
The IAS funding decision runs counter to a compelling and growing body of evidence pointing to the need to increase funding for legal services such as FVPLS Victoria – for example:
• the final report of the Productivity Commission’s Inquiry into Access to Justice Arrangements which called for an immediate funding boost of $200 million for legal assistance services, including FVPLSs;
• the Indigenous Legal Needs Report which recommended increased funding across the legal sector to address the family and civil law needs of Aboriginal Victorians; and
• the interim report of the Senate Inquiry into Domestic Violence which supported the Productivity Commission’s recommended $200 million funding boost as well as recommending the restoration of funding cuts to legal services and noting the importance of adequate funding for policy and law reform work by legal centres.”
An additional point is that Aboriginal legal services need to be adequately resourced to undertake work for their respective communities that includes but also moves beyond individual casework. These services should be given sufficient funds to enable them to develop as strategic an approach as possible to the extensive need in the community– one that is not just reactive to the individual clients that walk through their door and seek help and advice. They should be funded to undertake more CLE, for instance, the importance of which is highlighted above, as well as policy and law reform work. The latter type of work is likely to offer a more systemic response to legal issues, including those that arise with some regularity for Indigenous people - an important point, as a number of areas of priority legal need identified by the ILNP clearly involve or derive from the negative impacts government policy and practice have on Indigenous people. This is evident in areas such as housing, child protection, social security and education. Given this, demanding that government better fund Aboriginal legal services to address civil and family law need is fair and reasonable.