Aboriginal and Torres Strait Islander Legal Services (ATSILS) are community based organisations that have operated across Australia for over 40 years. The creation of ATSILS was part of a broader national movement to enhance the legal and civil rights of Aboriginal and Torres Strait Islander Australians. ATSILS provide a range of legal services, including: legal advice, assistance, representation, community legal education, advocacy, law reform activities and prisoner through-care to Aboriginal and Torres Strait Islander peoples in contact with the justice system. Not all these services are funded through the Indigenous Legal Assistance Program (ILAP). As of 2015, ATSILS are primarily funded through the ILAP.
The ILAP is an ongoing grant program which funds ATSILS, to deliver culturally appropriate, accessible legal assistance services to Aboriginal and Torres Strait Islander people. The Commonwealth provides funding to ATSILS through direct grant agreements to deliver legal assistance services from 70 permanent locations nationally, with additional attendance at circuit courts, bush courts and outreach legal support to metropolitan, regional and remote areas. These legal assistance services include: • discrete assistance such as information, referral, legal advice, non legal support and task assistance • community legal education and early intervention and prevention activities • facilitated resolution processes • duty lawyer assistance, and • representation services for criminal, civil and family law matters.
The ILAP also provides funding to the National Aboriginal and Torres Strait Islander Legal Services (NATSILS) to support the ongoing development and continuous improvement of the ILAP and delivery of services by ATSILS, particularly through coordination and constructive policy input.
The objectives of the ILAP are: • improving access to justice for Indigenous Australians • reducing the disproportionate disadvantage experienced by Indigenous Australians in the justice system, and • providing cost effective legal assistance.
The ILAP will facilitate the achievement of the following outcomes:
a. legal assistance services are focused on and accessible by Indigenous people, particularly priority clients, nation-wide
b. quality legal assistance services are appropriate, proportionate and tailored to people’s legal needs and levels of capability
c. legal assistance providers, governments and other service providers collaborate to provide joined-up services to address people’s legal and other problems
d. legal problems are identified and resolved at the earliest opportunity before they escalate
e. Indigenous Australians are empowered to understand and protect their legal rights and responsibilities and to address, or prevent, legal problems.
The objectives and outcomes of the ILAP align with and support the objective of the National Strategic Framework for Legal Assistance 2015 2020, which is: ‘a national, integrated system of legal assistance that is focused on improving access to justice and maximising service delivery within available resources’.
Current funding arrangements under the ILAP are due to expire on 30 June 2020. In accordance with proper grant administration practices outlined in the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grant Rules and Guidelines 2017, it is an appropriate time to review the progress towards the objectives and outcomes of the ILAP.
The purpose of the Review of the ILAP was to assess the effectiveness, efficiency and appropriateness of the ILAP as a mechanism for achieving its objectives and outcomes within available resources, and identify best practice and opportunities for improvement. The Review of the ILAP will focus on how the operation of the ILAP has affected progress towards meeting its objective and outcomes. The outcomes of the Review of the ILAP will help inform future funding arrangements for Indigenous legal assistance services from 1 July 2020.The Terms of Reference stated
The Review of the ILAP will not conduct new research or in-depth analysis of the broader issues, including the level of Indigenous legal need in Australia and/or whether existing funding is sufficient to meet that need. To assess the effectiveness, efficiency and appropriateness of the ILAP and its progress towards meeting its objectives and outcomes, the Review of the ILAP will have regard to:
1. the impact that the ILAP has had on the delivery of cost effective, high quality, culturally appropriate and accessible Indigenous legal assistance services, including consideration of:
a. the appropriateness and utility of the objectives and outcomes in supporting the delivery of legal assistance services, including consideration of: i. relevance of the current landscape of the legal assistance sector, and ii. existing research about Indigenous legal need and service delivery
b. whether the ILAP promotes Indigenous legal assistance services that are effective, efficient, accessible and appropriate, including cultural appropriateness, and represent value for money, including consideration of: i. integrated legal and non-legal services ii. the cultural expertise and broader role that ATSILS provide within Indigenous and non Indigenous communities iii. the use of different modes of service delivery, and iv. value for money as consisting of a range of factors, including cost of service delivery, and qualitative factors relating to services, service location, client complexity, among others
c. whether the ILAP has improved the targeting of legal assistance services and the early identification and resolution of legal problems for Aboriginal and Torres Strait Islander people with the greatest legal need, particularly priority clients, using available analysis and bodies of research.
2. the implementation of collaborative service planning, and the extent to which it is contributing to the objectives and outcomes of the ILAP.
3. the effectiveness, efficiency and appropriateness of current funding arrangements for ATSILS and NATSILS in meeting the objectives and outcomes of the ILAP, including consideration of:
a. the drivers of demand for ATSILS
b. how and whether the funding supports the achievement of the objectives and outcomes of the ILAP
c. the interaction between the ILAP and other Commonwealth funding arrangements for legal assistance services.
4. the utility of the performance monitoring and reporting arrangements, including the collection of consistent and comparable service data in measuring the progress towards achieving the objective and outcomes of the ILAP.
5. the extent of engagement between the Commonwealth, state and territory governments, ATSILS, NATSILS and the legal assistance sector in supporting a joined up approach to addressing Indigenous legal need, including consideration of:
a. the roles and responsibilities of the Commonwealth, ATSILS and the NATSILS in supporting the objectives and outcomes of the ILAP
b. the broader role of NATSILS with community controlled organisations and non Indigenous communities
c. the extent of collaboration and coordination between the Commonwealth, the states and territories, ATSILS, NATSILS, the broader legal assistance sector and the non legal sector, and
d. the extent to which current arrangements enable NATSILS to support the ongoing development and continuous improvement of the ILAP and the delivery of services by ATSILS, particularly through coordination, collaboration and policy input within available resources.
6. identify areas for improvement and opportunities to enhance current and future arrangements.The report's findings are
Delivery of Services:
The review found that the ILAP supports ATSILSs to deliver effective, efficient, culturally appropriate and value for money legal assistance to Aboriginal and Torres Strait Islander peoples, consistent with program objectives and outcomes.
ILAP provides the primary funding for legal assistance services provided by ATSILSs, with variation across jurisdictions. ATSILSs in each jurisdiction manage a high volume of legal matters, clients in crisis and with complex needs, and large and growing demand. Nationally, the ILAP supports ATSILSs to service a high level of demand for critical, frontline response in criminal law, including providing legal representation for clients at risk of incarceration as a service priority.
Concerns were expressed that services were stretched to the extent that was not sustainable in the medium to long-term, particularly when higher levels of demand are projected across all areas of law but particularly in relation to further increasing incarceration rates, particularly for women and young people, and increased child protection and family law needs.
There was a strong desire across the board, including by ATSILSs themselves, for ATSILSs to provide expanded civil, family and child protection legal assistance services, and greater services aimed at early intervention. However, this was constrained by a lack of resources and a lack of culturally appropriate alternative criminal legal assistance services for Aboriginal and Torres Strait Islander people to access if ATSILSs were to cut back their criminal practices and redirect existing funding to other areas.
With the support of the ILAP, ATSILSs are widely acknowledged as providing quality, culturally appropriate and culturally safe legal assistance to Aboriginal and Torres Strait Islander clients. Stakeholders identified ATSILSs’ engagement of Aboriginal and Torres Strait Islander staff, knowledge of and connection to the local community, trust within the local community and cultural expertise and knowledge of cultural protocols, as factors supporting the delivery of quality, appropriate tailored services for Aboriginal and Torres Strait Islander clients.
ATSILSs employ a range of strategies to reach clients across their respective states and territories, including through regional offices, outreach clinics, community legal education, and collaborative service planning with LACs and other services. However, significant levels of unmet need were reported in some regional and remote areas by ATSILSs, magistrates and LACs. At some bush courts and remote circuits, ATSILS are the only legal assistance service available.
Collaborative Service Planning:
The review found that CSP is being implemented through a range of formal and informal strategies, partnerships, information sharing and collaborative arrangements, beyond those required under ILAP funding agreements. Although understandings of CSP vary, it is actively implemented to maximise the reach of legal assistance to areas of greatest need, to address the diversity of needs which are driving demand for legal assistance services, to provide holistic responses where possible within available resources, to increase efficiency and to avoid duplication. Long running and diverse networks of relationships exist between ATSILSs, government agencies, LACs, CLCs and community organisations which support CSP, as well as joined-up service delivery and general service coordination. There is variation in the implementation of CSP reported across jurisdictions, with the demands of front line service delivery reported as limiting the capacity of ATSILSs to actively participate in all relevant CSP forums, and variations in levels of information sharing and coordination by some ATSILSs, legal assistance providers and government agencies.
There were mixed views expressed as to whether the ILAP actively supports the implementation of CSP, and whether CSP in itself should be a measure of performance under the ILAP. At the same time, CSP was widely supported as a valuable activity by all stakeholders.
The review found that ILAP funding arrangements were generally supported by ATSILSs and long-term five-year funding agreements were received positively. There was a perception reported amongst ILAP grant recipients that ILAP funding allocation criteria and decisions are not transparent, and the beneficial impacts of funding certainty have been partly offset by the impacts of the expected funding reductions in 2017 (ultimately reversed) and forecast reductions in funding from 2020-2021. There was support from ATSILSs and the NATSILS for the Commonwealth Government to update the ILAP funding model and some administrative arrangements through a cooperative, co-design process.
The Funding Allocation Model (FAM) for the ILAP that is used to determine funding between ATSILSs, within the overall available funding, includes appropriate areas of focus but does not take sufficient account of: the complexity and diversity of legal assistance needs for individual clients; the full costs of providing services to regional and remote areas; and wage and other service cost increases.
The flexibility provided through the ILAP for ATSILSs to determine service priorities and service locations within their jurisdiction based on knowledge of local community needs remains appropriate. Although, current approaches to mapping and weighting legal need could be improved in the longer term through the development of data sets and analytical approaches that better capture the complexity of individual client needs, and could assist with future service planning.
Performance Monitoring, Reporting and Data Collection:
There are mixed views from ILAP funding recipients of the reforms introduced in 2015 to ILAP reporting, monitoring and compliance systems. Some of the recent ILAP reforms, particularly to data systems, have led to some improvements in the collection of consistent and comparable data. However, the review found that the transition and implementation of the National Data Standards Manual (DSM) varied.
There was concern expressed that: reporting remains focused on outputs and compliance, rather than performance and outcomes; does not accurately capture the services delivered by ATSILSs, and full use of the data collected is not being made. At the same time, there was the support to streamline reporting further where possible, to ensure that the staff and financial resources required for data reporting does not unduly impact the core business of delivering legal services.
The unique service models of different ATSILSs, coupled with ongoing challenges with inconsistent interpretation of data definitions within ATSILSs and across the broader legal assistance sector, mean that further work is needed to develop comparable data between ATSILSs and with the sector. Ongoing data development work is likely to require further investment within the sector, both in terms of the maintenance of collection and reporting systems over time, and to better align interpretations of the DSM.
The AGD and the NATSILS on behalf of ATSILSs raised concerns about the capacity of the AGD to manage ILAP compliance and financial reporting, including concerns about the compliance approach not taking appropriate account of different ATSILSs’ risk profiles.
Governance, Roles and Responsibilities:
The review found that the Commonwealth and ATSILSs had generally fulfilled their roles under the ILAP. Within the community, ATSILSs play a significant role in the community beyond the delivery of legal assistance services. ATSILSs are well positioned to undertake additional activities which are consistent with the objectives of the ILAP, including law reform and expanded service delivery, in coordination with other Aboriginal and Torres Strait Islander services such as FVPLSs and other mainstream legal assistance providers like LACs and CLCs.
The ILAP has supported the NATSILS to play a coordination and collaboration role between ATSILSs, government, the legal sector, other community-controlled services and non-indigenous services, consistent with the objectives of the ILAP.
There was broad support amongst the stakeholders consulted for the review for the Commonwealth to continue as the primary funder of ATSILSs and other Indigenous legal assistance services, through a stand-alone specific purpose fund such as the ILAP. There was also broad support amongst the stakeholders consulted for the review that future Indigenous legal assistance services receive increased support from state and territory governments.
Opportunities for Reform:
The review identified other potential areas of improvement for the ILAP, including but not limited to: expanded support for strategic litigation and law reform activities; support for sector growth and investment; increased staff retention; and moving towards wage parity with non-Indigenous specific legal assistance.
Pursuing strategic litigation, including test cases, was identified as a valuable activity which contributes to the ILAP objective of reducing Aboriginal and Torres Strait Islander disadvantage in the legal system. There is a perception amongst ATSILSs, the NATSILS and the broader legal assistance sector that expensive cases, strategic litigation, including test cases, are not sufficiently supported by the current ILAP.
While ATSILSs and the NATSILS undertake law reform activities where possible within available resources, it was reported that there are significant demands for expert advice for ATSILSs and the NATSILS in relation to policy and law reform from government agencies, justice agencies, other legal assistance providers and the community sector. There is a perception amongst ATSILSs, the NATSILS and the broader legal assistance sector that law reform activities are not supported by the ILAP.
Finally, workforce challenges were identified as a significant issue impacting efficient and equitable service delivery. ATSILSs experience significant challenges attracting and retaining staff, in part due to lower salaries offered compared to LACs. ATSILSs staff experience higher workloads than their counterparts in LACs. A number of ATSILSs expressed concerns that the current approach, where services are ‘stretched’ to respond to increasing demand, was not sustainable and was leading to staff burnout.