Evaluating the Australian legal aid regime? Reports from the two 2018 reviews of the National Partnership Agreement on Legal Assistance Services 2015-2020 (NPA) and the Indigenous Legal Assistance Program (ILAP) are now available.
The reviews "assessed the effectiveness, efficiency and appropriateness of the NPA and the ILAP as mechanisms for achieving their respective objectives and outcomes within available resources, and sought to identify best practice and opportunities for improvement".
The NPA Review was supported by a Steering Committee and Advisory Group. It involved the Commonwealth and the states and territories as joint parties to the NPA. The Advisory Group consisted of representatives from legal assistance peak bodies, representatives from each jurisdiction's legal assistance sector, research organisations or industry bodies and eminent persons with expertise in the sector. This group provided a forum for consultation and provided the Steering Committee and Independent Reviewer with expert guidance and input on key issues.
The NPA Terms of reference were
The purpose of the Review is to assess the effectiveness, efficiency and appropriateness of the NPA as a mechanism for achieving its objective and outcomes within available resources, and identify best practice and opportunities for improvement. The Review will focus on how the operation of the NPA has affected progress towards its objective and outcomes. The outcomes of the Review of the NPA will help inform future funding arrangements for legal assistance services from 1 July 2020.
The Review of the NPA will not conduct new research or in-depth analysis of the broader issues, including the level of legal need in Australia and/or whether existing funding is sufficient to meet that need.
To assess the effectiveness, efficiency and appropriateness of the NPA and its progress towards meeting its objective and outcomes, the Review of the NPA will have regard to:
1. the impact that the NPA has had on the delivery of efficient and effective legal assistance services, including consideration of:
a. the appropriateness and utility of the objective and outcomes in supporting the delivery of legal assistance services, including consideration of:
i. relevance to the current landscape of the legal assistance sector, and
ii. existing research about legal need and service delivery
b. whether the NPA promotes legal assistance services that are effective, efficient and appropriate and represent value for money, including consideration of:
i. integrated legal and non legal services
ii. the broader role these services provide within 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 NPA has improved the targeting of legal assistance services to people facing disadvantage, including priority clients (Schedule B), thereby improving access to justice for those who have the greatest legal need .
2. the implementation of collaborative service planning by the Parties, and the extent to which it is contributing to the objective and outcomes of the NPA.
3. the effectiveness, efficiency and appropriateness of current funding arrangements in meeting the objective and outcomes of the NPA, including consideration of:
a. the shared responsibility of the Parties in the operation of the NPA and the provision of legal assistance services
b. if and how Commonwealth Social and Community Services (SACS) supplementation was distributed
c. the drivers of demand for legal assistance services
d. how and whether funding under the NPA supports the progress towards achieving its objective and outcomes
e. the interaction between the NPA 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 NPA, including consideration of:
a. performance indicators (Clause 17)
b. performance benchmarks (Clause 18)
c. milestones (Clause 19)
d. reporting arrangements (Clause 20), and
e. support systems for data collection and reporting.
5. the extent to which the Commonwealth and the states and territories have fulfilled their agreed roles and responsibilities and how the Parties to the NPA and the legal assistance sector have worked together to support a holistic approach to addressing legal need.
6. identify areas for improvement and opportunities to enhance current and future arrangements.
The report states
The NPA represents a key part of a second ‘wave’ of reforms to the legal assistance sector. It follows earlier reforms commencing with the Intergovernmental Agreement on Federal Financial Relations in 2009 and the first National Partnership Agreement on Legal Assistance Services (2010-2015) (Council of Australian Governments, 2009a, 2010). In broad terms, the reform directions are focused on supporting a legal assistance sector that is efficient, effective and equitable, and which operates in a collaborative and coordinated way.
Within the NPA, these directions are echoed within the objective of the agreement:
…a national legal assistance sector that is integrated, efficient and effective, focused on improving access to justice for disadvantaged people and maximising service delivery within available resources. (Council of Australian Governments, 2015 cl 8)
The NPA is also intended to facilitate five key outcomes (Council of Australian Governments, 2015 cl 9):
• legal assistance services are targeted to priority clients with the greatest legal need
• legal assistance service providers collaborate with each other, governments, the private legal profession and other services, to provide joined-up services to address people’s legal and related problems
• legal assistance services are appropriate, proportionate and tailored to people’s legal needs and levels of capability
• legal assistance services help people to identify their legal problems and facilitate the resolution of those problems in a timely manner before they escalate, and
• legal assistance services help empower people to understand and assert their legal rights and responsibilities and to address, or prevent, legal problems.
The primary mechanisms to achieve these outcomes within the NPA include (Council of Australian Governments, 2015 cl 10-16):
• establishing priorities and eligibility principles to guide effective targeting of services to those most in need
• funding of legal aid commissions (LACs) and community legal centres (CLCs) to deliver legal assistance services, including provision of defined funding from 2017-18 for family law services and family violence related services
• distribution of Commonwealth supplementation funding to CLCs impacted by Fair Work Australia’s 2012 Equal Remuneration Order (ERO), in accordance with the National Partnership Agreement on Pay Equity for the Social and Community Services Sector (Council of Australian Governments, 2013)
• Collaborative service planning (CSP) to improve the coordination between services in the planning and delivery of services
Community legal centres previously received Australian Government funding directly from the Attorney-General’s Department; the NPA transitioned CLC funding into the agreement to be administered by states and territories. This brought CLC funding into alignment with Australian Government funding for LACs, which had flowed through an NPA structure since 2010.
Implementation of the NPA is supported by the establishment of performance indicators and benchmarks, and associated monitoring and reporting processes (Council of Australian Governments, 2015 cl 17-18). The parties to the NPA also agreed to completion of a review of the NPA to conclude approximately 18 months prior to the agreement’s expiry (Council of Australian Governments, 2015 cl 41-43). The review being undertaken by Urbis and which is the subject of this report is in fulfilment of this agreement. xxx The following findings are based on the consultations, written submissions, data and document review.
The aspirations, objectives and principles within the NPA remain appropriate
The previous National Partnership Agreement on Legal Assistance Services 2010-2015 sought to support a “holistic approach to the reform of the delivery of legal assistance services by legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander Legal Services and family violence prevention legal services” (NPA 2010-15 cl3). The agreement espoused whole-of-sector aspirations of efficiency, cost-effectiveness, and targeting disadvantaged Australians in “accordance with access to justice principles of accessibility, appropriateness, equity, efficiency and effectiveness” (NPA 2010-15 cl15).
The current NPA has retained similar emphasis in its objectives and outcomes (set out earlier), and has introduced strengthened mechanisms to support service targeting, planning and coordination alongside integration of CLC funding into the agreement. Sector support for the aspirations of the longer-term reforms of this NPA is high, providing an enabling foundation upon which future arrangements can build. However, transitional and implementation challenges have limited the directly identifiable improvements to sector effectiveness and efficiency in the short term – most particularly for the CLC sector.
A broad range of factors shape demand for legal assistance services
There is a consistent narrative among sector stakeholders that growing demand for legal assistance services coupled with increasing costs of delivery are placing significant external pressure on services, and that this significantly compromises the achievement of the NPA’s aspirations. Some of the demand drivers relate to socio-demographic and economic factors, but others stem from the introduction of policy reforms, legislation and regulation – the impact of which is not consistently assessed for use as an input to sector planning. In rural, regional and remote Australia, delivery of legal assistance services is challenged by higher operational costs, workforce challenges and higher levels of disadvantage.
While strategic advocacy and law reform can be an efficient use of limited resources, constraints on using Commonwealth funding for lobbying and public campaigning within the NPA is perceived by CLCs to limit their contributions in this area.
The experience and implementation of the NPA varies between jurisdictions and sub-sectors
States and territories have adopted different approaches to implementation of the NPA. The implementation context in each jurisdiction also varies in terms of the pre-existing systemic infrastructure, including the extent to which relationships and platforms for collaborative services planning were already in place.
Legal aid commissions have experienced a relatively smooth transition to the NPA, which maintained similar funding processes while streamlining reporting arrangements and increasing flexibility in service design (compared to the prior 2010 – 2015 agreement). However, CLCs have had a markedly different experience due to four key factors. These have included the transition to a new funder relationship; the impacts of anticipated funding cuts in 2017 (although subsequently reversed); a challenging transition to a new reporting system (CLASS); and the implementation of new sector wide data standards.
The NPA enables, but is not driving innovation in legal assistance service delivery
Legal aid commissions consistently observe that innovative approaches are enabled by the focus within the NPA on well-targeted services, provision of greater flexibility in how funding is used, and explicit encouragement of collaborative working. In several jurisdictions, the development, expansion or exploration of socio-legal supports for legal aid clients has been enabled by the more flexible scope afforded to LACs under the NPA.
Community legal centres have historically sought to develop novel ways of reaching disadvantaged clients, offer or partner with integrated socio-legal services. These innovative practices continue in the context of the NPA although are generally not attributed by CLCs to the NPA (in several cases specific innovations are enabled by Community Legal Services Program (CLSP) grants or Indigenous Advancement Strategy grants).
While there are many examples of innovation in the sector, there are few mechanisms within the NPA to drive innovative practices, and the evaluation of innovation success and scalability.
The NPA has not yet impacted system efficiencies, largely due to transitional and implementation costs
At the service level, a high level of pre-existing operational efficiency is consistently reported by LAC and CLC stakeholders. Legal assistance services operate efficiently on the whole, and work hard to ‘stretch the dollar’ as far as they are able - this view receives qualified supported from prior reviews of the sector. At the system level, prior reviews have identified efficiency opportunities associated with economies of scale for smaller CLCs.
However, the introduction of the NPA has had a negative impact (albeit small and transitional) on the internal efficiency of many of the services that make up the legal assistance sector. Many within the CLC sector reported the loss of staff and corporate knowledge as a direct result of the anticipated funding reductions in 2017. The proposed funding cuts created significant costs as a result of uncertainty in the sector leading to losing and then having to recruit and train new staff.
More generally, in jurisdictions where funding agreements remain short term, there is very little incentive (or capacity) to incur the upfront costs of investment in infrastructure and systems that could enhance efficiency in the medium to long term. This includes, for example, investments in technology platforms that speed up administrative processes or help staff work more efficiently.
The slow delivery of the Community Legal Assistance Services System (CLASS) system (the new national CLC database) has created operational inefficiencies (particularly functional limitations requiring workarounds) at CLC level. The introduction of the Data Standards Manual (DSM) to support collection of consistent and comparable data has also required significant investment in systems and training for both CLCs and LACs, and this is very likely to have had a negative transitional impact on service efficiency.
This review does not make findings on the extent to which sector resources are currently efficiently distributed. It is noted that at the sector level, with the exception of South Australia, there have been no substantial reconfigurations or recalibrations of services. This may indicate that there are relatively few underlying distributive inefficiencies that would give rise to a need for reconfiguration; alternatively, if these inefficiencies do exist they have not yet been addressed through the mechanisms of the NPA.
At present, there appears to be little formalised information sharing across jurisdictions, resulting in missed opportunities to share information, resources and good practices (for example, around approaches to CSP).
The sector continues to deliver value for money under the NPA
Diverse funding streams (in addition to the NPA), difference in cost-factors across geographies and sub-sectors, variability in how ‘effort’ and service quality are measured, and the difficulty measuring outcomes mean that the quantification of value for money created by the legal assistance sector has not been possible within the scope of this review. The paucity of data to support value for money assessment has also been noted in prior sector reviews.
However, a range of factors support a finding that the sector delivers good value for money. Legal assistance services under the NPA have a strong focus on targeting financially disadvantaged clients, and other priority groups who are otherwise unlikely to secure legal advice or representation. This underpins a core value proposition for the sector, with legal assistance services contributing to efficient resolution of legal problems, as parties operating without advice or representation add time and cost to legal processes and to the courts. Clients who are subject to legal orders may also be more likely to breach those orders if they do not understand them or the consequences of breach. More generally, legal advice or representation assists in securing better outcomes for clients.
The NPA also supports early intervention through required reporting on community legal education (CLE), legal task assistance and pre-court resolutions. The integration of legal and non-legal services (for example, financial counselling in CLCs, family support workers in some LACs) also create a better service experience for clients, allow lawyers to efficiently focus on core legal work, and are enabling of better legal outcomes. Together, these practices are likely to reduce downstream costs and deliver value to the community.
A further marker of value for money lies in the ability of LACs and CLCs to leverage low cost legal support services outside their organisations, through grants of legal aid at rates below private market cost and coordination, the facilitation of significant pro bono support from legal professionals, and utilisation of law students and paralegals.
The intent of collaborative service planning is well supported, although there is significant variability in implementation
The NPA introduced formal CSP, building on the Legal Assistance Forums established under the 2010-2015 agreement, with emphasis on two core elements. These are the use of evidence and data to identify priority clients and geographies to target services, and the conduct of CSP meetings at least twice annually to discuss strategies for streamlining services and reducing duplication (Schedule A). Collaborative service planning processes are in place within all jurisdictions, and the core principles of area-based, evidence-informed planning continue to enjoy support from the sector.
In all jurisdictions LACs, CLCs and ATSILSs participate in formal CSP forums, as required under the NPA and ILAP arrangements, while other sector stakeholders are variably involved. In some, but not all jurisdictions, this includes FVPLS. There is considerable variation in the participating stakeholders in CSP cross jurisdictions and the role of non-NPA funded services in the process is unclear.
Approaches taken to CSP vary considerably, and practices are at different stages of development across jurisdictions. This reflects in part the different starting points in terms of pre-existing platforms on which CSP could build, and the scale, structure and context of the legal assistance services in each jurisdiction. The variations observed include differences in intent, focus, scope, and geographic scale, as well as process differences relating to who ‘drives’ the CSP process, who participates, and what data informs discussions.
Collaborative service planning also varies in focus – in some contexts this is on strengthening communication by participants to support services to plan their work in a coordinated way. At the other end of the spectrum, there are examples of active collaboration through the initiation of joint projects or services involving multiple providers.
Collaborative service planning is perceived by stakeholders to be more effective where there is clarity of purpose, where it is supported by strong sector relationships, and where resources are committed to support the effective participation by key contributors to CSP processes.
There is considerable scope for more effective implementation of collaborative service planning
Clarity of purpose within CSP sustains its focus and direction. At present, the approaches adopted are inconsistent at the national level, in part emerging from a lack of clarity within the NPA itself. The scope of CSP as can be read into the NPA is diverse, and includes:
• collaborative working and partnership-driven service delivery to deliver joined-up services
• better coordination of existing services to maximise reach and minimise system gaps
• efficient distribution and allocation of resources – with the implication being that this applies to internal allocations within LACs (and ATSILS), and between CLCs
• driving system efficiency and effectiveness.
Factors that have hindered CSP include competitive tensions (related to the funding environment), perceptions of conflicted interests among some participants, and perceived power imbalances associated with the relative scale and influence of different sector actors. Some stakeholders also expressed cynicism about the process resulting in ‘gap shifting’ in the context of a resource constrained environment.
While CSP embraces a focus on the whole of the legal assistance sector, engagement by parties other than government and LACs generally requires resourcing trade offs where participation is unfunded. In smaller organisations, the proportional impact of this is higher, and as a result, the level of participation varies. This is more evident in, although not exclusive to smaller jurisdictions.
The promise of CSP is more likely to be fully realised with more attention to strengthening the enabling factors and addressing those that hinder its effectiveness. This includes providing clearer, national guidance on purpose and process, developing and sharing of resources and data, and implementing strategies to strengthen information sharing between jurisdictions. Useful practices in some jurisdictions include ‘tiered’ approaches to CSP, which allow for both jurisdiction-wide conversations to occur, complemented by more localised/regional approaches.
Funding has been consolidated, but there are further opportunities for streamlining
Prior to 2010, Australian Government funding for LACs was negotiated directly with each LAC. The first NPA (2010-15) brought into one agreement Australian Government funding to states and territories for the provision of legal aid services in Commonwealth law matters (with some important exceptions), with funding administered by states and territories. Funding for the other key components of the legal assistance sector (CLCs, ATSILS and FVPLS) was administered separately by the Australian Government.
The current NPA (2015-2020) continues the trajectory of earlier reforms in seeking to devolve allocative decision-making to states and territories.
The Australian Government determines distribution of NPA funding to states and territories through Funding Allocation Models (FAMs) developed for LAC and CLC funding. The models determine allocations by accounting for differences in establishment costs, population, legal need indicators and cost factors across states and territories (Attorney-General’s Department, 2015).
The specific FAMs were not available to the review team. However, some stakeholders have reservations about whether the model appropriately weights factors that contribute to the cost and complexity of service delivery in their jurisdictions. Others observe that the model produces distributions that differ significantly to those of models used for other NPAs. There were consistent calls for greater transparency in how funding allocations are determined at the national level.
Funding for CLCs was ‘locked in’ for the first two years of the NPA. From 2017-2018, states and territories have determined NPA funding allocation to CLCs. To date, individual CLCs have generally continued to receive close to historical funding levels, with some exceptions.
The introduction of new FAMs saw a re-distribution of the total pool of Australian Government Funding, and some states and territories experiencing significant changes in their funding allocations (Table 1). South Australian and Tasmania experiencing overall decrease in funding of approximately seven percent in the first year of the agreement compared to the prior year, and the Northern Territory receiving a largest proportional increase of 27.5 per cent, followed by Western Australia with 10.7 per cent (all other jurisdictions received a net increase in dollar terms). Allocations also changed significantly within the LAC and CLC pool for some states and territories.
xxxx The extent that the NPA as an instrument is able to influence sector coordination, collaboration and efficiency is partly limited by the leverage it is able to bring to bear. This is largely (but not solely) a function of the underlying funding that is integrated into the agreement. The existence of other funding streams into the sector and administered outside the agreement reduces the breadth of influence exercised by the NPA. A second impact of external funding streams lies in the reporting burdens associated with inconsistent data and reporting requirements attached to multiple agreements.
Contextual factors influence the appropriateness of integrating any specific funding stream into the NPA, including consideration of program alignment with NPA goals, and whether efficiencies will be leveraged for funders, administrators or recipients. For Indigenous-specific programs, broader factors also include Australian Government’s national leadership role within Indigenous affairs, any impacts on self-determination, and the underlying drivers of disadvantage and engagement with the legal system by Indigenous people.
Short term funding cycles and the residual effects of proposed funding cuts in 2017 (subsequently reversed) impact negatively on CLCs
Community legal centres report significant impacts from the anticipated reductions in Australian Government funding, which were due to take effect in 2017. While the reduced funding was ultimately offset by the distribution of defined funding, there were a range of negative impacts, some of which are still being felt within the CLC sector. The impacts were lessened in jurisdictions where state governments increased funding or provided funding assurances.
The anticipation of significantly reduced funding and uncertainty about how a smaller ‘pool’ would be distributed created an environment of increased competitive tension between CLCs. In some jurisdictions, this was characterised by what was described as an erosion of trust within the sector that is taking time to restore. Increased competitive tension has also impacted on the willingness of some in the CLC sector to fully engage in CSP.
Operational impacts were also significant, with CLCs reporting impacts on staff morale and loss of staff due to uncertainty of tenure as CLCs prepared to scale back services, and costs attached to having to rebuild their workforce following the announcement of defined funding.
More broadly, the continuation of short term funding cycles (1-2 years) in some jurisdictions coupled with the impacts of the 2017 funding changes undermined the capacity of CLCs to secure their workforce. This is exacerbated by CLCs struggling to compete with other legal services in terms of remuneration (for lawyers), security of employment and employment conditions.
Reporting under the NPA is a relatively low burden
The NPA introduced new reporting arrangements incorporating performance indicators in five key areas, aggregated at state-wide level. The indicators address the proportion of representation services reaching priority clients, quality of service measured through client surveys, the quantum of facilitated resolution processes and proportion of conferences achieving full or partial settlement (LACs only), the quantum of service delivered to clients experiencing or at risk of family violence (CLCs only), and the quantum of legal assistance services. Benchmarks (with financial abatements for underperformance) are attached to the proportion of representation services to financially disadvantaged clients.
Overall, reporting requirements are a relatively low burden, and the focus on service targeting and quality in addition to service volume is positively perceived, particularly by LACs. Perceptions of reporting requirements vary among CLCs, depending on the state-specific requirements associated with state and territory funding arrangements. Legal aid commissions and CLCs also observe the range of inconsistencies between NPA reporting and other program reporting (attached to both Australian Government and other funding streams), with greater alignment or integration of reporting arrangements of value to the sector.
Client surveys have been implemented for LACs in all jurisdictions and for CLCs in many, and their value to understanding client perspectives and experience of service is broadly appreciated by the sector. There are, however, significant methodological challenges associated with surveying vulnerable populations that place some limitations on how the data can be interpreted.
Data has not been routinely provided back to reporting organisations in a way that might support them to compare their own activity with peer organisations at the state and national levels. At the same time, the transition to the DSM and from the previous CLC database, the Community Legal Services Information System (CLSIS) to the CLASS system has led to significant concerns about data quality, and particularly comparability of CLC data. There has been ongoing refinement of CLASS and despite a challenging roll out, the database is now considered suitable for most CLC stakeholders.
The review also found some inconsistencies in how different LACs report their data which also inhibits comparability. These concerns are expected to abate over time, although there remains significant work to be done to support the sector to fully transition to the new data standards.
NPA indicators are limited in their representation of sector performance
There are several specific issues raised by LACs and CLCs in relation to the usefulness of the indicators associated with the NPA. While the LACs noted that the new indicators represent an improvement on the prior NPA, overall, sector stakeholders have observed three key limitations. These were that the current set of performance indicators:
• do not consistently capture the full range of outputs created by NPA-funded legal assistance services
• inadequately represent the variability, complexity and extent of input effort or work done to deliver each unit of output, and
• do not represent outcomes achieved by the sector.
The development of the National Strategic Framework for Legal Assistance provides a strong foundation for the future alignment of outcomes and performance monitoring for the sector with the potential introduction of indicators and evaluative guidance in future revisions.
The data standards continue to be ‘bedded down’ across the sector, but represent solid progress toward more uniform data at the national level
The National Legal Assistance Data Standards Manual (DSM) was developed to provide guidance to the sector on the collection of consistent and comparable data. The intent of the DSM is generally supported within the sector, and the value of improved data to the development of sector planning and performance monitoring are acknowledged.
The DSM itself acknowledges that the process of improving the collection and use of data is an iterative one, and this is borne out in the experiences of the sector over the course of its implementation. Both LACs and CLCs (through the National Association of Community Legal Centres (NACLC)) received funding to support the sector to transition to data systems that were compliant with the DSM and supported new reporting requirements under the NPA.
However, there have been ongoing issues associated with variability in how the DSM is interpreted, applied and reported at service level and between jurisdictions. For CLCs, challenges transitioning to the DSM have exacerbated (and been exacerbated by) transitional difficulties with implementation of the CLASS system.
Further work is required to ‘bed down’ the changes, continue the ongoing work of refinement and improvement to the definitions, and to support services in the collection of consistent and comparable data. This is a leadership role most appropriately located with the Australian Government, in partnership with state and territory governments and sector peaks.
Governments have largely fulfilled their formal roles and responsibilities under the NPA, but there are opportunities for more active policy leadership
The Australian Government’s responsibilities as defined under the NPA are broadly limited to provision of funding to states and territories, monitoring performance, specifying Australian Government priorities and eligibility principles, and providing guidance on CSP and a forum to facilitate information sharing. Overall, these responsibilities have been met, although minimally in the case of establishing an information sharing forum.
State and territory governments’ responsibilities include the administration and distribution of funding provided under the NPA (including SACS funding), undertaking CSP, facilitating client surveys, monitoring assessing and reporting on the delivery of services under the NPA. These responsibilities have been met, although as noted earlier, the maturity of CSP processes varies across and within jurisdictions.
The Australian Government has a narrowly defined role under this NPA. State and territory governments have had to recalibrate their approaches to allocative, administrative and policy functions of sector leadership in a number of different ways.
Future arrangements present an opportunity to better codify the individual and shared responsibilities of the Australian Government and the states and territories. There are specific opportunities for the Australian Government to take a leadership position on data development and information sharing at the national level.
The consequent recommendations are -
1
To support the attainment of NPA objectives and outcomes (which are sound and widely supported), the next agreement should incorporate a wider range of mechanisms to strengthen implementation of initiatives addressing NPA goals grouped under:
• strategic and policy leadership
• provision and allocation of funding
• sector planning and development
• performance monitoring and evaluation
• research, innovation and evidence building.
2
To ensure the responsibilities of governments under the NPA are well defined and complementary, the NPA should explicitly set out the roles of the Australian Government and state and territory governments for the key areas defined within recommendation 1. This would encompass areas of sole and joint responsibility.
3
To support the rigour and improve the transparency of the funding formula to determine allocations to jurisdictions, the current FAMs should be reviewed (and if appropriate, updated) by an independent body to inform negotiations around Australian Government funding to states and territories under the NPA.
4
To ensure funding remains stable in real terms at state and territory level, the FAMs should incorporate provision for the indexation of supply-side costs and demand drivers as forecast at a jurisdictional level and applied over the duration of the agreement. This would include, for example, the use of labour cost indexation formulae that are specific to each state and territory, and updated socio-demographic forecasts drawing on the most current data available.
5
To capitalise on opportunities to streamline Australian Government funding programs to the legal assistance sector (including those administered outside of the Attorney-General’s Department), the Australian Government should consider their potential integration into the NPA on a case-by-case basis. This would include consideration of:
• the extent to which NPA integration would support or detract from the purpose of the funding
• the extent to which NPA integration would simplify funding administration and reporting for funders and funded organisations
• the appropriate positioning of allocative decision-making, being either at Australian Government or state and territory level – informed by collaborative service planning.
Where appropriate, this might include provision for Australian Government ‘own purpose’ funding to be noted within the agreement (i.e. funding that continues to be directly administered by the Australian Government).
6
To enable greater flexibility within future funding arrangements, and to facilitate integration of new funding streams, the multi-lateral NPA could be supported by bi-lateral agreements to which schedules can be affixed on a jurisdiction-by-jurisdiction basis.
7
To provide certainty of base funding and to reduce inefficiencies associated with short-term funding cycles for CLCs, the NPA should encourage states and territories to administer longer term core funding cycles for CLCs of at least three and up to five years.
Recommendation 8
To enable states and territories flexibility to prioritise funding to respond to emerging trends or demand fluctuations, capitalise on innovation opportunities, and provide pathways for high-performing CLCs to access additional funding, a proportion of NPA funding should be able to be allocated on a flexible basis, in addition to base funding.
9
To ensure that distribution decisions are based on present legal needs and service capability, states and territories should give consideration to allocating NPA funding to CLCs that are currently not receiving funding under the agreement, but which are well placed to deliver the required services.
10
To strengthen the consistency and effectiveness of collaborative service planning, governments should:
• apply the principles of collaborative service planning across national, state and regional/local levels (the latter more applicable in larger jurisdictions)
• establish (or continue) periodical forums for government and legal assistance sector actors at each geographic ‘tier’ to consider the available evidence and data on legal need, develop strategies to address identified gaps or priorities, and to guide priority projects requiring a collaborative response
• over time, engage a wider range of stakeholders in collaborative service planning beyond the justice portfolio, in particular those whose services and clients bring them into regular contact with legal assistance services
• incorporate impact and outcomes reporting on collaborative service planning to encourage more structured and purposeful activities.
11
To provide greater clarity of the intent of collaborative service planning, the Australian Government should develop further, more specific, guidance on the underlying principles and expected outcomes of CSP. While focusing on the intended result of CSP, this guidance should continue to allow for flexible and adaptive implementation models suited to each jurisdiction’s context.
12
To support the regular and effective contributions of LACs, CLCs, ATSILSs and FVPLSs to collaborative service planning processes, governments should ensure their participation is adequately resourced. This includes considering whether representative organisations (e.g. state-based peaks) require specific-purpose funding in order to fully participate in, and meaningfully contribute to CSP.
13
To support ongoing sector development and efficiency, the Australian Government should convene a legal assistance sector forum every two years. The forum would showcase demonstration projects and their outcomes in line with NPA goals; provide a platform for sharing resources, good practices and emerging learnings; and include key presentations on the “state of the sector” focussing on national trends and issues.
14
To improve the consistency of implementation of data standards, and to support the longer-term development of more robust, consistent and comparable data, the Australian Government should prioritise and fund delivery of further guidance and targeted training for the CLC sector, coordinated at the national level.
15
To better enable a planned and more efficient response to policy-driven demand for legal assistance services, the Australian Government and state and territory governments should consider the use of legal assistance impact statements when introducing new policies, regulation or legislation. This information will support more effective and proactive collaborative service planning.
Legal assistance impact statements should also be encouraged beyond justice portfolios (encompassing the courts, police, and corrective services, and criminal, family and many civil law matters). They should also be applied in other portfolios including child protection, immigration, homelessness and housing. The practice of assessing expected impacts on demand for legal assistance might also extend to major government inquiries resulting in reforms that have the potential to create significant additional (if sometimes temporary) demands on legal assistance services.
16
To enable the development of a longer term ‘performance story’ for the legal assistance sector, the National Strategic Framework for Legal Assistance should be updated to incorporate key indicators attached to each of its outcomes, and provide guidance on purposeful, cost-effective monitoring and reporting activity at the service and sector level.
17
To ensure reporting burden imposed by the NPA remains proportionate, future arrangements should retain emphasis on cost-effective reporting that balances collection burden with the value created for government and the sector. This should include increasing focus on feeding back insights emerging from reported data to those collecting and reporting the information.
18
To support more robust analyses of value for money and to inform future policy development in the sector, governments should establish a national legal assistance sector research and evaluation agenda. This could guide the development of a stronger evidence base in relation to the quality and appropriateness, efficiency, effectiveness and socio-economic return delivered by the legal assistance sector, and would complement existing analyses of legal need being undertaken in support of collaborative service planning.
19
To facilitate ongoing improvement to the reach, quality and efficiency of legal assistance services, the NPA should strengthen its support for innovation. It is recommended that the NPA should:
• maintain flexibility in how its funding is expended to encourage and enable service level innovation
• provide specific funding for innovative pilot initiatives designed to support NPA objectives
• support learnings capture across jurisdictions, including a stronger focus on evaluation and scalability-testing for successful innovations
• support collaborative problem-solving and sector/service innovation through collaborative service planning.
20
To strengthen information and evidence sharing within the sector and contribute to reduced duplication of research and development effort, the Australian Government should establish a national clearing house for innovative and/or effective service models in line with NPA goals; training and workforce development initiatives; evaluation and research reports; and CLE and other resources.
21
To address consistent perceptions in the CLC sector that the lobbying clause precludes or constrains law reform and advocacy work, the NPA should incorporate a clearer definition of lobbying and the specific activities towards which NPA funding cannot be applied.
