National Legal Assistance Partnership

National Legal Assistance Partnership

Legal aid is a co-operative scheme between the Commonwealth and state governments to provide legal help to those who need it most. 

The legal assistance sector helps people to live healthy and productive lives in our community. We act as a safety net, supporting people to navigate complex systems, understand their rights and responsibilities and working with the community to prevent legal problems from occurring or getting worse. 

A National Partnership Agreement (NPA) provides Commonwealth Government funding to states and territories to distribute to legal aid commissions and community legal centres. Commonwealth funding for legal aid must be used for preventative and early intervention services or for Commonwealth law matters only (such as family law, child support, social security and Commonwealth criminal matters). 

The current agreement will expire on 30 June 2020, and the Commonwealth has released a consultation paper to inform negotiations for the next agreement, proposed to be called the National Legal Assistance Partnership (NLAP).

Some of the current key challenges include:

Commonwealth’s decreasing share of legal assistance funding 

Our Annual Report shows that in 2018–19, the Victorian state government provided $129.7 million to Victoria Legal Aid, including $18.4 million in direct funds and project grants for community legal centres. The Commonwealth provided $49.9 million for Victoria Legal Aid, $6.6 million in direct reimbursement for the Expensive Commonwealth Criminal Cases Fund, and $11.2 million for community legal centres. 

Commonwealth funding represented 30 per cent of the government funding we received last financial year.

To provide the legal services people need, the Victorian Government’s 2016 Access to Justice review recommended that the Commonwealth’s share of funding needed to rise back to at least 40 per cent over time. The Productivity Commission’s 2014 Access to Justice Arrangements inquiry also recommended a large immediate injection of funding for legal assistance nationally.

We have been servicing growing demand from the community with our existing resources, but we can no longer afford to meet this demand without increased Commonwealth support for the whole legal assistance sector. Indexation under the NPA is not equivalent to the consumer price index, funding has not been adjusted for population growth, and there is no transparency in the current funding allocation model. 

Under the current means test for legal aid in Victoria, people below the poverty line may not be eligible to be represented. Legal aid fees are so low that it is becoming increasingly difficult to attract legal practitioners to conduct a reasonable amount of legally aided work, particularly in regional areas. This is unfair to the community and must be addressed through additional funding.

Growing demand for Commonwealth legal assistance

The family law system is the largest single driver of cost and demand for assistance in Commonwealth law matters. Around two-thirds of Commonwealth legal aid funding goes towards family law assistance.

Families need a justice system which keeps them safe and helps them to resolve disputes fairly and in the best interests of their children. Family law problems are one of the main legal issues faced by family violence victims. 

Despite this, family law legal aid eligibility has been drastically reducing because of the limited funding available. For example, in Victoria, people are not automatically eligible for legal aid for family law court representation currently, even where they have low (or no) income, are a victim of family violence and have a substantial issue in dispute.

Other Commonwealth Government activities, including the National Disability Insurance Scheme, social security, immigration, and royal commissions are also driving demand for legal assistance. For example, the expected expansion of the NDIS to 460,000 people by 2020, is an effective doubling of demand. Legal aid will need to keep pace with this expansion.

Without additional government funding and new funding arrangements, we may not be able to provide the services the community needs, leaving more people to navigate complex systems without legal and specialised support.

Increasing demand from court appointed legal assistance

We are currently directly reimbursed for some Commonwealth criminal law cases through a separate arrangement, the Expensive Commonwealth Criminal Cases Fund (ECCCF). The Commonwealth is proposing to remove this reimbursement fund and replace it with fixed funding under the NLAP. Any shortfalls each year would need to be met from the remainder of legal aid funding.

If the ECCCF is not retained and sustainably funded, there is a risk of seriously eroding legal aid funds. The number of people we help with other legal issues, such as family law matters, may need to be significantly reduced in order to fund legal assistance in expensive Commonwealth criminal law cases, typically matters such as large drug importation or terrorism offences. The state courts can order us to fund these cases under legislation, even if we refused. 

A similar demand-based funding model is also needed for administering funding for Independent Children’s Lawyers (ICLs), who are appointed by the family law courts. ICLs play a vital role in representing the best interests of children in family law disputes. Funding of ICLs would be more appropriately supported through a dedicated funding pool which reflects that they are appointed by the Court not legal aid commissions. 

ICLs have never been properly recognised or funded through the NPA. Providing this important function remains a priority but necessarily affects the availability of general legal aid funds remaining. Funded ICL appointments have increased by nearly 20 per cent, and case costs have increased by over 60 per cent, up to over nine million dollars per year, in the last seven years. 

A separate funding stream for Aboriginal and Torres Strait Islander Legal Services

At present, the Commonwealth funding arrangements with Aboriginal legal services is via a separate Indigenous Legal Assistance Program (ILAP). The Commonwealth government has announced its intention to roll this program into the next national agreement, the NLAP. An independent review of ILAP commissioned by the government last year recommended that it remain a separate program. Aboriginal legal services also strongly support a separate fund as imperative to recognising principles of self-determination and the rights of Aboriginal and Torres Strait Islander communities. We support the views of Aboriginal legal services in line with these principles.

More information

Read about our vision, purpose and values.

Read our reconciliation action plan.

Read about organisations we work with

Read the Victorian Government’s 2016 Access to Justice review.

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