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Review of the National Partnership Agreement on Legal Assistance Services Final Report

June 2014

Prepared for the Australian Government Attorney-General's Department

R E V I E W O F T H E N P A O N L E G A L A S S I S T A N C E S E R V I C E S

The Allen Consulting Group ii

Allen Consulting Group Pty Ltd

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Disclaimer: While the Allen Consulting Group endeavours to provide reliable analysis and believes the material it presents is accurate, it will not be liable for any claim by any party acting on such information. © Allen Consulting Group 2014


The Allen Consulting Group iii

Preface

The Review of the National Partnership Agreement on Legal Assistance Services (the NPA) was undertaken over the period May 2012 to June 2013. The Review entailed a number of phases drawing from existing information, gathering new information and an ongoing process of consultation with the legal assistance sector and the justice system more widely.

A draft of the Review report was released to members of the project governance committees in April and May 2014. In view of the passage of time since the draft was completed, feedback was sought on any matters of fact. The governance committees included state and territory justice departments and national bodies representing the providers of legal assistance services.

This report draws together each of the Review components into key findings and the emerging challenges for legal assistance services. A series of working papers detail the analysis that has informed this report. The working papers report on the following components of the Review.

• Development of the NPA evaluation framework (working paper one).

• Assessment of the quality, efficiency and cost-effectiveness of legal assistance services through implementation of the NPA evaluation framework (working paper two).

• Analysis of the market for legal services, including legal assistance services (working paper three).

A separate report has been prepared on progress towards the NPA objectives, outcomes and outputs through the legal aid commissions (the legal aid commission report). This assessment is based on the performance benchmarks and indicators set out in the NPA for services funded under the NPA. Of the four types of legal assistance services programs reviewed, legal aid commissions are the only services to be funded by the Commonwealth under the NPA and accountable for reporting on the agreed national performance benchmarks against the NPA performance indicators.

This report presents options to address challenges to the provision of effective legal assistance services emerging from the key Review findings. These options are aimed at both shorter-term improvements to existing arrangements as well as setting out potential areas for action to achieve more substantial system-wide reform.


The Allen Consulting Group iv

Acknowledgments

The Allen Consulting Group acknowledges the generous participation of all stakeholders approached for input to the Review. The project team has valued the time taken and depth of insights provided by stakeholders especially through the input of legal assistance service providers and employees within Aboriginal and Torres Strait Islander legal services, community legal centres, family violence prevention legal services and legal aid commissions.

Important perspectives have been contributed by peak organisations within the legal assistance service sector; legal system representatives including courts, judiciary, police, law societies and bar associations; legal assistance jurisdictional forums; and other organisations and individuals who interface with the legal assistance service sector.

We also acknowledge the guidance and support of the Review Steering Committee, Review Advisory Committee and the Australian Government Attorney-General’s Department.


The Allen Consulting Group v

Contents

Abbreviations vii Executive Summary

Introduction viii Key Review findings viii Short to medium term improvements ix Significant reform options xi Conclusion xii

Chapter 1 Introduction 1

1.1 Review of the National Partnership Agreement on Legal Assistance Services 1

1.2 Legal assistance services 2 1.3 Review scope and approach 4 1.4 This report 5

Chapter 2 Key Review findings and implications 7

2.1 Justification for government intervention in the legal services market, and why reform is needed 9

2.2 Meeting the legal needs of disadvantaged Australians 9 2.3 Key evaluation findings 13 2.4 Funding arrangements 19 2.5 Preventive and early intervention legal assistance services 19 2.6 Key challenges and implications 20

Chapter 3 Short to medium term improvements 22

Key points 22 3.1 Meeting the legal needs of disadvantaged Australians 23 3.2 Service delivery system and institutional arrangements required to

deliver these services 30

Chapter 4 Significant reform opportunities 32

4.1 Client-centred service delivery 33 4.2 Coordinated system governance, planning and funding to support client

centred services 34 4.3 Outcome measures and performance indicators 41 4.4 Increasing participation of the private profession 42


The Allen Consulting Group vi

Chapter 5 Conclusion 43 Glossary 44

References 48


The Allen Consulting Group vii

Abbreviations

AGD Australian Government Attorney-General’s Department

ATSILS Aboriginal and Torres Strait Islander legal services

COAG Council of Australian Governments

FVPLS Family violence prevention legal services

LAASC Legal Assistance Advisory Standing Committee

LAC Legal aid commissions

LAW Survey Legal Australia-Wide Survey: Legal need in Australia

NACLC National Association of Community Legal Centres

NPA National Partnership Agreement on Legal Assistance Services

NSW New South Wales


The Allen Consulting Group viii

Executive Summary

Introduction

The Australian Government funds four programs of legal assistance provided by Aboriginal and Torres Strait Islander legal services (ATSILS), community legal centres, family violence prevention legal services (FVPLS) and legal aid commissions, supported by the private legal profession. The National Partnership Agreement on Legal Assistance Services (the NPA) provides shared objectives, outputs and outcomes for these Commonwealth funded legal assistance services.

The Allen Consulting Group was commissioned by the Australian Government Attorney-General’s Department to review the contribution made by the Commonwealth funded legal assistance services to achievement of objectives and outcomes specified in the NPA. The Review was undertaken from May 2012 to June 2013.

Key Review findings

Service effectiveness, efficiency and quality

Legal assistance service providers are providing services to disadvantaged Australians that are relevant to the needs of this diverse and complex population. However, there are significant levels of unmet demand for legal assistance services, particularly by the most disadvantaged, across a wide range of areas of law and service categories.

There is also scope to improve the coordination of legal and related support services provided to clients with complex needs to reduce the impact that legal problems have on these clients’ lives.

Efficiency of service provision varies across and within service provider types indicating room for improvements in efficiency overall. There is no evidence to suggest, however, that improvements in efficiency would lead to cost savings of sufficient magnitude to meet current shortfalls in demand for services by disadvantaged Australians.

Services are, in the main, of appropriate quality. Some quality concerns were attributed to high caseloads, inexperienced staff, ability to attract and retain staff in regional and remote areas and gaps in quality assurance processes.

Justice system participants generally view efforts made by legal assistance service providers to assist with the earlier resolution of legal problems as effective. However, preventative and early intervention efforts could be more effective with greater local planning and a coordinated approach that made best use of available resources and expertise.


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Funding approach

Current approaches to funding do not support delivery of legal assistance services that could effectively implement policy and priorities set by Commonwealth, state and territory governments. Constraints identified in achieving the NPA objectives related generally to costs of providing legal assistance services, with areas of stress including staffing, changes in demand linked to government policy and provision of services to complex high-need clients, and servicing regional and remote locations. Greater clarity about funding and services to be provided is required. In addition, the various agreements, reporting and funding flows mean that NPA objectives are not always adequately reflected in service delivery, especially for those services not funded under the NPA. This impacts on the provision and management of an integrated legal assistance services sector that is well equipped to meet the legal needs of the most disadvantaged in our community.

The challenge

The broad challenge facing legal assistance service policy and service delivery is how to effectively meet the legal needs of disadvantaged Australians. There are various actions that will support delivery of legal assistance services in a manner that better meets this challenge. While improvements can be made within existing institutional/funding arrangements, securing equitable access to justice for all priority groups and their range of legal problems will require increased resources, as well as significant system reform.

Short to medium term improvements

Short to medium term options that would achieve improvements largely within existing institutional arrangements are described below. These options are framed according to the services required to meet the legal needs of disadvantaged Australians and the service delivery and institutional arrangements needed to deliver these services.

Meeting the legal needs of disadvantaged Australians Greater direction is needed from government about who should receive publicly funded legal assistance services and for what kinds of legal problems. There should be a strengthened client-centred approach that enables consideration of the capability of the person along with the importance/complexity of the legal problem faced. Eligibility for legal assistance, as well as service responses, should focus on mitigating the total impact of legal problems on a person’s life, rather than considering each legal problem separately. Legal assistance services should focus on working with other service providers to incorporate all of a person’s legal, and non-legal, problems. Addressing the perceived impediment of the funding and administrative distinction between Commonwealth and state/territory legal matters would facilitate a shift towards incorporating all of a person’s legal needs. This distinction exists for legal assistance services provided through legal aid commissions.

Establishment of mechanisms to ensure appointment of a legal case manager and/or liaison with an external case manager would improve coordination of services for clients with complex needs and multiple/frequent legal problems. This has the potential to improve individual outcomes, as well as reduce service costs.


The Allen Consulting Group x

Strengthened collaboration with Family Relationship Centres (FRC) should contribute to meeting demand in a consistently high area of need and offers an efficient approach to resource allocation. Approaches could include building on early intervention efforts to provide tailored legal advice to FRC participants, augmenting FRC capacity to manage complex cases involving family violence issues and supporting the development of cultural competencies within FRCs.

Establishment of simple, streamlined, front line interfaces would enhance access to legal help for disadvantaged Australians, as well as reduce any overlap in current front line services.

There is a significant opportunity for adoption and sharing of good practices. Currently there are disparities in adoption of good practices and associated maturity levels across and within Commonwealth funded legal assistance programs. More could be done to build on the sector’s specialist skills, such as those of ATSILS to ensure both legal assistance and related non-legal service providers are able to respond to the complex and diverse needs of disadvantaged groups.

Service delivery system and institutional arrangements A more coordinated approach to commissioning of research is needed to strengthen the evidence base to inform where preventative and early intervention activities can promote the best outcomes. Agreed research priorities coupled with specific accountability for development of a national plan for education and information activities, would significantly increase the impact of resources devoted to this area.

A review of current funding arrangements is needed to improve incentives and the capacity to support service providers to achieve government priorities and objectives. Potential improvements include moving towards specific output targets that are closely tied to policy objectives to ensure services delivered are focused on meeting the legal needs of the most disadvantaged, or introducing activity based funding in conjunction with a funding cap. Activities might be made up of a mix of services and weighted allowing activity targets to be nominated with a view to contributing to national priorities and meeting local needs. This approach could be supplemented with periodic outcome-based evaluation to confirm quality and effective servicing of the target populations.

Separately, the total funding envelope could be indexed using an approach that adequately accounts for cost and demand factors. For this purpose, a composite index tailored to legal assistance services could be developed using a similar approach to that implemented for national hospital funding.


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Significant reform options

A national policy

A more streamlined, formalised and systematic approach to legal assistance service governance, policy and sector planning is proposed. A key element of this approach is the state-wide planning of service priorities and delivery, underpinned by a national legal assistance services strategic plan agreed by all governments. As for similar strategic approaches, such as the National Disability Strategy, this plan would provide a framework for a sector-wide approach to meeting the legal needs of disadvantaged people and to tracking performance and progress on sector reforms and system changes. The plan would provide the umbrella policy for state level implementation plans.

Cost-effective service delivery

There needs to be further investigation into arrangements for more cost-effective service delivery, in particular a collaborative system planning approach that provides flexibility to fund, at efficient prices, existing service infrastructure (including the private profession) to meet service targets and respond to identified service gaps. A state-wide approach to telephone triage of persons seeking legal assistance would assist in more appropriate use of existing resources.

Funding mechanism

Future funding for legal assistance services would benefit from a more direct link to agreed service priorities and sector planning. Funding should cover an agreed level of service delivery as well as providing incentives for reforms to improve service effectiveness and efficiency.

Performance indicators

A national set of indicators with robust and consistent data are needed to determine progress towards national priorities and inform future policy and funding decisions. Refinements to the Review's evaluation framework represent an initial set of national performance indicators for the legal assistance sector. These refinements envisage a national strategic plan for the legal assistance services sector, reinforcing the inclusive nature of the indicators as applicable across the sector. The plan would also give better definition to priority population groups underpinning the change of indicator emphasis from areas of law to meeting the needs of the most disadvantaged. These indicators would be populated by periodic or ongoing qualitative and quantitative data collection and address areas of focus including whether the sector is providing the right services to meet the needs of the most disadvantaged Australians, and providing services effectively, efficiently, in a coordinated and sustainable manner. Data to assess performance against indicators should include average unit costs for service categories, proportion of services delivered to specified client groups and maturity of processes aligned to good practice. Information about performance should be obtained from service providers and assessment of effectiveness and quality should be supported by a periodic survey of employees, clients, non-legal service providers and representatives of the wider justice system.


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Conclusion

Legal assistance service providers are, in the main, providing appropriate quality services to disadvantaged Australians. However, additional steps are required to assist them in continuing to do so to a level that meets the expectation of a civil society in addressing the needs of its most disadvantaged people.


The Allen Consulting Group 1

Chapter 1

Introduction

1.1 Review of the National Partnership Agreement on Legal Assistance Services

The purpose of the Review of the NPA is described in the terms of reference as:

...to assess the progress of parties in achieving the objectives and outputs of the National Partnership Agreement on Legal Assistance Services (NPA) and to establish a robust evidence base for the development of policy and program implementation for legal assistance services across Australia which are efficient and cost effective. (Request for Tender Part 2: Statement of Requirement — Attachment A)

The NPA is an agreement between the Commonwealth and the states and territories under the Council of Australian Governments (COAG). The objective and outcomes of the NPA (see Box 1.1) envisage a national system of legal assistance achieving a set of reforms (outcomes) through action (outputs) taken by legal assistance services collectively and legal aid commissions specifically.

Under the NPA, ‘legal assistance services’ are interpreted as referring to ‘all of the sector-wide legal service providers, including legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and family violence prevention legal services.’ The Review focuses on the four Commonwealth funded programs delivered by these service providers. For the purposes of the Review, this suite of services is referred to as ‘legal assistance services’. The NPA is designed to support a ‘holistic approach’ to reforms by legal assistance services.

Box 1.1 NPA OBJECTIVE AND OUTCOMES

Objective A national system of legal assistance that is integrated, efficient and cost-effective, and focused on providing services for disadvantaged Australians in accordance with access to justice principles of accessibility, appropriateness, equity, efficiency and effectiveness. Outcomes The Agreement will contribute to the following reforms across the legal assistance sector and to successful outcomes to be achieved by legal aid commissions providing efficient and cost-effective legal aid services for disadvantaged Australians in accordance with Commonwealth legal aid service priorities: a) earlier resolution of legal problems for disadvantaged Australians that, when

appropriate, avoids the need for litigation; b) more appropriate targeting of legal assistance services to people who experience,

or are at risk of experiencing, social exclusion; c) increased collaboration and cooperation between legal assistance providers

themselves and with other service providers to ensure clients receive ‘joined up’ service provision to address legal and other problems; and

d) strategic national response to critical challenges and pressures affecting the legal assistance sector.

Source: COAG 2010, p.4



Arrangements for the delivery of services by legal aid commissions are provided for under the NPA while those pertaining to Aboriginal and Torres Strait Islander legal services (ATSILS), community legal centres and family violence prevention legal services (FVPLS) are contained in separate funding agreements. The NPA also provides for the establishment of jurisdictional forums to facilitate improved coordination and targeting of services and a 'National Advisory Body' (the National Legal Assistance Advisory Body) to both inform and be informed by the jurisdictional forums.

1.2 Legal assistance services

As shown in Table 1.1, the four programs vary in their program emphasis, scope of service delivery and Commonwealth funding. Nonetheless, the programs operate under a shared NPA objective and ‘are intended to provide an integrated range of legal assistance services which cover an assortment of needs’ (Review Statement of Requirement). The description provided in Table 1.1 is from the perspective of the Commonwealth’s legal assistance funding program.



Table 1.1 LEGAL ASSISTANCE SERVICES PROGRAM OVERVIEW

NPA OBJECTIVE: a national system of legal assistance that is integrated, efficient and cost-effective, and focused on providing services for disadvantaged Australians in accordance with access to justice principles of

accessibility, appropriateness, equity, efficiency and effectiveness

Program features

Aboriginal and Torres Strait Islander legal services (ATSILS)

Community legal centres

Family violence prevention legal services (FVPLS)

Legal aid commissions

Program name

Indigenous legal assistance and policy

reform program

Commonwealth community legal services program

Family violence prevention legal

services program Legal aid services

Objective To deliver legal assistance and related services to Indigenous Australians

Contribute to access to legal assistance services for vulnerable and disadvantaged members of the community and/or those whose interests should be protected as a matter of public interest

Provide legal services and assistance to Indigenous Australian victims/survivors of family violence or sexual assault

• Provide access to legal assistance for the vulnerable and disadvantaged

• Provide the community with improved access to justice and legal remedies

Commonwealth funding 2011-12

$68.2M

• Funding agreements

$33.7M


$18.5M1


$195.1M

• NPA and funding agreements

Service distribution

8 ATSILS • Majority of outlets in

regional and remote areas

138 community legal centres2 • Outlets predominantly

in metropolitan and regional areas

14 FVPLS • Servicing 31 high need

regional, rural and remote areas

8 legal aid commissions • Metropolitan, regional

and remote services including 70 regional outlets

Target population

Indigenous Australians or a partner or carer of an Indigenous Australian

Those who do not qualify for legal aid focusing on the vulnerable and disadvantaged

Indigenous Australian or a partner or carer of an Indigenous Australian, who is a victim/survivor of family violence or sexual assault, or a child at risk of family violence and in need of protection

Community with focus on vulnerable and disadvantaged people

Main areas of law3

• Predominantly criminal law

• Civil and family law as funds permit

• Predominantly civil and family law issues

• Small amount of criminal law

• Predominantly family law, domestic violence, child protection and injuries compensation

• Predominantly family law

• Some criminal and civil law

Related national policies

• Access to Justice principles

• Closing the Gap • Stronger Futures • National Indigenous

Law and Justice Framework


• Social Inclusion Agenda

• National Plan to Reduce Violence Against Women and their Children

• NPA to Reduce Homelessness


• Closing the Gap • National Indigenous

Law and Justice Framework



• Social Inclusion Agenda


• NPA to Reduce Homelessness

1 Figure does not include EIP (Early Intervention & Prevention) and program support funding. 2 Figure represents Commonwealth funded community legal centres 3 For legal aid commissions, the description relates to services provided under the NPS funding and does not include services provided in

areas of state and territory crime, and care and protection, Source: The Allen Consulting Group adapted from program documentation



Internationally, Australia is perceived as having a relatively strict and targeted legal aid scheme supported by a professional, well organised legal assistance sector. Unlike other countries such as England and Wales, services have remained tightly rationed with a high degree of emphasis on out of court dispute resolution services (DBCDE 2013). In comparison to jurisdictions such as France, there is less reliance on the legal profession to provide below market value legal services to the disadvantaged, which means that access to legal aid is distributed more evenly across the population.

Whilst contracting out of legal services has typically been viewed as synonymous with cost-efficiency, Australia’s per capita spend on legal assistance comes in much lower than countries with contracted out services such as the UK. This is in part a reflection of the extent to which support is available without requiring eligibility checks (Bowles et al 2009). The use of mostly in-house lawyers by legal assistance services also curtails costs. The availability of advice from initial advice through to representation through the one service (for example, legal aid commissions) makes the provision of legal assistance in Australia more ‘holistic’ than in other countries where there is a greater division between the services offering initial advice and those offering specialist advice or representation.

Whilst other countries may provide examples of innovative service delivery, such models are not generally directly applicable to the Australian context given the historical and systemic differences.

1.3 Review scope and approach

The Review was tasked with reporting on:

• aspects of service provision to disadvantaged Australians within and across the four programs in the legal assistance sector and options for more coordinated mechanisms for funding legal assistance services;

• the extent to which legal assistance services address market failures;

• the extent to which reforms under the NPA have been achieved in contributing to earlier resolution of legal problems for disadvantaged Australians, better targeting of services to those experiencing or at risk of experiencing social exclusion, and increased collaboration within and beyond the sector;

• options for better targeted legal assistance services funding arrangements; and

• options for outcome measures and performance indicators relevant to each of the four programs under future funding arrangements.



The Review has drawn on an extensive range of sources that provide qualitative and quantitative information about legal assistance services at a system, program, organisational and client level. This includes stakeholder perspectives and feedback, legal assistance service client feedback, examination of organisational processes and good practices, analysis of administrative data, and analysis of the broader market for legal services and legal assistance services. Extensive engagement was undertaken with legal assistance services and other stakeholders across Australia to inform the overall approach taken by the Review. The Review has also been guided by a steering committee comprised of representatives from the Australian Government Attorney-General’s Department and state and territory justice departments, as well as an advisory committee with representatives drawn from the four legal assistance services, the Law Council of Australia, Public Interest Law Clearing House and Family Relationship Services Australia.

The Review has a number of distinct components. Analysis and findings from each of these components is set out in detail in a set of working papers that accompany this report.

An evaluation framework (working paper one) was developed to collect and assess data regarding the quality, efficiency and cost-effectiveness of ATSILS, community legal centres, FVPLS and legal aid commissions. The resulting analysis is set out in working paper two. This also includes an assessment of underpinning agreements, funding models and governance arrangements. An addendum including suggested refinements resulting from application of the evaluation framework has been included in working paper one.

Analysis of the market for legal services across Australia, including legal assistance services, was also undertaken (working paper three). The analysis included an assessment of the effectiveness of the Commonwealth funded legal assistance services in addressing market failure and opportunities to increase supply of legal services to those who cannot currently afford to access services.

A second element of the Review details progress of the legal aid commissions against the outcomes and objectives of the NPA in a separate Report on legal aid commissions. The report includes analysis of performance against the NPA benchmarks and indicators, and assessment of the adequacy of the NPA documentation, including performance benchmarks and indicators, service priorities and funding arrangements.

1.4 This report

The Review was undertaken from May 2012 to June 2013. This report draws together findings from the components of the Review, identifying implications and challenges facing legal assistance services. Potential options to enhance the existing legal assistance system infrastructure in the short to medium term are identified, together with longer-term options for more significant sector reform.



The remainder of this report is structured as follows.

Chapter 2 provides an overview of key findings from the Review and examines implications and challenges. The findings presented in this chapter are supported by detailed analysis set out in the Review working papers.

Chapter 3 outlines short to medium term reform options, which could be implemented largely within the existing system infrastructure and institutional arrangements.

Chapter 4 canvasses more extensive reform options involving system-wide change.

Chapter 5 provides a brief overview and concluding comments.



Chapter 2

Key Review findings and implications

Key points

Despite significant current government intervention in the provision of legal assistance services, there remains significant unmet legal demand. It is therefore important to examine Review findings with a view to identifying how the effectiveness of current government interventions can be increased.

Key findings

Targeting disadvantaged groups

Legal assistance services were focused on people in the community experiencing one or more forms of disadvantage. The current level of legal assistance however is insufficient to meet demand for certain types of service (such as legal representation services) and legal problems (related to civil law matters) and also affected the level of support able to be provided for people with more complex problems, or linked non-legal problems.

Quality

Services were generally considered to be of a high quality. Some erosion of this standard was occurring, however, attributed to high caseloads, inexperienced staff, difficulties in attracting and retaining staff in regional and remote areas, and gaps in quality assurance processes.

Efficiency

Service efficiency was difficult to gauge for many services due to a lack of adequate baseline data regarding expenditure and costs in relation to service delivery. There was opportunity for innovation and more robust internal processes to ensure service costs are proportionate to the legal matter and that administrative costs are held at an appropriate level.

Effectiveness

A sector-wide contribution to national priorities for legal assistance services required a greater level of sector cohesion and direction. In the first instance this would benefit from reduced Commonwealth and states/territories tensions through a client-focused approach based on joint policy and planning for legal assistance services.

There was evidence of good practices in place to achieve service integration and coordination. This remains an important requirement for effective and efficient service operation. However, there is scope to improve the coordination of legal and related support services provided to clients with complex needs to reduce the impact that legal problems have on these clients’ lives.

Service sustainability was challenged by workforce and skills issues. These included staff skill levels and recruitment and retention issues in regional and remote areas, as well as the ability to outsource work and sustain volunteer effort. Sector collaboration and cooperation was essential to managing these challenges and making the best use of available resources.



Funding approaches

Current approaches to funding do not support delivery of legal assistance services that enables effective implementation of policy and priority set by Commonwealth, state and territory governments. Constraints identified in achieving the NPA objectives related generally to costs of providing legal assistance services, with areas of stress including staffing, changes in demand linked to government policy and provision of services to complex high-need clients, and servicing regional and remote locations. In addition, the various agreements, reporting and funding flows mean that the NPA objectives are not always adequately reflected in service delivery, especially for those services not funded under the NPA. This impacts on the provision and management of an integrated legal assistance services sector that is well equipped to meet the legal needs of the most disadvantaged in our community.

Prevention and early intervention

Preventative and early intervention efforts would be more effective if there were greater local planning and a coordinated approach that made best use of available resources and expertise.

Key implications

The broad challenge facing legal assistance service policy and service delivery is how to effectively meet the legal needs of disadvantaged Australians. The Review findings suggest that, while improvements can be made within existing institutional/funding arrangements, securing equitable access to justice for all priority groups and their range of legal problems will require increased resources, as well as significant system reform.

The challenge of meeting the needs of disadvantaged Australians has a number of layers:

• First, given that resources do not extend to meeting the legal needs of all disadvantaged Australians deciding who is eligible for what kinds of legal services is a key policy question for government.

• Second is the challenge of providing high quality, integrated legal and non-legal support services to individuals most vulnerable to substantial, multiple legal and non-legal problems.

• Third is the issue of how to address the legal needs of those who are not eligible for legal assistance and do not have the capability to help themselves either directly or by purchasing legal help.



2.1 Justification for government intervention in the legal services market, and why reform is needed

Analysis of the legal services market across Australia confirmed that there is a significant gap between the number of people experiencing legal problems and those accessing legal help. While precise quantification of this gap is not possible, the LAW Survey (Coumarelos et al 2012) found that around half of respondents experienced a legal problem over a one-year period, and a majority of these experienced multiple legal problems. Advice from a professional or formal advisor was sought for just over half (51.1 per cent) of problems. While it is not the role of government to ensure that all people who experience a legal problem receive legal help, there are circumstances where government intervention in the legal services market, in the form of government funded provision of legal services, is warranted.

Traditional economic arguments relating to a failure of the market — in this case the legal services market — which results in the allocation of resources in a manner that is inefficient from a societal perspective, justifies government intervention through the provision of legal assistance services. Other reasons for government intervention include social welfare and public good objectives associated with access to justice.

Although evidence suggests much has been achieved in ensuring disadvantaged Australians have access to legal assistance services the continuing presence of unmet demand by the most marginalised, indicates more needs to be done. Questions remain about how to best target services and to maximise client outcomes given current levels of government investment.

A more detailed supply and demand analysis of the legal services market (including the legal assistance services market) and the reasons for government intervention in legal services is available in working paper three.

The remainder of this chapter provides a brief discussion of some of the key Review findings. An exhaustive overview of the Review findings (which are available in the working papers accompanying this report) is not intended. Rather, key overarching findings are drawn out and discussed according to their implications and the key challenges which stem from them to be considered for any future reforms of legal assistance services. This discussion is supported by summarised case study examples provided by legal assistance service providers.

2.2 Meeting the legal needs of disadvantaged Australians

Client pathways

Community members experiencing legal problems can take a variety of pathways (see Figure 2.1) dependent on their capability (including financial capability), their understanding and experience of the law, and the availability of government funded assistance. In conceptualising legal assistance services within these various pathways it is important to consider not only those who are currently accessing legal assistance, but also those who may not be receiving assistance due to a lack of knowledge or otherwise.



Figure 2.1 PATHWAYS FOR COMMUNITY MEMBERS EXPERIENCING LEGAL PROBLEMS

Source: The Allen Consulting Group

Evidence about the actions that people take in response to legal problems suggest that these alternative pathways are important. The LAW Survey (Coumarelos et al 2012) found that no action was taken for 18.3 per cent of legal problems and things were handled without advice 30.6 per cent of the time. Where advice was sought, non-legal advisors were consulted relatively more frequently (69.7 per cent of the time) than legal advisors (30.3 per cent of the time). Government advisors, health or welfare advisors and financial advisors were all frequently consulted, depending on the type of legal problem experienced.

These findings suggest that effectively meeting the legal needs of disadvantaged Australians requires a broader perspective than legal assistance services alone. A system wide perspective should consider how to enable community members to recognise their legal problems and take the most appropriate path. This requires consideration of interactions with private legal advisors, providers of related support services and government advisors.



Linkages between legal and non-legal needs

A system wide perspective also needs to consider linkages between legal and non-legal problems. The LAW Survey (Coumarelos et al 2012) suggested that legal problems tend to cluster, with common groupings including consumer, crime, government and housing; credit/debt, family and money; and employment, health personal injury and rights. In addition, many disadvantaged or socially excluded groups are particularly vulnerable to legal problems, including substantial and multiple legal problems. The LAW Survey identified people with a disability; Aboriginal and Torres Strait Islander peoples; the unemployed; single parents; people living in disadvantaged housing and people whose main income is government payments as particularly vulnerable to legal problems.

These findings demonstrate that legal problems can have impacts on broader life circumstances and act as a trigger for other non-legal problems. An illustrative example of how these issues can play out in practice is given in Box 2.1, which shows the complexity of issues and challenges involved in legal assistance service delivery for a high need victim of family violence.

Box 2.1 CASE STUDY: LEGAL ASSISTANCE SERVICE DELIVERY FOR A HIGH-NEED VICTIM OF FAMILY VIOLENCE

MBN is an Aboriginal woman who lives in a community in East Arnhem land. She has been subjected to violence from her husband for more than 12 years. During the relationship she had four children. She left the community where she lived with her husband during her pregnancy with her fifth child. She went to the clinic to ask for help and was evacuated to regional crisis accommodation. MBN remained in contact with her husband and his family. As a result of this and other factors, MBN’s children were removed from her. Her fifth child was removed after birth. The North Australian Aboriginal Family Violence Legal Service (NAAFVLS) has assisted MBN with legal representation in care matters relating to her children, including linking MBN with local service providers to assist with counselling and are helping her with applications for housing and in applying for a DVO against her husband. MBN does not speak English and has hearing loss and a suspected acquired brain injury, attributed to assaults against her by her partner. MBN lives transiently across two remote communities. Communicating and taking instructions from MBN is achieved with the support of a NAAFVLS Community Legal Worker, a local Aboriginal person who is identified as a community leader, and who is employed to assist NAAFVLS staff meet and communicate with non English speaking Aboriginal clients living in remote areas.

Source: summarised from input provided by North Australian Aboriginal Family Violence Legal Service



These linkages mean that achieving effective outcomes in response to legal issues for the most disadvantaged requires an integrated response to ensure that all determinants of the problem or contributing factors are addressed. This includes integration within legal services as well as between legal services and non-legal services as contributing factors may relate to other legal problems and/or to issues that are the focus of other agency supports. In relation to legal problems, half (49.7 per cent) of respondents to the LAW Survey reported experiencing problems in the 12-month reference period with almost one third (31.3 per cent) of these reporting two or more legal problems (Coumarelos et al 2012 p57). For those experiencing multiple legal problems, there was a tendency for these to occur in clusters such as a combination of consumer, crime, government and housing problems (Coumerelos et al 2012 p164). Just over one quarter (27.2 per cent) of respondents to the LAW Survey rated the worst of their legal problems as having a substantial impact on their lives (Coumarelos et al 2012 p59). The importance of this is highlighted for the most disadvantaged, who may have lower capability for solving their own legal problems and require more intensive support to successfully address their legal issues.

There are also system efficiency ramifications in that mechanisms that help enhance effectiveness of service delivery for the most disadvantaged and long term resolution of outcomes can help to reduce their need for future services. The LAW Survey found that a small proportion of the population (8.8 per cent) account for 64.5 per cent of legal problems experienced (Coumarelos et al 2012 p59). A study undertaken by Legal Aid NSW in 2012 found that, of its 50 most frequent users, almost half had been diagnosed with mental illness, over a third had a cognitive impairment, two thirds had experienced homelessness and three quarters were victims of neglect and violence. These statistics suggest that more intensive assistance for the most disadvantaged may help achieve successful resolution of their legal problems, as well as contribute to long term system sustainability.

The case study set out in Box 2.2 shows that even for a relatively simple legal matter involving outstanding debts, the issues were linked to broader financial and housing issues. In this case, a sustainable solution that provided for the most effective outcome as well as minimising future burden on the legal assistance services system required an assessment of all related issues.



Box 2.2 CASE STUDY: LINKAGES BETWEEN DEBT, HOUSING AND FINANCIAL ISSUES

Client J approached a homeless service in the Riverina for financial assistance and was referred to a Legal Aid NSW solicitor who provided regular outreach services at the Centre. J had outstanding debts with a payday lender, a large utility account that she was unable to pay, and a number of other debts. J sought assistance to pay these debts so that she could afford to pay her rent and therefore remain in her tenancy. The outreach Solicitor obtained documentation from the payday lender and sought to challenge the loan on the basis of maladministration, as it appeared that the client was unable to service the loan at the time of her application. The solicitor negotiated a repayment of $900 of the loan to the client and a release from further obligations under the loan. In relation to the utility debt, the outreach solicitor liaised with the utility provider and had her accepted under their hardship program. The Outreach solicitor also discovered that although the client had been paying some money to the utility company through Centrepay, it was insufficient to cover her usage, which would have resulted in the client incurring another large utility bill. This was adjusted. In relation to her debt for past energy use, the solicitor was negotiating with the utility provider to seek a reduction. In the meantime the client was advised to seek energy financial assistance vouchers from her local charity provider. The client’s case worker at the homeless service also arranged for the client’s home to be assessed under the Home Saving Program to reduce future energy expenditure. The client was also referred to a financial counsellor for advice and support on budgeting. The outcome for this client was substantially reduced overall debt and an improved awareness of how to appropriately budget in the future.

Source: provided by Legal Aid NSW

2.3 Key evaluation findings

Working paper two provides detailed analysis and findings of legal assistance service quality, efficiency and cost-effectiveness. This section sets out a brief overview of the Review’s key evaluation findings against each evaluation question set out in the evaluation framework (working paper one).

For the purposes of the Review, the definition of ‘legal assistance services’ provided in the NPA, which includes the four program types, has been applied in interpreting application of the NPA objectives, outcomes and outputs. The policy imperative and direction provided by these NPA objectives, outcomes and outputs apply to all legal assistance services (also referred to as providers and sector) as well as providing specific direction to legal aid services for Commonwealth funded services provided through legal aid commissions. ATSILS, community legal centres and FVPLS are not funded under the NPA. As a party to the NPA, the Australian Government should require any separate funding agreements with ATSILS, community legal centres and FVPLS for provision of Commonwealth funded services, to be consistent with the policy directions for legal assistance services under the NPA.



Is the legal assistance sector providing the right services to support achievement of the NPA objectives?

The Review found strong indications that current levels of service delivery were not sufficient to support the NPA outcomes and objectives. These service shortages have an impact on achievement of the NPA outcomes, including on early resolution of legal problems. Some service providers were constrained in meeting the needs of clients requiring more intensive assistance, in the form of ongoing task assistance and/or legal representation, or where a range of legal and related support services are appropriate.

Particular service gaps were found for civil law matters, including employment, equal opportunity and discrimination law, migration and refugee law and guardianship law. Analysis conducted by the Review highlighted that civil services make up a relatively small proportion of total services, despite the high frequency of these issues across the community. The Review received submissions from courts, the judiciary and the private profession, which variously described civil law service provision as ‘significantly less than adequate’ and subject to ‘significant gaps.’ Submissions also highlighted that many civil law matters could be resolved earlier if greater levels of assistance were available and that unrepresented parties can use large amounts of court time and resources.

With exception of community legal centres, civil law was not a main area of focus for legal assistance services. Commonwealth funded activity in this area was restricted by scarcity of resources and the need to meet other service priorities, including criminal law and family law matters. For instance, provision of civil law services by ATSILS was limited in order to focus on criminal law matters, whereas legal aid commission services for Commonwealth law matters most frequently focused on family law matters.

This raises a challenge in relation to how to achieve government priorities, including reduced unmet demand by area of law and disadvantaged group, within constrained resources.

The Review found that strategic and operational planning to support achievement of the NPA objectives was not performed by all service providers, and was relatively immature in a number of ATSILS, community legal centres and FVPLS. It is noted that these services are not funded under the NPA. However, examples of very mature processes were reported by some organisations of each legal assistance service provider type, indicating opportunities to share good practice between service providers of the same type.

Is the legal assistance sector providing services to disadvantaged Australians?

The Review found that service providers were focused on delivering legal assistance to disadvantaged groups, and that the bulk of services were delivered to individuals who are experiencing one or more forms of disadvantage.



Despite this focus many stakeholders providing input into the Review expressed concern that disadvantaged individuals were still unable to obtain legal assistance services to meet their needs. These concerns were most prevalent for disadvantaged groups with civil law matters. Certain disadvantaged groups for which service shortages were highlighted included people with a mental illness, people with a disability and people experiencing homelessness.

Processes to target services towards disadvantaged groups were in place across service provider types at varying frequency of adoption and maturity levels. While it is expected and appropriate that not all legal assistance service providers will have processes to target all disadvantaged groups, as a minimum, where services target people experiencing specific disadvantage the processes implemented by the provider should be consistent and implemented in a manner that reflects documented policy. It could be argued that the more targeted a service’s focus is on areas of disadvantage, the more mature its processes need to be for ensuring that quality and effective services are directed to that client group. The highest level of maturity would require documented processes to be fully and consistently implemented, measurement against set goals and a continuous process of review and improvement.

The vast majority of ATSILS, FVPLS and legal aid commissions reported processes in place to direct services to their specific target groups, however there is room to improve the maturity of these processes. A far smaller proportion of community legal centres reported having processes in place to direct services to disadvantaged groups. While this in part reflects variation in target groups and target areas of law across some community legal centres, there was some potential for improved consistency in targeting of services by community legal centres.

Is the legal assistance sector providing services effectively (including of appropriate quality)?

Overall, the Review found that service quality was considered by clients to be high across the four programs. Consistently good feedback from clients commended efforts of organisations and individual staff members across the sector and demonstrated the high value that clients attribute to the legal services provided.

Notwithstanding this, a number of stakeholders in the wider legal system, including courts, judiciary and the private profession, expressed reservations about service quality, citing the inexperience of some legal practitioners and the breadth and volume of work they were required to undertake, particularly in regional and remote locations.



The Review also found some gaps in the consistency and maturity of implementation of quality assurance processes. While overall rates of adoption of processes were high, gaps existed, particularly in relation to comprehensive and accessible file review systems, processes to check advice and casework, procedures to check the accuracy of community legal education materials and email policies. In addition, maturity of quality assurance processes across service types was variable, with legal aid commission processes generally well developed and some room for further development of FVPLS and community legal centre processes. A significant proportion of community legal centres and FVPLS reported their quality assurance processes at a level of maturity where they may be partially or inconsistently implemented. Given the centrality of quality to the provision of legal services, this level of maturity is of concern. This finding, coupled with feedback about quality concerns related to caseloads, raises a key challenge in relation to how to ensure consistent service quality in the face of high demands and clients with complex needs.

The Review also examined cultural competence as an indicator of service quality, drawing on relevant literature that highlights a lack of cultural competence can create access barriers for disadvantaged groups (Curran 2012). While most ATSILS and FVPLS survey respondents indicated they have practices in place to support delivery of culturally competent services to Aboriginal and Torres Strait Islander peoples, responses by community legal centres and legal aid commissions indicate a number of practices that could be adopted to improve the cultural competence of services delivered both to Aboriginal and Torres Strait Islander peoples and to people from culturally and linguistically diverse backgrounds. Areas where the adoption of processes was particularly low included comprehensive cultural competence training on commencing employment, and alternative methods of servicing culturally and linguistically diverse groups.

Is the legal assistance sector providing services efficiently?

The Review found that a large proportion of services were unable to allocate expenditure by service activity, such as the costs associated with provision of dispute resolution. This limits the ability to track changes in efficiency, including tracking changes in expenditure patterns and achievements against cost targets. In the absence of this information, the efficiency analysis undertaken by the Review focused on proportionate expenditure on administration, as well as whether services appropriately control service costs.

This analysis showed that smaller services tend to have a higher proportion of administrative to service delivery costs. While these results suggest that larger organisations have economies of scale, some smaller organisations, particularly community legal centres, use significant amounts of volunteer capacity (an average input per community legal centre of close to two full time staff members), which could contribute to relatively high administration to service delivery expenditure ratio in the absence of assigning a value to volunteer effort.



Processes to ensure costs are proportionate to the legal matter were in place for the vast majority of legal assistance service providers, however, they were relatively immature in a significant proportion of community legal centres and FVPLS. Given the importance of these processes to ensuring appropriate allocation of resources (important for efficiency and effectiveness) and to managing organisational risk, there are opportunities for legal assistance service providers with immature processes to adopt practices in place at other service providers. At least one organisation of each service provider type reported their processes to be at the highest level of maturity, providing opportunity to share good practices.

To what extent does program documentation, including the NPA, assist legal assistance service providers to deliver services in line with the NPA objectives?

The reforms encouraged by the NPA, including a focus on prevention and early intervention and increased collaboration and cooperation, were generally supported throughout the sector. Service provider feedback suggested some positive impacts on service planning and sector-wide collaboration and cooperation.

Overarching constraints identified by service providers in achieving the NPA objectives related to costs, with particular pressure points including staffing, changes in demand linked to government policy and provision of services to complex high-need clients, and servicing regional and remote communities.

The Review identified a number of other issues. A central thread to these issues was that legal assistance services are not effectively operating as an integrated service delivery system. The various agreements, reporting and funding flows currently in place created a disconnect between the NPA objectives and service delivery, particularly for ATSILS, community legal centres and FVPLS which are not funded under the NPA. A divide between Commonwealth and state/territory funding for legal aid commissions and associated divisions between priorities based on whether a legal matter comes within a Commonwealth or state/territory law was seen as problematic, undermining the ability of service providers to work towards delivery of integrated services that address a range of their client’s needs. Finally, a shortage of consistent and meaningful performance indicators and benchmarks across programs impedes evaluation of service delivery.

Jurisdictional legal assistance forums established by the NPA were seen by forum representatives as an important tool to facilitate integration and collaboration. However, opportunities to greater leverage the jurisdictional forums were identified, including mechanisms to share information across jurisdictions and a more formalised role for forums in facilitating achievement of the NPA objectives. Further discussion on the jurisdictional forums is provided in working paper two, chapter 7.



To what extent are legal assistance services provided in an integrated, coordinated manner?

The Review found that most legal assistance services have processes in place to support strong levels of referral activity with providers offering related service supports. The maturity of processes varied considerably across and within service provider types, indicating opportunities for sharing information and experiences in this area. While progress in relation to integrated service delivery was substantial, evidence suggested that integration remains in its infancy and there is room to improve consistency in implementation, as well as how effectively referral arrangements target local needs and conditions.

Few services have processes in place to provide management of individual clients with multiple legal and non-legal needs. Improvements in this area would benefit client outcomes by providing more integrated service delivery, which will be essential for meeting the needs of the most disadvantaged.

To what extent is the legal assistance sector operating in a sustainable manner, with particular emphasis on staffing and collaborative and cooperative effort?

The Review confirmed the challenges associated with recruitment and retention of lawyers in regional and remote areas. These challenges were highlighted by stakeholders during various stages of the Review and reinforced by data showing clear trends towards decreased average tenure for lawyers, social workers, client service officers and administrative officers in regional and remote areas.

Implementation of processes to facilitate coordination and collaboration, and the level of maturity of these processes was low compared to other organisational processes examined by the Review. This points to an area for continuing focus to better understand the opportunities, barriers and incentives to working together and sharing good practices with a view to progressing the NPA objectives and outcomes. Particular opportunities in this regard exist for prevention and early intervention services, where in the absence of collaboration a risk of service overlap and duplication could arise.

In relation to pro bono legal work, which is a factor in service sustainability, the Review found that while currently acting as a valuable input into legal assistance services across Australia, there are limitations on capacity to expand pro bono input. The services demanded and skills needed for effective service delivery to disadvantaged clients do not necessarily match the skills of private legal practitioners, and at times the supervision and training necessary can detract from cost-effectiveness. Moreover, there are limits on the levels of pro bono services that can be reasonably expected from commercial businesses. As put by a submission to the Review from the pro bono practices of Australia’s eight largest law firms, pro bono services ‘cannot come close to filling the access to justice gap which exists in Australia’.



2.4 Funding arrangements

Assessment of funding arrangements for each program, against evaluation criteria focused on appropriateness, efficiency, simplicity and flexibility, identified some issues with current arrangements and areas for improvement.

Although legal aid commission and community legal centre funding is backed by output based targets, funding of ATSILS and FVPLS is not, limiting ability to determine on an ongoing basis whether service providers are delivering value for money. Activity based funding provides an alternative approach that can be informed by service plans and modified by other considerations, as appropriate. There is also scope to improve transparency and equity in funding allocation for community legal centres and FVPLS, which currently may fail to take into account differences in demand levels and costs between regions.

Indexation of funding for legal assistance services is currently based on the Wage Cost Index 1; a weighted index comprising the wage safety net adjustment and the consumer price index. The Review compared the Wage Cost Index to other cost indexes and demand indexes (for example, population growth), finding that indexation is not keeping pace with either unit cost or service demand growth. A composite index specific to legal services could be investigated similar to the approach taken for Commonwealth funding under the National Healthcare Agreement. This would seek to reflect, amongst other things, wages growth in the legal sector more generally and assist in addressing issues of recruitment and retention.

Analyses of funding arrangements for each program is set out in working paper two, chapter 8.

2.5 Preventive and early intervention legal assistance services

Preventative and early intervention legal services have potential to increase community capability and/or mitigate escalation of legal problems, thereby helping reduce demand for legal assistance services. In addition, preventative and early intervention activities can contribute towards alleviating the broader impacts and associated costs of legal problems, which were identified by the LAW Survey as including impacts on health, finances and relationships (Coumarelos et al 2012). Early intervention can take many forms such as a reduction in violence through the FVPLS where legal intervention may be initiated to secure avoidance of violence.

From a population perspective, Box 2.3 provides an example of prevention through assisting communities to impose liquor licensing conditions, thereby building community resilience to alcohol related legal problems. Further case studies and discussion on preventative and early intervention are provided in working paper three, chapter 5.



Box 2.3 CASE STUDY: ATSILS PREVENTION ACTIVITIES

Since 1991, the Aboriginal Legal Rights Movement have assisted Aboriginal and Torres Strait Islander communities who wish to impose liquor licensing conditions that aim to reduce alcohol related violence in their communities. This work started in 1991 with license conditions being imposed on hotels in Nundroo, Nullarbor and Penong to limit take away sales to people resident at, or travelling to, the Yalata community. This has resulted in a significant drop in presentations to the Yalata clinic flowing on from alcohol related violence. This work is continuing as instructed by the community.

Source: provided by the Aboriginal Legal Rights Movement

While stakeholders generally supported the view that legal assistance services were contributing to the earlier resolution of legal problems, the Review found that this contribution is to some extent inhibited by a shortage of mechanisms to systematically identify and address the causes of legal problems. Due to the range of services and government agencies required for a holistic preventative and early intervention response to legal problems a collaborative, multifaceted approach is needed, including a role for government in providing leadership and helping to build the evidence to inform service priorities.

2.6 Key challenges and implications

As noted earlier, it is important to examine the Review findings in the context of their implications for improving government intervention in the provision of legal services. As such, this section discusses some of the challenges and implications arising from the Review findings and identifies broad policy directions to address these challenges.

Box 2.4 provides a brief summary of some of the key challenges and implications from the Review findings presented in this chapter.

Box 2.4 REVIEW FINDINGS: KEY CHALLENGES AND IMPLICATIONS

Achieving government priorities and meeting unmet demand for legal services with limited resources Effectively meeting the legal needs of the most disadvantaged Ensuring access to high quality legal assistance services in regional and remote areas Ensuring consistent service quality in the face of finite resources and clients with complex needs Providing effective coordination for planning and delivering preventative and early intervention services Enhancing the operation of legal assistance services as a system, including through coordination and cooperation between the Commonwealth and states/territories Reducing the unmet demand for legal services by people who do not qualify for government funded legal assistance but cannot afford to purchase legal assistance




These challenges essentially relate to the broad question or challenge of how to meet the legal needs of disadvantaged Australians. The remainder of this report discusses challenges and reform options to address this broad challenge, looking first at how the legal needs of disadvantaged Australians can be met and then examining the service delivery and institutional arrangements, including agreements and funding arrangements, required to achieve this.

First, there is the question of eligibility, that is, deciding who receives which kinds of services. Given that resources do not extend to meeting the legal needs of all disadvantaged Australians this is a key policy question for government. The personal capability to solve legal problems and the impact that failing to address problems can have on life circumstances suggests that questions of eligibility are not fixed and may need to look beyond type of legal matter and, for example, may not be restricted to issues of safety and liberty.

Second is the question of how to provide high quality, integrated legal and non-legal support services to individuals most vulnerable to substantial, multiple legal and non-legal problems. Integrated services are also important for the significant proportion of individuals that seek help from non-legal advisors for ensuring triage to the most appropriate service avenue.

Third is the issue of how to address the legal needs of those who are not eligible for legal assistance and do not have the capability to help themselves either directly or by purchasing legal help.

The remainder of this report examines potential reform options. The next chapter examines short to medium term improvements that can be implemented largely within existing institutional arrangements.

Options to underpin substantial improvements in service planning and delivery are provided in Chapter 4.



Chapter 3

Short to medium term improvements

Key points

Meeting the legal needs of disadvantaged Australians

Greater direction is needed from government about who should receive publicly funded legal assistance services and for what kinds of legal problems. There should be a strengthened client-centred approach that enables consideration of the capability of the person along with the importance/complexity of the legal problem faced.

To effectively meet the legal needs of disadvantaged Australians an integrated response focused on mitigating the total impact of legal problems on a person’s life is needed, rather than considering each legal problem separately. This requires eligibility to shift towards addressing the entirety of a person’s legal needs with less focus on the funding and administrative distinction between Commonwealth and state/territory law matters.

Greater coordination of services for clients with complex needs and multiple/frequent legal problems through case management has potential to improve individual outcomes, as well as reduce service costs. These services should not necessarily be provided by legal assistance service providers. Establishment of mechanisms to ensure appointment of a legal case manager and/or liaison with an external case manager would improve service coordination. Legal assistance services providers should investigate potential processes for the management of the different issues faced by people experiencing multiple or frequent legal problems.

Continued and improved collaboration with Family Relationship Centres to provide community-based family dispute resolution for separating or separated parents has the potential to extend the resources available in an area of high need, provide an appropriate non-legal service setting for a proportion of clients and an efficient approach to resource allocation, and reduce any service overlap. Improved collaboration would also strengthen early intervention efforts.

Service delivery system and institutional arrangements required to deliver these services

Establishment of simple, streamlined front line interfaces would enhance access to legal help for disadvantaged Australians, as well as reduce any overlap in current front line services.

Adoption of good practices and associated maturity levels vary widely across and within Commonwealth funded legal assistance programs. There is a significant opportunity for sharing of and learning from good practices. More could be done to build on the sector’s specialist skills, such as those of ATSILS to ensure both legal assistance and related non-legal service providers are able to respond to the complex and diverse needs of disadvantaged groups.

A more coordinated approach to commissioning of further research is needed to strengthen the evidence base to inform where preventative and early intervention activities can promote the best outcomes. Agreed research priorities coupled with allocation of specific accountability for development of a national plan for education and information activities would significantly increase the effectiveness of resources devoted to this area.



3.1 Meeting the legal needs of disadvantaged Australians

There are three broad potential approaches to better meeting the legal needs of disadvantaged Australians. Unmet legal need can be addressed not only through increased funding, but also through system efficiencies and initiatives to support increased private sector responsiveness. These options are not mutually exclusive or exhaustive. Improvements can be made within the existing funding envelope at both a service provider and system level. The options outlined in this section focus on measures to better target services, remove any service overlap and enhance service effectiveness. However, to better address unmet legal demand, implementation of any options would need to be accompanied by some additional funding.

Deciding who receives what types of services (client centred service delivery)

Improvement option (a) — Increased clarity about who should receive which types of services

There is a need for clarity from government about who should receive government funded legal assistance and for which types of legal problems. This is required as current funding levels are insufficient to meet the total demand for legal assistance from disadvantaged Australians. Moreover, some legal problems (for example, non-payment of a cat registration) are considered of insufficient importance to warrant government funded assistance. A key policy question is which legal services everyone should have access to, as a minimum, when living in a civil society. Greater understanding is also required about which types of preventative and early intervention activities are effective in reducing the demand for legal services, and clarity on whose responsibility it is to fund such activity. As an example, currently there are no limitations on access to some services such as the provision of information and advice.

Figure 3.1 shows a conceptualisation of legal assistance services as a subset of legal services generally. The diagram represents the legal services required by clients of all capabilities (which includes capability to identify and understand they have a legal problem and pay for legal services) facing a wide variety of legal problems. The shaded area represents conceptually, the circumstances in which legal assistance services are provided. The size and shape of the shaded area is determined by eligibility criteria for services — reflecting government policy, which considers both the capability of the individual and the importance and complexity of the legal problem(s) — and by availability of resources to deliver services.

Determining the policies and resourcing, and therefore the eligibility criteria that describes the shape of the shaded area, is a key question for government. Given the finite resources available for legal assistance services, they should not be expended on addressing legal problems that do not meet a threshold level of importance, or provide services to clients who have a high capability to address their legal problems themselves.



Figure 3.1 LEGAL ASSISTANCE SERVICES AS A SUBSET OF LEGAL SERVICES MARKET


Figure 3.2 illustrates the potential impacts of changes to government policy and/or resourcing. If more resources are made available for legal assistance services, then these can be spent to fill service gaps for individuals who, although meeting eligibility criteria, do not currently receive services due to resource constraints (see panel 1) or through a combination of increasing the scope of the types of legal problems for which legal assistance services are provided and providing them to more people (see panel 2). Alternatively, for a given amount of resources devoted to legal assistance services, the scope of services could be reduced while providing them to more people (see panel 3).

Another option is to invest in ways to reduce the need for legal services (and therefore legal assistance services) by providing education and information to assist people to avoid and/or resolve problems themselves, or at least before they escalate to the point of requiring legal assistance. Diagrammatically this is represented by reducing the complexity of the issue through early intervention, or by increasing an individual’s personal capability to address the problem. Government could also look to ways to stimulate a reduction in the cost of legal services so that more people can afford to purchase services themselves.

Panel 4 shows, conceptually, two such strategies to shift people away from where they need legal assistance services — education to increase their capability to address their own problems, even if the complexity of their legal problem is undiminished; and early intervention to reduce the complexity of a legal problem, so that legal assistance services may not be required.



Figure 3.2 REPRIORITISATION OF LEGAL ASSISTANCE SERVICES

1. FILLING SERVICE GAPS 2. INCREASE RESOURCING

3. REPRIORITISATION 4. EDUCATION AND EARLY INTERVENTION


In specifying who should receive which types of legal assistance services, it is essential that consideration be given to both the capability of the person and the importance/complexity of the legal problem(s) being faced, and to the intensity or level of legal assistance services provided, which will vary depending on these factors. Therefore it is not sufficient to define eligibility for services solely on the characteristics and circumstances (capability) of the individual, nor by matter type or area of law. For many of the most disadvantaged Australians it is the multiplicity of legal problems facing them that result in substantial, negative impact on their lives and reinforces their disadvantage.



Detailed specification of who should receive which types of legal assistance services is a matter for governments and is beyond the scope of this Review. As a starting point, however, current policy settings and practice suggest the following groups of disadvantaged Australians should be targeted for assistance:

• children at risk;

• financially disadvantaged people;

• Indigenous people, particularly those who are victims/survivors of family violence, those who are financially disadvantaged and those living in remote communities;

• people facing serious criminal charges; and

• people experiencing or at risk of domestic violence.

Other groups that are of priority to government and experience problems in accessing legal services include:

• homeless people;

• people with a disability; and

• people with a mental illness.

In addition, workforce skills and service planning should have regard for the needs of people from culturally and linguistically diverse backgrounds and those in dispersed locations, especially within these priority groups.

Individuals from these priority groups are likely to require government funded legal assistance services, particularly when they are also experiencing financial disadvantage (which many do).

The types of legal assistance services that are provided should reflect government priorities, but focus resources on legal problems that have a substantial impact on people’s lives. Eligibility for legal assistance service should also involve examination of the total impact of the legal problems being experienced on a person’s life rather than considering each legal problem separately, with the service response addressing as many of the legal problems as is required to diminish the severity of the impact.

These principles mean that some legal assistance service providers may be required to address a wider range of legal problems than they do currently (for example FVPLS services may expand to address a wider range of related civil law matters such as housing and social security), or work closely with other legal assistance service providers who are able to address the broader range of legal problems being experienced by clients. They also suggest less focus on the current distinction between Commonwealth and state or territory law matters, and a greater focus on addressing all of the person’s legal needs.



It is suggested that the Attorney-General’s Department considers working closely with representatives from state and territory governments, and with legal assistance service providers, to agree the eligibility criteria for legal assistance services funded by the Commonwealth. This would enable as uniform an approach to eligibility as is practical, but also take into account the very different local circumstances and demands experienced across Australia.

This approach also acknowledges that the legal practitioners engaged by the legal assistance service providers will be required to exercise judgement regarding the severity of the impact on peoples’ lives that various legal problems will cause and therefore the appropriate level of resourcing provided to assisting the person to address their problems. Such responsibility is appropriate providing appropriate eligibility criteria, service guidelines, quality assurance and processes to ensure proportionate responses to problems are in place.

Improvement option (a) — areas for action

Clear government policy about who should be eligible for which types of legal assistance services.

Eligibility criteria which focus on the impact of the legal problem(s) on an individual’s life, taking into account characteristics of the individual and the legal problem(s).

Less focus on the distinction between Commonwealth and state/territory law matters, and greater focus on addressing the entirety of a person’s legal needs.

Improvement option (b) — More intensive management of people with complex needs experiencing multiple/frequent legal problems

As noted in Chapter 2, a small proportion of the population account for a high proportion of total legal problems. These problems are often complex and intertwined with a range of other legal and non-legal issues. This indicates the need for coordination of legal assistance provided to improve the outcomes achieved, improving effectiveness, and reducing the costs of assisting them.

The Review found that relatively few legal assistance services have processes and practices in place to provide for more intensive case management of individuals with complex needs. It is not assumed that a case manager would necessarily come from the legal assistance service provider, however establishment and utilisation of such a process by legal assistance services, with specific responsibility for coordination of legal services with the case manager, is likely to contribute to better management of people with complex needs experiencing multiple/frequent legal problems.

The key to intensive management of complex clients is about working collaboratively to coordinate and deliver services and to develop and review a plan to meet legal and non-legal needs. This approach is facilitated within FVPLS through non-legal client support officers, usually drawn from the local Indigenous communities being serviced by the FVPLS. Where case management responsibility appropriately rests is dependent on the precise mix of client needs — for some individuals with complex and multiple legal needs a legal case manager would be necessary, while in other cases collaboration with a case manager within a related support service organisation, would be appropriate.



Time would need to be allocated to such coordination activities and, given its importance, should be provided for in funding arrangements.

Improvement option (b) — areas for action

Establishment of processes within legal assistance services to case manage clients with complex needs and/or coordinate legal services with an external case manager, with a view to management of the different issues faced by people experiencing multiple or frequent legal problems.

Specific provision in funding arrangements for case management and coordination activities for clients with complex needs.

Providing integrated, coordinated legal and related support services

Improvement option (c) — Further development of collaboration with Family Relationship Centres (FRCs)

FRCs have been established across Australia to provide community-based family dispute resolution, largely as an alternative to litigation in the management of parenting issues by separating or separated parents. The FRCs provide an alternative dispute resolution mechanism to courts and legal assistance services and the opportunity for early intervention with better outcomes for children through cooperative parenting. Research suggests that there is opportunity for continued and increased collaboration between FRCs and legal assistance services, building on such initiatives as the Legal Assistance Partnerships Program.

This collaboration could assist in raising the profile of FRCs, especially among the most disadvantaged, increasing utilisation of FRC support services through arrangements to facilitate referrals, leveraging from the skills set of FRCs including child-centred practice, and supporting FRCs by providing legal information and advice early in the dispute resolution process. It could also assist in working with FRCs in building cultural competencies and augmenting their capacity to manage clients with more complex issues, especially those with a history of family violence. This arrangement would extend the resources available to the clients of legal assistance services, an efficient approach to resource allocation and avoid service overlap. Improved collaboration would also contribute to meeting demand in a consistently high area of need and strengthen early intervention efforts.

Improvement option (c) — areas for action

Strengthened collaboration with FRCs that builds on early intervention efforts to provide tailored legal advice to FRC participants, augments FRC capacity to manage complex cases involving family violence issues and supports the development of cultural competencies within FRCs.

Improvement option (d) — Streamlining of front line interfaces and triage arrangements

Disadvantaged people requiring legal assistance seek help in a variety of ways, while some do not seek help for reasons including lack of recognition that they are experiencing a legal problem and lack of knowledge about how to access help. Streamlining front line interface arrangements would remove service overlap, thus enhancing efficiency, as well as increasing the effectiveness of front line services for clients.



Establishment of state-based front line interfaces between eligible people requiring legal help (including those assisting them) and organisations able to provide such help would enable a simpler message to be disseminated throughout the community and strengthen the community profile of legal assistance services. There are various models that may be adopted to provide such an interface, encompassing website, telephone service and hard copy information channels. Many legal assistance service providers offer such services. There is scope to consolidate the multiplicity of websites and telephone services aimed at providing front line services along the lines of the Law Access NSW service. This type of service is well placed to provide triage services for legal assistance within the relevant state or territory.

Establishment of streamlined front line interfaces and triage services do not replace the need for face-to-face services (including outreach services) that specifically target the most disadvantaged in the community, recognising that many of the most disadvantaged do not have the personal circumstances that support effective use of internet based, telephone or hard copy information. Design of services to meet the needs of the disadvantaged Australians should take into account results of the Legal Australia-Wide Survey: legal Need in Australia, Access to Justice and Legal Needs (the LAW Survey) (Coumarelos et al 2012) that provides important evidence about how the community experiences and responds to legal problems.

Notwithstanding any benefit to be gained from increased use of technology in improving access to justice, there are also limitations to how far technology can assist an individual to resolve a legal matter. For many, professional assistance will still be required, particularly where the matters involved are complicated or the application of the law to a particular problem proves difficult.

Improvement option (d) — areas for action

Establishment of simple state-based front line interfaces to streamline access to legal assistance services for disadvantaged Australians.

Maintenance of face-to-face services (including outreach services) to target disadvantaged individuals unable to access internet or telephone based services.

Improvement option (e) — Adoption and sharing of good practices

The Review found wide variety in reporting of the presence of good practices and the maturity of associated processes both across and within the four Commonwealth funded legal assistance programs. Service providers which identified that they have good practices in place at a high level of maturity, meaning that goals associated with the process are set, data analysed and improvements routinely integrated and evaluated, sat alongside service providers with less mature processes, or without any processes implemented.

This indicates significant opportunity for adoption and sharing of good practice, which, in most instances could facilitate service delivery improvements within the existing funding envelope. Specialist skills exist among legal assistance services, such as the knowledge amongst ATSILS relating to culturally competent services that are highly relevant across services. In addition, the Review notes that ongoing implementation of the National Association of Community Legal Centres’ (NACLC) national accreditation scheme for community legal centres is assisting with adoption and sharing of good practices across community legal centres.



Specific areas where benefits could be gained from greater adoption and sharing of good practice, drawing on the findings outlined in section 2.3, are:

• strategic and operational planning;

• processes to ensure services are directed to disadvantaged groups;

• practices to support delivery of culturally competent services;

• quality assurance processes are in place across all legal assistance service provider types;

• processes to ensure costs are proportionate to the legal matter;

• referral processes; and

• processes to facilitate collaboration and cooperation.

Improvement option (e) — areas for action

Implementation of mechanisms to facilitate adoption and sharing of good practices, building on current industry good practice sharing initiatives such as the NACLC accreditation scheme.

3.2 Service delivery system and institutional arrangements required to deliver these services

Agreements and plans

Improvement option (f) — National plan for education and information combined with local response and delivery

Increased effort has been directed to education and information activities as a result of the NPA’s focus on prevention and early intervention. While stakeholder feedback gathered during the conduct of this Review supported the conclusion that such efforts were leading to earlier resolution of legal problems, there were limited data available regarding this. There is opportunity to significantly increase the impact of resources devoted to planning, development and delivery of education and information activities.

There is a need for a more coordinated approach to commissioning research to determine which types of preventative and early intervention activities lead to behaviour change and to reduction in legal problems and earlier resolution of those that develop. This approach has been implemented for evaluation of Indigenous law and justice programs under the National Indigenous Law and Justice Framework and includes best practice examples of diversion programs and night and community patrols. Combined with this approach should be analysis of relevant data sets to determine emerging trends in demand for legal assistance service — including information passed on by legal assistance service providers — to ensure changes in demand are reflected in education and information activities where appropriate.



There is also a need for government to allocate responsibility for educating the community in general as well as specific groups within the community about legal issues. Research should inform the approach taken to education and information activities including the groups targeted, the content of activities, timing of activities particularly with respect to the stage in an individual’s life and relationship to when a legal problem is experienced, and the mechanisms through which education and information are delivered.

Specific accountability should be assigned for development of a national plan for education and information activities, for production and maintenance of high quality materials, and for their delivery. Accountability for these steps is unlikely to rest with a single organisation, rather a coordinated effort should lift quality of outputs and reduce unnecessary overlap. The plan should provide for flexibility in delivery at the local level to support appropriate delivery to meet the needs of local communities.

Improvement option (f) — areas for action

A more coordinated approach to research to provide evidence about areas where education and information activity can have the greatest impact on preventing and/or contributing towards earlier resolution of legal problems.

Development of a national plan for education and information activity, allocating specific areas of priority and service delivery responsibility.

Funding arrangements

Improvement option (g) — Updating of funding arrangements

The analysis of current funding arrangements provided in working paper two (chapter 8), and discussed briefly in section 2.4, identified that there are opportunities to improve funding arrangements for legal assistance services. Some opportunities involve significant change to existing arrangements and these are considered in the following chapter. A number of changes can be achieved with less significant change to institutional arrangements, namely:

• adoption of an approach to indexation that accounts for population growth in addition to unit cost factors;

• taking a more systematic view when allocating funding to specific legal assistance service providers that better reflects demand for services and availability of alternative suppliers in specific locations rather than relying on historical allocations. In particular, the current approaches to funding community legal centres does not address demand levels or cost differentials in a systematic manner;

• move funding of ATSILS and FVPLS towards output or activity based targets; and

• more closely tie output targets, and therefore funding, to policy objectives to ensure services delivered are focused on meeting the legal needs of the most disadvantaged Australians.

Improvement option (g) — areas for action

A review of current funding arrangements to provide appropriate indexation, as well as moving towards targets that tie funding to desired policy objectives.



Chapter 4

Significant reform opportunities

Key points

Coordinated system governance, planning and funding to facilitate client centred service delivery

A more streamlined, formalised and systematic approach to legal assistance service governance, policy and sector planning is proposed. A key element of this approach is the state-wide planning of service priorities and delivery.

A national legal assistance services strategic plan agreed by all governments would provide the underpinning framework for a sector-wide approach to meeting the legal needs of disadvantaged people and to track performance and progress on sector reforms. The plan should also provide the umbrella policy for state/territory level implementation plans.

Cost-effective arrangements for service delivery should be investigated further. Specific areas include a state-wide approach to telephone triage of persons seeking legal assistance and a collaborative system planning approach that provides flexibility to fund, at efficient prices, existing service infrastructure to meet service targets and respond to identified service gaps.

Future funding for legal assistance services would benefit from a more direct link to agreed service priorities and sector planning. Funding should cover an agreed level of service delivery as well as providing incentives for reforms to improve service effectiveness and efficiency.

Options for outcome measures and performance indicators

A national set of indicators with robust and consistent data are necessary to determine progress towards national priorities and inform future policy and funding decisions. Refinements made to the Review's evaluation framework present an initial set of national performance indicators for the legal assistance sector.

Increasing participation of the private profession

A sustainable reduction in the level of unmet legal need could be achieved by greater involvement of the private legal profession on commercially acceptable terms. This could be encouraged through mechanisms such as service delivery incentives and changes to regulatory arrangements.



4.1 Client-centred service delivery

Sections 2.2 and 3.1 provided discussion about how effective legal assistance service delivery for the most disadvantaged Australians needs to focus on the totality of each client’s needs, with eligibility criteria taking into account the needs and characteristics of the individual, as well as the type of legal problem(s) involved. This section goes a step beyond this, examining what significant changes to the service delivery network would be required to achieve an effective shift in service delivery focus from type of legal problem to the capability of the person and strategic approaches suitable for differing levels of capability.

In some instances, targeting services according to the individual’s capability could potentially improve capacity to address unmet demand by, for example, improving capability for self-help. Further discussion and information about these strategies is available in working paper three, chapter 5.

For clients with higher levels of needs, an effective client centred approach would have implications for where and how service delivery occurs. Ensuring access to services for the most disadvantaged groups requires different strategies that effectively take the service to the person, whether in co-located facilities, in joint service programs or locations where the person can be accessed such as homeless shelters or remote communities. A current initiative of the Aboriginal Legal Service of Western Australia (ALSWA) provides an example of leadership in improving outcomes for clients. ALSWA is working with the community, service providers and local funding sources to construct a Multipurpose Centre in Kalgoorlie for Aboriginal community groups in the area. The Centre will be a culturally relevant space that will provide a ‘wraparound service’ to ALSWA clients and their families.

To better support an integrated approach, funding to address the legal needs of the most disadvantaged (regardless of problem type) would need to include coordination with providers of support services for eligible persons presenting frequently. In addition, funding should focus on the person rather than type of law matter, which means that the current funding divide for legal aid commissions between Commonwealth and state/territory law matters, as a barrier to a client centred approach, should be addressed.

Legal problems associated with those facing financial difficulties, including housing, homelessness, social security can have significant implications for a person’s ability to access basic needs. Addressing these ‘poverty law’ issues require an understanding of the underlying issues and often a greater level of support is needed. A client focus should be supported by development of poverty law as a recognised specialisation/skill set.

Client-centred service delivery — areas for action

Funding focused on the person and the totality of their legal needs, including overcoming barriers associated with funding based on type of law matter, and case management/coordination for clients with complex or multiple/frequent issues.

Development of poverty law as a recognised specialisation or skill set.



4.2 Coordinated system governance, planning and funding to support client centred services

The client centred service approach discussed in section 4.1 would need to be supported through significant changes to how legal assistance services are currently planned, delivered and funded. This section discusses implications for system governance, drawing on two key overarching design principles needed to support an integrated, client centred service approach.

Design principles

1. Service priorities and eligibility criteria that consider the characteristics of the person, as well as the legal problem(s).

2. Coherent system design and structure, encompassing coordinated mechanisms to determine what services are needed and what providers are best placed to service those needs.

The fundamental requirement is determining the specific roles of service providers, and how an integrated approach is supported through contractual and funding arrangements. This would occur through a number of system layers, commencing with policy and priority setting, flowing down to system planning and through to service delivery (see Figure 4.1 below).



Figure 4.1 LEGAL ASSISTANCE SERVICE SYSTEM GOVERNANCE




Policy and priority setting

The proposed governance arrangement for legal assistance services emphasises the joint responsibility of governments and the ongoing need to develop innovative, effective and efficient services to ensure a fair and accessible justice system.

A Legal Assistance Advisory Standing Committee (LAASC) comprised of senior officials from Commonwealth, state and territory governments with the option for inclusion of client representation, would provide advice to the existing senior officials committee (NJ CEOs Group) reporting to the Ministerial forum; the Standing Council on Law and Justice. Working groups convened on an as required basis would provide technical advice to the standing committee on a range of matters to build the evidence base for policy decisions and effective policy implementation. The working groups would draw on a range of experts from government, non-government, sector and system representative bodies and academia.

Underpinning frameworks and agreements

A key role of the LAASC would be to develop a national legal assistance service strategic plan. This plan, which would draw on input from working groups, and legal assistance service providers more widely through information fed up from the system planning level, would focus on strengthening sector collaboration and coordination, as well as providing a strategic, holistic approach to meeting the legal needs of disadvantaged Australians. The plan, to be approved by the Standing Council on Law and Justice, would clearly specify:

• overarching objectives and outcomes;

• roles and responsibilities of the Commonwealth, states and territories and, through governments as appropriate, service providers (including the private profession);

• policies and priorities on who should receive services, and what types of services they should receive, providing high level direction to services and informed by input from services through governments; and

• reform directions.

The strategic plan would inform an intergovernmental agreement, which would give effect to recurrent policies and priorities and outline the way in which the strategic plan would be actioned, supported by state/territory based plans (see below for further details). The intergovernmental agreement would include sector funding arrangements and set national service outputs and targets, as well as evaluation and performance measures. Scope would also exist to progress reform through a separate supplementary agreement providing additional funding and/or incentives to support achievement of specified reform priorities (for example, greater preventative and early intervention services, support for improved outcomes relaying to litigation services). This provides a level of resource transparency and focus for change.



Pooled Commonwealth and state/territory funding

The recommended client centred approach, and the associated shift away from a focus on the type of legal problem towards the totality of an individual’s characteristics and legal problems, have important implications for the structure of Commonwealth and state/territory funding. The current division between funding for Commonwealth and state/territory law matters for legal aid commissions would need to be addressed, as well as the divide between Commonwealth and state/territory funding for community legal centres.

As such, Commonwealth and state/territory funding would need to be pooled, with contributions made on a proportionate basis. The Commonwealth contribution might have regard for the existing level of funding, a matched arrangement, analysis of legal problems and/or the proportion of people in a particular priority population group. Separate funding could also be provided for specific reform priorities if required.

The extent to which Commonwealth funds are tied to Commonwealth matters under current arrangements involves about 80 per cent of funding for legal aid commissions (based on 2011-12 national expenditure, see working paper two, appendix D), although representing a significantly smaller proportion of activity. As funding for legal aid commissions represents about 62 per cent of Commonwealth funding for legal assistance services (see Table 1.1), approximately half of total Commonwealth funding is tied to Commonwealth matters. This estimate does not take account of the flexibility to address family law matters in conjunction with presenting State law matters relating to family violence and child protection. Family law is a dominant area of law for legal aid commissions. If it is a requirement that a proportion of Commonwealth funding continues to be tied to Commonwealth matters, this reinforces the importance of transparency in pooled arrangements through a better understanding of the presenting needs of clients (the level and nature of demand) and service planning at regional and state levels (setting service priorities). The administrative requirement to account for expenditure on Commonwealth matters should not present a barrier in practice to service planning that adopts a client-centred focus.

Funding allocation approaches

Funding allocation for legal assistance services could be output based, block based, or some combination. A brief description of these approaches, which could apply to recurrent funding as well as funding tied to reform incentives, is provided in Box 4.1.



Box 4.1 POTENTIAL FUNDING ALLOCATION APPROACHES

Output based funding (case payment) — involves ascertaining efficient prices of specified services, incorporating a loading or weighting for certain population groups and service locations. Funding provided by the Commonwealth/states/territories would be tied to the cost of delivering a certain number of services. Block funding — allocation of a block of funding, based on the level of expected activity and/or the estimated need for services in a particular area. Combined block and output based funding — output based funding operating in combination with a block grant. For example, a specified block amount could be allocated to a service provider to cover fixed costs such as rent, the cost of a solicitor and an administrator. Once the level of service activity exceeded a certain point additional funding would be attracted on an output based process.


Analysis of current funding arrangements undertaken as part of the Review (see working paper two, chapter 8) found that there are opportunities, in line with current direction in public sector management, to move towards output based targets and/or funding. An important element of the proposed output based funding approach is inclusion of additional loadings or weightings for certain population groups and/or locations. This would ensure appropriate incentives for targeting service delivery to eligible groups and support a client centred approach by covering the costs of managing clients with complex, multiple needs (including case management).

In considering specific funding approaches it is also important to consider the administrative implications, as well as implications in very small markets, or markets where there may be a shortage of legal service providers. Where service gaps are identified in priority areas, or if service delivery would not be viable based on output based funding alone, a component of block funding may be necessary. For example, block funding is likely to be necessary to provide for specialist, low volume services such as FVPLS, or services in regional and remote areas, at least on an interim basis until services become established in their communities.

A pre-requisite to successful implementation of output based funding is robust data about service costs, including any additional costs involved in servicing particular client groups. Such data do not presently exist so that introduction of output based funding is a long-term option, which needs to be accompanied by improvements in information about service costs.

System planning

Giving effect to system planning requires responsibility at state/territory level for service planning (building on current jurisdictional forums) to reduce overlap, ensure effective use of resources and reduce service gaps (see Figure 4.1).



These planning forums, which would include representatives from legal assistance services, related support service providers and representatives from the Australian Government Attorney-General’s Department and state/territory justice departments would have a core role of developing state/territory service plans to support achievement of state/territory targets specified in the national strategic plan. This would involve setting regional targets, as well as assessing regional performance. In larger states and territories there would also be opportunity to further support achievement of regional targets through regional planning forums.

System planning at the state/territory and/or regional level also provides an important opportunity to identify and highlight gaps in the service delivery system, as well as emerging trends in demand for legal assistance services to inform policy and priority setting.

Structure of the service delivery network

The proposed system would draw on service providers currently funded under the four legal assistance programs: ATSILS, community legal centres, FVPLS and legal aid commissions. The current network involves significant system infrastructure, and drawing on these existing arrangements would enable the service delivery network to harness existing sector knowledge, networks, good practices and efficiencies.

There would, however, be a fundamental shift in how organisations involved in the service delivery network are managed and funded, with a focus on planning and managing service providers as a coherent system of service delivery. Some current distinctions between the four programs may need to be removed, as well as the divide between Commonwealth/state law matters. Instead, the service delivery network would be drawn together through a client centred national legal assistance service program, underpinned by the policies and priorities set out in the strategic plan and intergovernmental agreement.

Steps illustrating how service providers could be selected, funded and monitored are summarised in Box 4.2 below.



Box 4.2 OVERVIEW OF ARRANGEMENTS FOR SERVICE PROVIDER SELECTION, FUNDING AND REPORTING

1. State and territory performance targets to meet the policies and service priorities set out in the strategic plan set by the LAASC.

2. Regional targets to support the state and territory performance targets set by state/territory planning forums.

3. Regional planning forums take a collaborative approach to determining which service provider organisations are best placed to provide services to meet specified targets. Provision for intervention of state/territory planning forums in decision making where collaborative agreement is not reached.

4. Specification of which services providers are responsible for which services made through regional and state/territory plans and reviewed/approved by the LAASC.

5. Funding provided to service provider organisations through an agreement between the Commonwealth, state or territory and service provider organisation.

6. Performance against service targets compiled by state/territory planning forum, and submitted to the LAASC through a government report on state/territory performance.


Delivery of particular types of services would not necessarily be restricted to service providers operating under current legal assistance service programs. For example, an organisation currently delivering services under the Community Legal Services Program could branch into services previously provided by a legal aid commission or an FVPLS. Importantly, funding service delivery on the basis of an efficient price would provide incentives for the delivery of efficient services and encourage the allocation of legal assistance resources to their highest value use.

This structure also has potential to encourage greater involvement from the private profession. However, it should be noted that decisions about which organisations provide services would also take into account pre-existing factors, such as reputation or relationships with the community, which may better place some organisations to deliver certain services.

In areas where a serious shortage of service providers is present (i.e. thin markets) legal aid commissions could act (and would need to be funded appropriately) to ensure access to services. Meeting this requirement might occur in collaboration with other service providers such as ATSILS, depending on the location.

Decisions about which service providers would deliver what services in particular areas would take place at the state/regional system planning level. This would encourage collaboration and cooperation in meeting service targets and encourage system efficiencies. However, if collaborative agreement could not be reached provision could also be introduced for decisions to be made by state/territory planning forums based on a competitive assessment.

State/territory legal assistance service plans would include specification about which service providers will deliver the services needed to meet state/territory targets, which would be reviewed and approved by the LAASC. Once approved, individual funding agreements would be made between the Commonwealth, state or territory and service provider organisations, providing for output based and/or block funding to provide the agreed services.



Coordinated system governance and planning — key action areas

Establish a mechanism for joint government system planning and funding.

Develop and oversee a national legal assistance service strategic plan that includes performance indicators and targets and is given effect by intergovernmental agreement(s).

Respective jurisdictions to agree state/territory level performance targets.

Develop, monitor and report achievement against state/territory and regional plans through respective state/territory governments.

Increase flexibility of services delivered through the four existing legal assistance programs.

Allocate funds on an output or activity based approach supplemented by block funding in very thin markets.

Provide Commonwealth and state/territory funding on an agreed proportionate basis.

4.3 Outcome measures and performance indicators

A consistent set of agreed national indicators for legal assistance services would better reflect the contribution of all parts of the Commonwealth and state/territory funded legal assistance services. National indicators would also reinforce service priorities and guide allocation of resources. These would replace the performance monitoring arrangements currently in place for each program.

The required data and frequency of data collection, covering who receives services and how much it costs to provide these services, should be informed by the findings of the Review and the refined set of indicators and data points (see working paper one, addendum). The refined evaluation framework envisages the need for regular collection of some information, drawing from existing service provider administrative data, augmented by periodic collection of new data from key stakeholders. Data should support accountability to governments and the public, tracking of performance, understanding the costs of service delivery and inform good practice. This will require improved definition around specified groups of disadvantaged Australians, determination of average unit costs for service categories and systematic input from employees, clients, non-legal service providers and the wider justice system.

Performance benchmarks would be aligned to national policy objectives and indicators. They would specify the direction and size of change to be achieved (for example, see the Review's legal aid commission report, Table 12.2). Arrangements with each state and territory would agree the effort required by that jurisdiction having regard for their performance at an agreed point in time (baseline).

Robust data will be key to tracking the achievements of legal assistance services and highlighting continuing and emerging challenges. Agreement to development of national indicators should include a plan for implementation that builds, for example, on the work of the National Legal Assistance Data Working Group, and appropriate resources.



Outcome measures and performance indicators — key action areas

Establish a set of national, agreed performance indicators applicable across legal assistance services, drawing on the evaluation framework developed and refined as part of the Review. These indicators would be populated by periodic or ongoing qualitative and quantitative data collection and address areas of focus including whether the sector is providing the right services to meet the needs of the most disadvantaged Australians, and providing services effectively, efficiently, in a coordinated and sustainable manner.

4.4 Increasing participation of the private profession

Higher levels of participation from the private legal profession would assist in meeting the unmet legal needs of disadvantaged Australians. Pro bono efforts of legal practitioners, as well as reduced fee legal work, are providing a valuable input, however there are limits to the discretionary capacity of the profession and the level of pro bono effort that can reasonably be relied upon. Increased participation of the private legal profession therefore needs to extend to ways to encourage service provision on commercially acceptable terms.

The scarcity of available services in some regional and remote areas, as well as the expertise required to deliver the kinds of legal services needed to meet the needs of disadvantaged Australians, means that increased participation from the private sector will require measures such as incentives, removal of regulatory barriers and the availability of funding that enables private sector service provision. If there is sufficient funding made available to the private profession in regional and remote areas they are more likely to provide services where they currently do not. The service delivery structure outlined in section 4.2 could help facilitate this, by providing funding at an efficient price and flexibility for different providers to enter the legal assistance services market.

Increasing participation of the private sector — key action areas

Encouraging increased participation of the private sector through mechanisms such as service delivery incentives and the removal of regulatory barriers.



Chapter 5

Conclusion

The existing legal assistance service infrastructure is increasingly focused on earlier resolution of legal problems and is providing a significant level of service delivery to disadvantaged Australians. This is especially notable in the context of high levels of demand, limited resources and clients who often have complex, entrenched and overlapping legal and non-legal needs.

There is however unmet demand for legal assistance services and the findings of this Review suggest that legal assistance service providers will continue to be challenged to achieve government priorities and meet demand within existing resources. Particular challenges exist for providing accessible and effective services for some of the most disadvantaged Australians, including those with complex needs and those located in regional and remote areas. The difficulties involved in meeting these service demands are compounded by a need to ensure a consistently high level of service quality, as well as coordinate service priorities, planning and funding between the Commonwealth and states/territories.

The linkages between legal problems and other areas of government priority, including reducing Aboriginal and Torres Strait Islander disadvantage, reducing homelessness, reducing violence against women and children and social inclusion, mean that positioning legal assistance services to meet these challenges is a key concern for government.

There are a number of short to medium term options largely within existing institutional and governance arrangements, which could be implemented to help address some of these challenges. Improved specification about who should receive what kind of legal services would help ensure achievement of government priorities. Other options include improvements to front line interfaces and triage arrangements, mechanisms to encourage adoption and sharing of good practices across legal assistance services and more intensive management and coordination of services for clients with complex needs and multiple/frequent issues.

Deeper, system wide reform is required to provide an optimal service configuration to sustainably address the challenges identified by the Review. Shifting service delivery and funding away from the government jurisdiction of the legal problem to centre on the totality of the needs of each client would better support a focus on achieving effective client outcomes. Service efficiency and cost-effectiveness could be improved by coordinating and streamlining how legal assistance services are governed, planned, funded and delivered, underpinned by a national strategic plan providing for joint responsibility and accountability of governments.



Glossary

Civil law

Problems requiring resolution under Commonwealth and state civil law, including: • Employment • Social security • Veterans entitlements • Proceeds of crime • Consumer/credit and debt • Housing • Rights (discrimination, mental health law and guardianship for adults) • Immigration law • Environment • Wills and estates • Neighbourhood disputes • Health • Other civil law

Community education

Community education informs and builds individual and community resilience by enhancing awareness and understanding about the law and how to prevent and deal with problems and awareness of the help available from legal and support services. These services are provided to the general community and groups within the community and are not targeted to individual needs.

Cost-effectiveness Measures how well expenditure on inputs (such as employees, cars and computers) are converted into outcomes for individual clients or the community. Cost-effectiveness may be expressed as a ratio of inputs to outcomes.

Criminal law

Problems where the client is charged with or at risk of being charged with an offence under Commonwealth or state criminal law. These include: • Homicide and related offences • Acts intended to cause injury • Sexual assault and related offences • Dangerous or negligent acts endangering persons • Abduction, harassment and other offences against the person • Robbery, extortion and related offences • Unlawful entry with intent/burglary, break and enter • Theft and related offences • Fraud, deception and related offences • Illicit drug offences • Prohibited and regulated weapons and explosives offences • Property damage and environmental pollution • Public order offences • Traffic and vehicle regulatory offences • Offences against government procedures, government security and government operations • Miscellaneous offences

Commonwealth legal aid service priorities

General principles and priorities outlined in Schedule A of the National Partnership Agreement on Legal Assistance Services to provide guidance about the types of legal matters that should attract Commonwealth funded legal services.



Culturally competent practices

Culturally competent practices are defined for the purposes of this Review to include: • Employment of people from Aboriginal or Torres Strait Islander backgrounds • Employment of people from culturally and linguistically diverse backgrounds • Comprehensive cultural competence training for staff on commencing employment • Ongoing opportunities for staff to develop their skills in delivering culturally competent services • Staff have ready access to information on providing services in a culturally competent manner • Strategies to welcome, communicate, engage and support Aboriginal and Torres Strait Islander

peoples • A current directory of Aboriginal and Torres Strait Islander organisations and services, used for

referrals and to provide information to clients • There is a current directory of organisations and services relevant for people from culturally and

linguistically diverse backgrounds, and this is used for referrals and to provide information to clients

• Translators and interpreters are routinely offered to people from Aboriginal or Torres Strait Islander backgrounds who wish to access services

• Translators and interpreters are routinely offered to people from culturally and linguistically diverse backgrounds who wish to access services

• All forms are written using plain English • Assistance is always offered when people from Aboriginal or Torres Strait Islander backgrounds

are asked to fill out a form • Assistance is always offered when people from culturally and linguistically diverse backgrounds

are asked to fill out a form • Alternative methods of providing services to Aboriginal and Torres Strait Islander peoples,

including out-posting workers to appropriate locations and outreach services • Alternative methods of providing services to people from culturally and linguistically diverse

backgrounds, including out-posting workers to appropriate locations and outreach services • Established policies and processes to establish and maintain linkages with Aboriginal and Torres

Strait Islander organisations and services • Established policies and processes to establish and maintain linkages with organisations and

services that specifically target assisting people from culturally and linguistically diverse backgrounds

Disadvantaged groups

Disadvantaged groups are defined for the purposes of this Review to include: • Aboriginal and Torres Strait Islander peoples • Financially disadvantaged people • Homeless people or people at risk of homelessness • People experiencing or at risk of family violence (including children) • People from culturally and linguistically diverse backgrounds • People living in remote areas • People with a disability • People with a mental illness • People in custody

Discrete task assistance

Discrete task assistance is the provision of advice and/or task assistance to a client in relation to a specific problem. These services may be provided at any location, including at a court or tribunal by a duty lawyer. An advice service is the provision of fact specific advice to a client in response to their request for assistance to resolve specific problems. The advice service may be legal or non legal. Task assistance is where the service provider completes a task or series of tasks, other than advice, to assist the client to resolve a problem or a particular stage of a problem. Task assistance may be legal or non-legal.

Dispute resolution Dispute resolution services involve the provision of a dispute resolution process for parties in dispute. It may involve a dispute resolution conference or arbitration.

Duty lawyer services

Advice and/or representation services provided at a court or tribunal where a court event or tribunal hearing is imminent, other than services, which are subject to a grant of legal aid.



Early intervention services

Legal services provided by legal aid commissions to assist people to resolve their legal problem before it escalates, such as legal advice, minor assistance and advocacy other than advocacy provided under a grant of legal assistance.

Efficiency Reflects how resources (inputs) are used to produce outputs and outcomes, often expressed as a ratio of outputs to inputs (technical efficiency), or inputs to outcomes (cost-effectiveness).

Family law

A legal area that deals with disputes in domestic relationships (married or de facto), as well as the welfare of children and issues of property when a relationship breaks down, including: • Parenting arrangements • Child support • Family law property • Divorce and annulment • Other family law • Domestic violence • Child protection

Information Information is the provision of generic information to individuals in response to their request or inquiry. These services may be provided at any location, including at a court or tribunal by a duty lawyer.

Legal advice Legal advice includes services that provide fact specific advice where the provider gives specific legal advice in relation to a person’s individual circumstances and analyses the options available to that person to resolve his or her legal matter.

Legal assistance services

Legal assistance services include services provided by all of the sector-wide legal services providers. The National Partnership Agreement on Legal Assistance Services sets out shared outcomes and objectives for four Commonwealth funded legal assistance programs delivered through Aboriginal and Torres Strait Islander legal services, community legal centres, family violence prevention legal services and legal aid commissions.

Legal representation

Legal representation is where the service provider provides legal representation for a client in an alternative dispute resolution process or in a matter before a court, tribunal or inquiry.

Matter The problem or group of problems about which a person seeks assistance from a legal assistance service provider.

Non-legal service provider

A service provider that provides services of a non-legal nature, but closely related to those provided by legal assistance service providers. Examples include financial counsellors and Family Relationship Centres.

Policy and law reform

Policy and law reform services are activities to influence and effect changes to the law and legal process so as to improve equitable access to and the effectiveness of the justice system.

Preventative legal services

Legal services provided by legal aid commissions that inform and build individual and community resilience through community legal education, legal information and referral. These include information and referral, community legal education, publications and website page views.

Process maturity The concept of process maturity looks at how entrenched good practices are within an organisation, based on the premise that the more entrenched the process the more likely it is to support good outcomes. For the purpose of this Review, process maturity is broken down into five levels: • Level 1 – Person–dependent practices that are not documented or formalised. • Level 2 – Documented and partially deployed process, that have been reviewed documented and

approved, but may be inconsistently or partially deployed. • Level 3 – Fully deployed processes with consistency between the documented process and

deployed process. • Level 4 – Measured processes that have set measures and goals. • Level 5 – Continuously improving processes that are measured against goals and targets that are

analysed for achievements and improved regularly.

Quality Reflects the extent to which a service is suited to its purpose and conforms to specifications.



Referral A referral service occurs when: • a service provider assesses the needs of a client seeking assistance; and • determines that the client would be assisted by a service available from another service provider;

and • refers that client to a service provider that is likely to be able to assist them. There are two types of referral service: simple referral and facilitated referral. A client may be provided with one or more of each type of referral. In each case the service is counted separately and the details of each provider to whom the client is referred are reported. A referral service may be made in conjunction with any other service category or service type.

Social exclusion The restriction of access to opportunities and a limitation of the capabilities required to capitalise on these opportunities.

Sources: Based on definitions under the National Partnership Agreement on Legal Assistance Services (NPA) and NPA Review Service Provider Survey and Data Request



References

Bowles, R, and Perry, A 2009, International Comparison of publicly funded legal services and justice systems, MoJ Research Series 14/09, October 2009; Northern Ireland Assembly (2010) Legal Aid: A Country Comparison. Research and Library Service Briefing Paper. Available from http://www.niassembly.gov.uk/researchandlibrary/2010/15610.pdf

Coumarelos, C, Macourt, D, People, J, McDonald, H, Wei, Z, Iriana, R and Ramsay, S 2012, Legal Australia-Wide Survey: Legal Need in Australia, Access to Justice and Legal Needs, Law and Justice Foundation of New South Wales.

Council of Australian Governments (COAG) 2010, National Partnership Agreement on Legal Assistance Services, COAG,. Available from <http://www.federalfinancialrelations.gov.au/content/national_partnership_agreements/Other/Legal_Assistance_Services_NP.pdf>.

Curran, L 2012, A Literature Review: examining the literature on how to measure the successful outcomes: quality, effectiveness and efficiency of Legal Assistance Services, Curran Consulting, prepared for the Commonwealth Attorney-General's Department, February.

Department of Broadband, Communications and the Digital Economy (DBCDE) 2013, Advancing Australia as a Digital Economy. DBCDE, Canberra.

review of the national partnership agreement on legal ... review_las report_final.pdfthe review of...

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