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Annual Report 2008-09 Output 1.7

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Indigenous law and justice and legal assistance

Summary

The Department provides policy leadership for Indigenous law and justice programs and legal assistance, in line with the Government’s broader agendas for social inclusion and reducing Indigenous disadvantage. The Department’s policies and programs actively contribute to achieving these agendas, and contribute to Output 1.7, by promoting recognition of and respect for human rights, and by ensuring appropriate services are available and accessible to help disadvantaged Australians resolve legal problems and disputes. The Department seeks to enhance Indigenous family and community safety through preventing violence and providing support for Indigenous Australians experiencing adverse contact with the justice system.

Major achievements

Indigenous policy and advice

During the year, the Department led development of the National Indigenous Law and Justice Framework by chairing the responsible working group of the Standing Committee of Attorneys-General and leading a three-month public consultation. It is expected that the standing committee will consider endorsing the framework in 2009–10. The Department has also been working on options for a new body to advise the Attorney-General and the Government on Indigenous law and justice. A national recruitment campaign attracted a strong field of applicants. Reconciliation action plans were reviewed across the portfolio, and the Department actively encouraged development of such plans across all Commonwealth agencies.

Additional funding for legal assistance

The Department’s legal assistance programs provide important support for the Government’s broader social inclusion agenda by helping people resolve legal problems and disputes before they escalate and lead to entrenched disadvantage. During the year, the Australian Government provided an injection of more than $26 million in one-off additional funding for these services. These additional resources will help address pressing legal assistance needs, including those of Indigenous Australians and families experiencing separation.

During 2008–09, State legal aid commissions received a total of $10.1 million—New South Wales, $4.4 million; Victoria, $3.2 million; Queensland, $1 million; Western Australia, $1 million; and Tasmania, $500,000—primarily to relieve cost pressures on services. The additional resources were to fund measures to improve mediation conference services, to upgrade information technology and video-conferencing equipment, and to provide training on mediation skills and identification and management of family violence.

Aboriginal and Torres Strait Islander Legal Services (ATSILS) received $7.1 million. This funding is being directed toward addressing increased demand for services and better supporting current service delivery through improvements to assets and infrastructure, such as information technology. This funding also enabled ATSILS to continue delivering legal services at Indigenous-specific courts. Indigenous-specific courts, including Circle Sentencing and Nunga, Murri, and Koori bush courts, are an expanding feature in Australian jurisdictions. Indigenous-specific courts provide greater capacity to respond flexibly to client needs, requiring intensive solicitor involvement for each case.

The Commonwealth Community Legal Services Program received $9.4 million. From this amount, the Family Relationship Services Program provided $3.6 million for developing pilot programs to build better partnerships and increase collaboration between Family Relationship Centres and Community Legal Centres. The remaining one-off additional funding ($5.8 million) was targeted to helping disadvantaged Australians who need legal assistance in such areas as:

  • consumer protection, mortgage and tenancy issues
  • welfare rights
  • family law matters, such as early intervention, and prevention of family violence, and
  • matters affecting older Australians.

One-off funding was also directed towards:

  • establishing a trial legal clinic for homeless people in the Australian Capital Territory
  • helping the Homeless Persons’ Legal Clinic in Victoria, and
  • developing clinical legal education projects focused on family law.

Prevention, Diversion, Rehabilitation and Restorative Justice program

In 2008–09, the Prevention, Diversion, Rehabilitation and Restorative Justice program provided $26.147 million to 90 projects across four key areas—youth; prisoner support and rehabilitation; restorative justice; and night patrols. The program funds projects designed to divert Indigenous Australians away from adverse contact with the criminal justice system. This includes projects funded under the Australian Government’s Petrol Sniffing Strategy to address the negative effects of substance abuse and petrol sniffing in Indigenous communities.

Funding contributed to night patrol services in 81 communities in the Northern Territory including the 73 identified communities, town camps in Katherine, Tennant Creek and Alice Springs and communities affected by the Northern Territory Emergency Response (NTER). Night patrols increase personal and community safety across rural and remote Indigenous communities, particularly for women and children. They also play an indirect role in reducing substance abuse and anti-social behaviour and help prevent family violence.

Northern Territory Emergency Response

Legal assistance and Indigenous law and justice programs received $20.445 million for law and order measures, including additional funding for Indigenous legal assistance and interpreter services under the NTER. This included funding for 73 night patrol services of which 72 were operational at the end of 2008–09.

Legal assistance programs received $4.7 million in 2008–09 to continue providing additional services to the NTER. The Northern Territory Legal Aid Commission received $625,000, the two ATSILS in the Northern Territory received $3 million, and community legal centres in the Northern Territory received $1.1 million.

An additional $683,000 was provided to the Northern Territory Aboriginal Interpreter Service to meet increased demand for interpreters as a result of the NTER. The additional funding allowed the Service to recruit a Project Manager to coordinate all emergency response activities and services as well as Community Liaison Officers in Katherine, Alice Springs and Darwin to facilitate understanding of policies, programs and initiatives.

Legal aid and law and justice advocacy for Indigenous Australians

Under the Legal Aid for Indigenous Australians Program, $59.189 million (including funding under the emergency response) was provided to the ATSILS to deliver culturally sensitive legal aid services to Indigenous Australians across nine States/zones.

During the year, the South Australian ATSILS opened a new office in Coober Pedy, increasing the total number of Indigenous legal aid service delivery sites in metropolitan, regional and remote areas to 85 nationally.

In August 2008 the Department hosted the inaugural annual national ATSILS conference to bring together key representatives to share information and ideas and discuss contract, grant and service delivery issues for 2008–11.

The Department also supported significant advocacy, law reform, community legal education and research activities during 2008–09, including six national meetings of key senior ATSILS representatives to discuss law and justice issues affecting Indigenous legal assistance services. ATSILS was also funded to train staff to conduct legal matters under the Western Australia, South Australia and Northern Territory Cross Border Scheme, and to develop an Aboriginal Justice Agreement with South Australia.

The Indigenous Law Centre (University of New South Wales) was funded to publish the Indigenous Law Bulletin and the Australian Indigenous Law Review. These publications provide the public with access to current, relevant and useful information on the legal rights of Indigenous Australians. In December 2008 the Indigenous Law Centre, in conjunction with ATSILS, published a special edition of the Australian Indigenous Law Review: Coronial Reform and Preventing Indigenous Death. This publication was launched in February 2009 by the then Minister for Home Affairs, the Hon Bob Debus MP.

The Department also provided funding in the Aurukun and Kowanyama Aboriginal Shire Council appeal to test the validity of section 106(4) of the Liquor and Other Acts Amendment Act 2008 (Qld) under sections 9(2) and 10 of the Racial Discrimination Act 1975 (Cwth).

Indigenous family violence prevention

The Family Violence Prevention Legal Services (FVPLS) program provided funding of $18.8 million in 2008–09 for services related to victims–survivors of family violence and sexual assault to ensure greater access to justice.

Expansion of the program was completed during the year when the Tennant Creek Unit in the Northern Territory was opened in May 2009; 31 FVPLS units are now operating. Community legal education and ongoing FVPLS work has led to greater community awareness of the purpose of the units and resulted in their increased use.

The review and modification of the FVPLS Operational Framework during 2008–09 will lead to improved service delivery in 2009–10. Changes to program guidelines have integrated the Early Intervention and Prevention program and the Community Legal Education program into FVPLS for 2009–10, improving opportunities for resource efficiencies.

As well, a review of FVPLS reporting requirements, in consultation with the Cross Agency Working Group on Indigenous Funding and Governance Reform, has resulted in development of new performance indicators, and will ensure reporting requirements are streamlined, consistent, logical and transparent.

Community legal services

The Australian Government provided $31.1 million for the Commonwealth Community Legal Services Program in 2008–09, including one-off additional funding and funding for community legal services for the emergency response. The program provided funding to 128 services across Australia under three-year agreements scheduled to expire on 30 June 2009. The agreements have been extended for 12 months and are now due to expire on 30 June 2010. All targets specified in the 2008–09 Portfolio Budget Statements have been met.

The Australian Government also has three-year agreements in place for providing State Program Manager services from the legal aid commissions in New South Wales, Victoria, Queensland, Western Australia and Tasmania, and from the South Australian Attorney-General’s Department. State Program Managers assist in the day-to-day management of the Commonwealth Community Legal Services Program in each state under a cooperative working relationship. These agreements have also been extended for 12 months and are now due to expire on 30 June 2010.

Legal aid

The Australian Government provided $171.1 million for Commonwealth legal aid in 2008–09, including one-off additional funding and funding provided for legal aid services relating to the emergency response. Of this funding, $168.1 million was provided as Commonwealth payments to the States and Territories for provision of legal aid services through legal aid commissions for matters arising under Commonwealth laws that have been reclassified as National Partnership payments. This included $1.687 million provided for initiatives to improve access to services in regional Australia under the Regional Innovations Program for Legal Services in New South Wales, Queensland, Western Australia and Tasmania. Agreements with the States and Territories for these services were due to be replaced by 31 December 2008, but have been rolled over until a National Partnership Agreement is negotiated.

The Legal Aid Program also reimbursed defence costs of $2.689 million incurred by legal aid commissions in expensive Commonwealth criminal cases, so the high cost of these cases did not affect commissions’ ability to provide services in other matters, such as family law. The Northern Territory Legal Aid Commission was reimbursed $0.206 million for the cost of services relating to illegal foreign fishing matters.

Financial assistance schemes

The Australian Government provided direct financial assistance of more than $3.155 million through 26 financial assistance schemes, both statutory and non-statutory, to individuals and organisations for legal costs and related expenses where legal aid was not available from legal aid commissions or pro bono practitioners and where the circumstances gave rise to a special Commonwealth interest.

Grants of financial assistance were approved in a broad range of Commonwealth matters across all States and Territories. In particular, under its Royal Commissions and Inquiries Scheme, the Department established a scheme of financial assistance for reasonable legal costs and related expenses for non-government witnesses appearing before, or preparing a submission to, the Clarke Inquiry into the case of Dr Mohamed Haneef. The Attorney-General approved specific guidelines to provide detailed information about the scope and limits of the financial assistance available to members of the public. Under the guidelines, financial assistance was available where the applicant’s personal interests could be exposed to prejudice as a result of appearing before the inquiry, where the applicant was likely to be central to the inquiry or the applicant’s appearance was likely to assist the inquiry in its task. Financial assistance was also provided for overseas legal costs in special circumstances, including to Australians facing serious charges overseas and to Australian parents seeking return of their abducted children to Australia.

Pro bono services

In September 2008 and February 2009, the Department coordinated pro bono roundtables with representatives from the legal profession. The roundtables were hosted by the Attorney-General. A key outcome has been establishment of the Attorney-General’s International Pro Bono Advisory Group to help better target and support international pro bono work and ensure coordination with Australia’s international development assistance programs. The group brings together a range of private sector lawyers, government and non-government agencies with expertise in international pro bono and development assistance work.

Purchaser/provider arrangements

The Department has contracted the following ATSILS until 30 June 2011 to deliver legal aid services on a State or zone wide basis:

  • Aboriginal Legal Service (NSW/ACT) Limited—New South Wales, including the Australian Capital Territory and Jervis Bay Territory
  • Victorian Aboriginal Legal Service Co-operative Limited—Victoria
  • Aboriginal and Torres Strait Islander Legal Service (Qld) Limited—Queensland North and South Zone
  • Aboriginal Legal Service of Western Australia Incorporated—Western Australia
  • Aboriginal Legal Rights Movement Incorporated—South Australia
  • Tasmanian Aboriginal Centre Incorporated—Tasmania
  • North Australian Aboriginal Justice Agency Limited—Northern Territory North Zone, and
  • Central Australian Aboriginal Legal Aid Service Incorporated—Northern Territory South Zone.

ATSILS are contracted to deliver legal aid services, including advice, duty lawyer and casework services relating to criminal, civil and family law, to Indigenous Australians. The Department’s monitoring of ATSILS’ performance indicates that service level targets were substantially achieved during 2008–09, with a number of ATSILS exceeding targets.

The Department engaged Dr John Walker of John Walker Crime Trends Analysis to review and update the Indigenous legal aid funding allocation model to incorporate data from the 2006 Census.

Evaluations and reviews

Review of implementation of night patrol services in the Northern Territory

The Department reviewed implementation of the night patrol services in the Northern Territory in November 2008. The review aimed to identify good practice and areas of difficulty in meeting program funding agreement requirements and the night patrol services operational framework.

Recommendations from the review related to strengthening program administration through workshops, visits and further relationship building, and program enhancement through revising funding for salaries and reconsidering performance indicators. The Department is working towards implementing the recommendations.

The review has allowed the Department to refine and improve its capacity to effectively manage the program and deliver services in the Northern Territory.

Review of delivery of prisoner support in New South Wales

The Department reviewed two prisoner support projects in New South Wales to determine if it was getting value for money and to ensure services were being delivered effectively.

Recommendations from the review considered options for increasing the effectiveness and efficiency of service delivery through restructuring funding to achieve economies of scale. This could involve combining certain functions and making better use of existing infrastructure. The Department is considering the recommendations, as a basis for future funding decisions to reduce duplication of services and to maximise effectiveness of available funding.

Commonwealth Community Legal Services Program review

The Department continued consulting with the States and the community legal services sector about the review of the Commonwealth Community Legal Services Program undertaken in 2007–08. Consultations will continue into 2009–10 and will help inform development of new service agreements with funded organisations.

Evaluation of Indigenous Law and Justice Advocacy Development program

The Office of Evaluation and Audit (Indigenous Programs) conducted a performance evaluation of the Law and Justice Advocacy Development program in 2008–09 to examine its efficiency and effectiveness.

The evaluation recommended integration of the Law and Justice Advocacy Development program into the Legal Aid to Indigenous Australians program. The evaluation also recommended development of revised performance indicators to better reflect the medium term outcomes arising from advocacy, education and research activities. The Department will work with grantees to develop revised performance indicators for this program.

National evaluation of family dispute resolution in legal aid commissions

A national evaluation of the effectiveness of family dispute resolution services in legal aid commissions was completed during 2008–09. The evaluation identified that the services operate effectively in a number of areas, including that family dispute resolution is low cost and less adversarial, appropriate referrals are made to other agencies, screening and intake processes have improved, and skills of family dispute resolution practitioners are appropriate. The evaluation found that for every dollar commissions spend on family dispute resolution, $1.48 is saved in litigation costs.

Key recommendations from the evaluation included creating a framework to facilitate ongoing program development and continuous improvement in the future, improving pre-conferencing preparation of parties, and developing a national risk assessment and management approach to screening and intake for family dispute resolution services in legal aid commissions.

Outlook

The challenging budgetary environment will mean opportunities for expanding base funding for programs are very restricted. However, increased operating costs and demand for services arising from the global economic downturn will need innovative solutions to achieve improved outcomes with limited funds. Significant program redesign will be considered in some areas.

Reforms to Commonwealth–State financial relations will continue to affect the Department’s responsibilities in the areas of legal assistance and Indigenous community safety. In particular, the Department will need to continue assessing the nature of its role in delivering programs in areas that are primarily State and Territory responsibilities and identify mechanisms for Commonwealth leadership to be asserted without necessarily being tied to funding.

The priority the Government gives to reducing Indigenous disadvantage, as well as the significant community concern about Indigenous community safety, and the conviction and incarceration rates of Indigenous people, will continue to drive Indigenous law and justice policy and programs. Programs will need to be assessed to ensure they are meeting government objectives and achieving desired outcomes.

Legal assistance programs will need to respond to the high priority the Attorney-General gives to access to justice, to incorporate social inclusion principles and priorities, and to meet challenges arising from classification of legal aid as a National Partnership, including new accountability, monitoring and reporting obligations. Legislative changes will need to be continually monitored to assess their impact on programs.

Whole-of-government reforms to grants management and the departmental review of grants programs will provide an opportunity to review grant management practices, with a view to achieving greater consistency in administration and to promote best practice across grants programs.

Performance indicators

Table 11: Performance indicators, Output 1.7—Indigenous law and justice and legal assistance

Key performance indicators 2008–09 target Result

State and Territory legal aid commissions meet service delivery in accordance with agreed targets

90% of agreed service delivery targets are met by State and Territory legal aid commissions

Achieved

At the end of the third quarter, commissions had met or exceeded target service numbers. Unit cost targets for family dispute resolution and litigation were exceeded in some jurisdictions, but the average unit cost across all commissions varied by less than 10%.

Community legal centres meet standard service delivery plans under funding agreements

95% of audited service providers meet community legal service providers service standards

Achieved

Of the service standard audits undertaken, more than 95% met requirements.

Financial assistance decisions are made in a timely and efficient manner, and are well reasoned and consistent, taking into account administrative law requirements

95% of financial assistance decisions are completed within 60 days of receipt of all relevant information

Partially achieved

Records show that 65% of decisions were completed within 60 days of receipt of all relevant information.

No decisions were subject to judicial review or review by the Ombudsman indicating a high level of consistency and adherence to administrative law requirements.

Indigenous legal aid and Indigenous law and justice advocacy organisations meet service delivery targets in accordance with project targets

95% of audited service providers meet Indigenous legal aid and Indigenous law and justice advocacy providers service standards

Achieved

Data provided at the end of the third quarter indicates service providers are on track to meet service delivery targets. Funded organisations have provided all reports required to date.

Family violence prevention legal services meet performance indicators in accordance with program funding agreements

95% of service providers auditing their compliance with program service standards meet the requirements of the standards

Partially achieved

The self-auditing process has not been undertaken consistently. The Department has reviewed program reporting requirements and is implementing new key performance indicators in line with agreement reached by the Combined Agencies Working Group.

Providers deliver restorative justice, youth diversion, night patrol and rehabilitation services in accordance with project targets

95% of audited service providers meet prevention, diversion, and rehabilitation and restorative justice providers service standards. Night patrols delivered in 73 designated communities

Achieved

The program met all 2008–09 targets. Night patrol services were operational in 72 of the 73 NTER communities.

Providers deliver interpreter services to Indigenous Australians in the Northern Territory in accordance with project targets

95% of Northern Territory interpreter services meet required performance indicators and financial reporting requirements as set out in the program funding agreement

Achieved

The Northern Territory Aboriginal Interpreter Service complied with the requirements of the memorandum of understanding between Australian and Northern Territory Governments

Legal and policy advice is effective and delivers positive outcomes for the Australian Government in pursuit of legal assistance and Indigenous justice matters

Ministers and key agencies express a high degree of satisfaction as to the quality, effectiveness and timeliness of advice, as measured by periodic feedback

Achieved

Ministers and key agencies have expressed satisfaction with advice provided by the Department.

 

  Results

Payments for the provision of legal aid for Indigenous Australians

Achieved

In 2008–09 one-off additional funding of $8.1 million (including funding under the NTER) was provided, not all of which was directed through legal services contracts.

 

2007–08

2008–09

Number of clients

179,719

210,072

Budget price: $59.187 million

Actual price: $59.188 million

Payments for the provision of law and justice advocacy services for Indigenous Australians

Achieved

Payments were made through program funding agreements for 2008–09; this program funded a total of 11 advocacy, law reform, community legal education and research projects.

Budget price: $2.510 million

Actual price: $2.510 million

Payments for the provision of prevention, diversion, rehabilitation and restorative justice services for Indigenous Australians

Achieved

Funds were provided through program funding agreements for 90 projects across four sub-outputs: youth projects, night patrols, prisoner support and rehabilitation, and restorative justice.

Budget price: $26.147 million

Budget price: $26.146 million

Payments for the provision of family violence prevention legal services for Indigenous Australians

Achieved

Payments have been achieved through program funding agreements for 2008–09.

Budget price: $18.776 million

Actual price: $18.798 million

Payments for Indigenous interpreter services in the Northern Territory

Achieved

Funding is provided for Indigenous interpreter services under a three-year memorandum of understanding between the Commonwealth and Northern Territory Governments. The Australian Government provided additional funding to meet the demand associated with the NTER.

Budget price: $1.843 million

Actual price: $1.843 million

Payments for the provision of legal aid—legal aid commissions

Achieved

Some commissions were reimbursed for the cost of expensive Commonwealth criminal cases and for illegal fishing cases. Funding also supported program development activities, including evaluating legal aid commission family dispute resolution services.

Budget price: $4.733 million

Actual price: $2.999 million

Payments for the provision of legal aid—States and Territories

Achieved

In addition to annual services payments required under legal aid agreements, legal aid commissions in New South Wales, Victoria, Queensland, Western Australia and Tasmania received one-off additional funding. New South Wales, Queensland, Western Australia and Tasmania received funding under the Regional Innovations Program for Legal Services.

Budget price: $118.532 million

Actual price: $118.452 million

Payments for the provision of community legal services

Achieved

Payments made in accordance with the terms and conditions of the service agreement.

Budget price: $31.104 million

Actual price: $31.082 million

Financial assistance towards legal costs and related expenditures

Achieved

Assistance was granted in accordance with guidelines. The overspend has been managed within the overall funding for Outcome 1.

Budget price: $3.025 million

Actual price: $3.152 million


Our people

Delivering night patrol services in the Northern Territory

Glenn Phillips, Indigenous Policy and Service Delivery Branch, Social Inclusion Division

Glenn Phillips, Indigenous Policy and Service Delivery
Branch, Social Inclusion Division
.

Empowering Indigenous communities and making them safer

Since the Australian Government launched the Northern Territory Emergency Response (NTER) in 2007, the Department has helped establish night patrol services in Indigenous communities across the Northern Territory.

One of many NTER law and order measures, this initiative sets out to deliver safer communities and increased employment options within Indigenous communities.

Glenn Phillips, in the Indigenous Policy and Service Delivery Branch, explained, ‘Night patrols have been recognised within the NTER as essential to promoting law and order and increasing community safety.’

With a background in accounting, working with people instead of numbers is a bonus for Glenn.

‘I’m enjoying the people factor in this project: the team, my colleagues across government and the service providers. And it’s more than just a job, it’s about change, empowering Indigenous communities and making them safer.

‘This measure supports the Department’s commitment to providing access to justice and social inclusion. We’re working collaboratively with a range of departments at the federal and Territory levels, with non-government stakeholders, and with the community.

‘A unique identifier of night patrol services is that it puts the onus of safety directly on the community through its Shire councils, empowering them to deliver a patrol service that supports specific safety needs of their community.

‘This may involve the patrol service providers engaging with people at risk, minimising antisocial behaviour and diffusing volatile situations.’

Glenn and his team, in conjunction with the Shire councils, have rolled out 72 night patrols in NTER-identified communities.

‘The focus is now on consolidating those services, and making sure they remain functional and sustainable,’ Glenn said.

‘It’s also about building and maintaining relationships with the Shire councils, the stakeholders and, most importantly, the community, to achieve the best outcomes possible,’ he added.

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