NDIA Accountability Project

National Legal Aid: Role of legal aid commissions in delivering legal assistance services

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National Legal Aid

2020

National Legal Aid represents the directors of the 8 Australian State and Territory legal aid commissions. This booklet describes the role of legal aid commissions in delivering legal assistance services.

Contents

  • Providing legal assistance …………………………………………………………………………… 3
  • Access to services ……………………………………………………………………………………………… 4
  • Reach across Australia ………………………………………………………………………………….. 5
  • Responsive legal assistance ……………………………………………………………………… 6
  • Supporting an improved system ……………………………………………………………… 8
  • Looking forward: working for fair justice …………………………………………………….. 10
  • Working together: legal assistance service providers ………………………. 11
  • Charter of National Legal Aid ……………………………………………………………….. 12
  • National Legal Aid directors …………………………………………………………………… 14
  • 8 legal aid commissions
  • 2 million services in 2018-19 (in excess of)
  • $838.73M 2018-19 funding
  • 78 offices around the country

Access to services

  • Representation: 149,814
  • Dispute resolution: 8,116
  • Duty lawyer services: 479,058
  • Legal advice: 291,206
  • Information & referral: 1,127,832
  • Community legal education resources:
    • presentations: 5,164
    • publications: 3,163

Proportion of community who can access the service

Sources: National Legal Aid Statistics https://nla.legalaid.nsw.gov.au/nlareports/ National Partnership Agreement on Legal Assistance Services 2015-2020

Notes: i) Duty lawyer services include Family Advocacy and Support Services. ii) Legal advice includes work accompanying the advice e.g. drafting of legal letters, telephone advocacy on someone’s behalf etc. iii) Community legal education resources reported here are Commonwealth law related only. More services were provided for state/territory law matters.

Reach across Australia

  • Northern Territory Legal Aid Commission: 5 Offices
  • Legal Aid Queensland: 14 Offices
  • Legal Aid NSW: 24 Offices
  • Victoria Legal Aid: 15 Offices
  • Legal Services Commission of South Australia: 6 Offices
  • Legal Aid Western Australia: 9 Offices
  • Legal Aid Commission of Tasmania: 4 Offices
  • Legal Aid ACT: 1 Office
  • Christmas Island

Legal aid commissions (LACs) are the main providers of legal assistance services in Australia,¹ and provide nearly all the legal assistance representation services at courts and tribunals. In 2018-19 LACs provided in excess of 2 million services (in all law types) to people across the country. These services were delivered from LAC offices and by way of outreach including through health justice partnerships.

Background

LAC services are provided consistently with the priorities specified by inter-governmental partnership agreements on Legal Assistance Services and with the state and territory enabling legislation of the respective LAC. The current agreement is the National Legal Assistance Partnership for 2020-2025, which commenced on 1 July 2020. Litigation is a response of last resort for LACs and the NPA also specifies that “Family or civil law disputes should be resolved through alternative dispute resolution processes rather than through litigation, where appropriate.”²

Legal representation services include legal representation in fully contested matters including the provision of independent children’s lawyers and child representatives as requested by the family law courts and child protection courts respectively, as well as full legal representation services for parties with matters predominantly in the family law, family violence, child protection, and criminal law courts.

Duty lawyer services and family advocacy support services

Duty lawyer services are provided in civil law courts and tribunals including the family law courts, the Administrative Appeals Tribunal, and as many local courts as possible including state and territory family violence courts. “The presence of duty lawyer services on the day at court has been proven to contribute to the effectiveness and efficiency of the court process for both the client and the court or tribunal”.³ Family Advocacy and Support Services (FASS) are provided at some registries of the family law courts⁴ to assist families experiencing domestic violence as they move through the family law system. The FASS integrates duty lawyers with specialist family violence workers to help families navigate between the federal and state court systems and connect people with trauma-informed help such as risk assessments and safety planning.

  1. Productivity Commission 2014, Access to Justice Arrangements, Inquiry Report No. 72, Canberra vol 2 667.
  2. Productivity Commission 2014, Access to Justice Arrangements, Inquiry Report No. 72, Canberra vol 2 667.
  3. An evaluation of Legal Aid NSW’s Early Intervention Unit Duty Service at Parramatta Family Law Courts, Law and Justice Foundation, 2012 www.legalaid.nsw.gov.au/data/assets/pdf_file/0003/15969/Evaluation-of-Family-Law-Early-Intervention- Duty-Service.pdf found that the duty service contributed to the efficiency and effectiveness of the court process by: diverting matters that should not have been in court and advising and assisting clients to take the most appropriate course of action; and contributing to the resolution of matters on the day through the drafting of documents, including providing a ‘reality check’ with clients – while explaining the processes and implications and negotiating with other parties for clients.
  4. The services in the Northern Territory are primarily delivered from the Darwin Local Court and the Katherine Local Court due to demand for services at these locations.

Dispute resolution services

Dispute resolution services are provided as a necessary first step in all matters which are appropriate for such service delivery. All LACs operate programs which provide legally assisted models of dispute resolution conferences, and which achieve very high settlement rates, e.g. in 2018-19 the national average settlement rate was 77%. The LACs organise conferences, including providing the Chairperson for these conferences, and ensure parties who qualify for a grant of legal aid are legally represented. Whenever settlement is achieved these services avoid the cost of resources associated with court proceedings, including the cost of court administration and hearing time.

The legal advice, information and referral services, and community legal education, are non-means tested services designed as prevention and early intervention strategies. These services are provided on-line, by phone, and face to face. LACs produce information and self-help resources and provide community legal education services to further support self-representing parties with various problem types.

COVID-19

In March 2020 LACs moved with relative agility to deliver the majority of legal assistance services online, maintaining legal assistance and social support services, and supporting the safety of our community.

Supporting an improved system

  • 2 million services to the public
  • Family dispute resolution – 77% national settlement rate
  • Your Story Disability Legal Support – Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability Your Story Disability Legal Support is a free national service, providing information and legal advice to people about safely sharing their story with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The Australian Government funds National Legal Aid and the National Aboriginal and Torres Strait Islander Legal services to deliver the national service.⁵
  • Family Advocacy and Support Services Family Advocacy and Support Services at the main registries of the family law courts deliver legal assistance and social support services to families with family law matters who have been affected by family violence. Family Violence Law Help website https://familyviolencelaw.gov.au/ is a family violence and family law community legal education resource developed by NLA to complement the Family Advocacy and Support Services. This national website houses family violence resources and information about the Family Advocacy and Support Service in each state and territory. National Legal Aid gratefully acknowledges the support of the Commonwealth Attorney- General’s Department.
  • Independent children’s lawyers Provision of independent children’s lawyers. Dedicated website (https://icl.gov.au/) and suite of publications to provide information, news and resources to the public about the role of the independent children’s lawyers in family law proceedings, and also the professional development and mentoring for those undertaking the role.⁶ Independent children’s lawyers training program comprising online and face to face training modules and tested learnings.
  • Commonwealth Family Violence and Cross-examination of Parties Scheme administered by LACs This Scheme protects victims of family violence from being cross-examined by alleged perpetrators.
  • amica - online dispute resolution system amica assists separating couples in Australia to resolve their family law disputes with less reliance on formal pathways. National Legal Aid gratefully acknowledges the sponsorship of the Commonwealth Attorney-General’s Department in developing amica.

⁵ Your Story Disability Legal Support website, https://yourstorydisabilitylegal.org.au/Home ⁶ In response to the release of the Australian Institute of Family Studies Independent Children’s Lawyers Study Final Report 2nd edition, June 2014, and with NLA taking on sole responsibility for independent children’s lawyer training as from May 2017.

Supporting an improved system (continued)

  • Consumer outcomes Membership of the Australian Banking Association Consumer Outcomes Group and participation in the development of customer focused guidelines. Providing legal assistance to disadvantaged consumers which was recognised by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry as often of critical importance to the customer’s position making a large difference to their situation.⁷
  • What’s the law? Australian law for new arrivals What’s the law? was produced for national use in the Adult Migrant English Program (AMEP) and addresses 10 commonly experienced legal issues. The kit includes a DVD with 10 photo stories, information for teachers and activity sheets. The kit was evaluated in 2014 with teachers and in 2016 a research study, focusing on one of the What’s the law? modules, found that it improved the participants understanding of the law. The study was published in 2018 in the Journal of Law and Social Policy. This resource was developed by the eight Australian state and territory legal aid commissions, and inspired by the resource Getting to know the law in my new country, produced by the Footscray Community Legal Centre in Victoria.
  • National consultations and submissions, including in response to parliamentary inquiries and reviews by the Australian Law Reform Commission, ensuring an experience informed national response. For example:

Family law

  • Joint Select Committee on Australia’s Family Law System (Sept 2019 to Oct 2020)
  • Review of the family law system by the Australian Law Reform Commission (Sept 2017 to March 2019)
  • Family Law Amendment (Parenting Management Hearings) Bill 2017, Senate Legal and Constitutional Affairs Committee Inquiry
  • Family Law Amendment (Family Violence and Other Measures) Bill 2017 Exposure draft and public consultation paper and the Senate Legal and Constitutional Affairs Committee Inquiry
  • Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 Exposure draft and public consultation paper, Commonwealth Attorney-General’s Department
  • Parliamentary inquiry into a better family law system, House of Representatives Standing Committee on Social Policy and Legal Affairs

Elder abuse

  • The provision of legal assistance services to help prevent and respond to elder abuse with specialist response units networked to the community.
  • Australian Law Reform Commission Elder Abuse Inquiry, Issues Paper and Discussion Paper.

⁷ Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, Final Report (2019) vol 1, 490-3.

Looking forward: working for fair justice

  • Implementation of the National Legal Assistance Partnership Agreement 2020-2025.
  • Responding to the report on the Review of the family law system by the Australian Law Reform Commission.
  • Lawyer-assisted family law property mediation - extending the LACs’ successful legally- assisted family dispute resolution program to family law small property matters. National Legal Aid gratefully acknowledges the support of the Commonwealth Attorney- General’s Department for the delivery of this pilot.
  • Participating in the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
  • Supporting consumers following the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
  • Responding to elder abuse.
  • Hosting the International Legal Aid Group Conference 2021

“The International Legal Aid Group (ILAG) is a network of legal aid specialists including Chief Executives and Managers from Legal Aid Commissions, high ranking Civil Servants and leading Academics from over two dozen countries. ILAG’s mission is to improve evidence-based policy-making in the field of poverty legal services through discussion and dialogue relating to international developments in policy and research. ILAG focuses primarily on the particular issues raised in jurisdictions which have established highly developed systems of legal aid. However, ILAG is expanding its brief to include jurisdictions with less developed systems and has a real interest in how technology can be used to improve access to justice.”⁸

⁸ International Legal Aid Group website http://www.internationallegalaidgroup.org/

Legal assistance in Australia is provided by four main groups of providers, each of which receives funding from either or both of the Commonwealth and respective State or Territory governments.

The four main funded providers are:

  • Legal aid commissions
  • Aboriginal and Torres Strait Islander Legal Services
  • Family Violence Prevention Legal Services
  • Community legal centres.

“While all four providers offer a mix of services from legal education to casework for individuals and groups of clients, the targets for their services differ, as do their size. All four employ mixed service delivery models, with a focus on holistic services.”⁹

The mixed service delivery model involves the use of both in-house lawyers and private lawyers who are prepared to work for legal aid rates which are significantly less than market rates. In addition to the contribution made by private lawyers through the mixed service delivery model there are various schemes of pro bono assistance and volunteering.

Good relationships and co-operative arrangements exist between legal assistance service providers. These relationships and arrangements ensure that services are extended as far as possible, and that issues such as legal conflict are addressed. They also ensure that people receive the service most appropriate to their individual need.

Nationally, relationships and co-operation are supported by the Australian Legal Assistance Forum constituted by representatives of the peak bodies for all legal assistance providers. http://www.nationallegalaid.org/home/australian-legal-assistance-forum-alaf/

Locally, providers also meet regularly for jurisdictional service planning purposes and to ensure that referral networks, including in relation to non-legal support for clients, are strong.

⁹ Productivity Commission 2014, Access to Justice Arrangements Inquiry Report No. 72, Canberra, 767.

Membership

National Legal Aid (NLA) represents the directors of the eight state and territory legal aid commissions (LACs) in Australia.

The LACs are independent statutory bodies that provide legal assistance services to the public, with a particular focus on the needs of people who are economically and/or socially disadvantaged. LACs provide in excess of 2 million legal services each year.

One of the NLA directors, on a rotation basis, is the Chair and primary spokesperson for NLA.

Purpose

NLA’s purpose is to:

  • lead and encourage a national system of legal aid which allows economically disadvantaged people to obtain access to justice, and
  • provide a forum for engagement at a national level with government/s, stakeholders, community; and for the individual LACs to engage with each other about best practice of legal aid and related issues.

Beliefs

NLA is guided by belief in the rule of law and the importance of an effective, efficient, independent justice system which is accessible to everyone. These are the cornerstones of a civil and democratic society.

Priorities

In 2019-20 key priorities for NLA include:

  • Achieving an increase in core funding to legal assistance service providers with that funding to be adjusted each year in accordance with the Consumer Price Index, so that more services can be delivered to people in need.
  • Responding to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
  • Working with government and service providers to ensure the most appropriate response following the release of the report of the Australian Law Reform Commission’s Review of Family Law.
  • Support for adequate funding for the Aboriginal and Torres Strait Islander legal services as the ‘specialised legal assistance services for Aboriginal and Torres Strait Islander people’.¹⁰

¹⁰ Productivity Commission 2014, Access to Justice Arrangements: Overview, Inquiry Report No. 72, Canberra, 767.

Strategies

NLA:

  • maintains a set of policies which provide the basis for our work in advocating for equitable access to justice;
  • is supported by a secretariat and by a number of working groups and networks including a representative of each of the LACs with expertise in the respective area of legal aid business, and
  • meets regularly for strategic planning purposes.

Co-operation

There are four main government funded legal assistance service providers in Australia, including the LACs, community legal centres, Aboriginal and Torres Strait Islander legal services and Family Violence Prevention Legal Services.

NLA is a member of the Australian Legal Assistance Forum (ALAF), comprised by representatives of the above legal assistance service providers and the Law Council of Australia representing Australian lawyers and their state and territory representative bodies, a signatory to the ALAF Statement of Co-operation, and provides the ALAF Secretariat.

New Zealand

There is a strong alliance between NLA and Legal Aid Services New Zealand. The legal aid alliance facilitates the sharing of information, the showcasing of initiatives, and contributes to the development of best practice. A representative of Legal Aid Services NZ attends NLA meetings to discuss matters of mutual interest.

Further information

Further information about NLA and the work that we do, can be found at

http://www.nationallegalaid.org/