VICTORIAN ABORIGINAL LEGAL SERVICES

SUBMISSSION TO THE FEDERAL BUDGET 2013-2014

SUMMARY

The Victorian Aboriginal Legal Service Co-Operative Limited (VALS) was established in 1973 and provides referral, advice and information, and duty or case work assistance in criminal, family and civil law, to Aboriginal and Torres Strait Islanders in Victoria.

In Victoria, all Federally funded Aboriginal and Torres Strait Islander Legal Services (ATSILS) are provided by VALS.

Funding levels to ATSILS areneither keeping pace with movements in the consumer price index nor growth in demand. As a result VALS’ capacity to deliver equitable access to justice for Aboriginal and Torres Strait Islanders is compromised.

Accordingly VALS is seeking:

  1. Immediateannual indexation of 3.1% to maintain current levels of service delivery and help meet the costs associated with the increased complexity of matters dealt with. In Victoria it is estimated that this level of indexation will cost an additional $57,000in 2013-14; and
  2. Development of a funding model that recognises increases in demand and changes in the mix and complexity of matters dealt with, for implementation in subsequent budgets.

These changes are needed to meet:

  1. Increasing demand due to higher than average growth of the ATSI population anda lower median age. The 2011 census shows that Victoria’s ATSI population grew by 26% since the 2006 census or 4.7% per annum, almost twice the annual rate of previous estimates. Significantly the median age is 22 years indicating that the population is youngandgrowing. It this latter group that is far more likely to have contact with the criminal justice system.
  2. Demand arising from changes in sentencing policy and strengthening of effort in areas such as child protection and family violence which result in more Aboriginal people having contact with the justice system as both perpetrators and victims.
  3. A change in the complexity of matters, particularly in relation to mental health and co-morbidity requiring more intensity of effort.
  4. Increasing operating costs including utilities, cars, fuel and technology; costs associated with maintaining quality of service;and significant wage pressures associated with the Social, Community Health and Disability Services fair pay decision, which has been recognised by the Federal Government.

Failure to provide adequate indexation and meet demand growth will compromise progress towards the Close the Gap goals endorsed by all jurisdictions through COAG. This is particularly so because ATSI women and young people are increasingly and disproportionately coming into contact with the justice system and are more likely to be remandedor receive a custodial sentence. Incarceration of women has a severe impact on children and extended families, while young people who are incarcerated are less likely to participate in education and training, establish a foothold in the labour market or build positive social networks, and are thus at greater risk of a lifetime of offending.

The downstream budget impact is both direct and indirect. Imprisonment is estimated to cost $1309 per person per week. A 10% decline in the ATSI prison population is estimated to save $10m.[1]More broadly,the social return on investment in the Victorian Aboriginal Justice Agreement has been estimated at $22-$26m in 2009/10 alone.[2]

Equitable investment in ATSILS not only addresses the fundamental principle of equity before the law, it makes good economic sense.

VICTORIAN ABORIGINAL LEGAL SERVICES

SUBMISSSION TO THE FEDERAL BUDGET 2013-2014

INTRODUCTION

  1. In this submission the Victorian Aboriginal Legal Services (VALS)is proposing improved funding for ATSILS, through the introduction of adequate annual indexation in the 2013-14 budget and the development of a funding model that recognises increases in demand and changes in the mix and complexity of matters dealt with, for implementation in subsequent budgets.

BACKGROUND

  1. Over-representation of ATSI people in the justice system is well recognized and all Governments invest in a range of measures that divert people from crime and support them once they enter the system.
  2. Aboriginal Legal Services were established in the 1970s in response to the lack of representation available to ATSI clients in the justice system and are central to ensuring that ATSI people have equitable access to justice.
  3. Commonwealth funding to Aboriginal Legal Services increased following the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC), which amongst other things recommended:
  4. Rec 234: That Aboriginal Legal Services throughout Australia be funded to such an extent as will enable an adequate level of legal representation and advice to Aboriginal juveniles;
  5. Rec 105: That in providing funding …governments should recognize that Aboriginal Legal Services have a wider role to perform than their immediate task of (representation and legal advice)…including investigation and research into areas of law reform in both criminal and civil fields, which relate to Aboriginal people…
  6. Rec 226: That in all jurisdictions the processes for dealing with complaints against police need to be urgently reviewed… and that Aboriginal Legal Services be funded to ensure that legal assistance if required is available to any Aboriginal complainant.
  7. More recently, the Australian Human Rights Action plan 2012 confirmed the Federal Government’s ongoing commitmentto funding for ATSILS,
  8. The Australian Government will continue to provide funding for legal assistance services, including: “Aboriginal and Torres Strait Islander Legal Services whose priority clients are those who are detained or at risk of being detained in custody. This includes funding of $199.1m over three years, commencing 2011.” The timeframe is listed as ‘ongoing’. [3]
  9. VALS is the only organisationfunded by the Federal Government to deliver Aboriginal and Torres Strait Islander Legal Services in Victoria.It was established in 1973 and provides referral, advice and information, and duty or case work assistance in criminal, family and civil law, to Aboriginal and Torres Strait Islanders in Victoria.
  10. VALS’ solicitors are complemented by Client Services Officers who ensure a strong client focus by providing a bridge between the legal system and the ATSI community, providing culturally relevant and safe information to the client, solicitor and relevant agencies including social support organisations and State and Commonwealth Government departments.

DEMAND PRESSURES

  1. Over the past decade the Victoria Government has strengthened its effort to improve outcomes for Aboriginal Victorians. The Victorian Aboriginal Justice Agreement which is a key plank of the whole of government Victorian Aboriginal Affairs Frameworkhas driven progress towards closing the gap in justice outcomes. However ATSI people continue to be seriously over-represented in the justice system. ATSI young people are three times as likely to be processed by police[4]and in 2011-12 they comprised 15% of those receiving a Youth Justice Centre Order compared to their population share of about 1%.[5] ATSI people more generally are 20 times as likely to return to prison under sentence within two years of release.

While in absolute numbers Victorian Aboriginal women are less likely to be imprisoned than Victorian Aboriginal men, their level of over-representation in remand is similar to that of Aboriginal males and their rate of imprisonment compared with non-Aboriginal women is significantly higher than the rate of over-representation experienced by Aboriginal males. The impact of this on immediate and extended families is obvious and contributes to the intractable inter-generational cycle of disadvantage experienced by Aboriginal people.[6]

  1. Growth in demand is expected to continue due to:
  2. Higher than average growth of the ATSI population anda lower median age.[7] The 2011 census shows that Victoria’s ATSI population has grown by 26% since the 2006 census andis growing by 4.7%annually, which is almost twice the rate of previous estimates.[8]The percentage growth of Victoria’s ATSI population was only exceeded by the Australian Capital Territory. By 2021 the Victorian ATSI population is expected to reach approximately 50,000[9]. The 2011 census also showed that the median age is 22 years, compared to 37 years for the general population.[10] Younger people are more likely to have contact with the criminal justice system and face a greater risk of a lifetime of offending.
  3. Changes in sentencing policy and a strengthening of effort in areas such as child protection and family violence which result in more Aboriginal people having contact with the justice system.
  4. Change in the complexity of matters dealt with requiring greater intensity of effort, particularly in relation to mental health and co-morbidity.
  5. Adjustment in service delivery policies of Victorian Legal Aid and other community legal centres, in response to cost pressures, which has a flow on effect on client demand for VALS’ services.
  6. Growing demand for VALS’ services is a product of these demand drivers. Since 2009-10 casework has increased by approximately 8.7%, and if 2012-13 trends continue will increase by a further 7.6%, to 3,000 in this financial year alone. Demand for advice and information is also growing and again if 2012-13 trends continue will increase by approximately 8% this financial year to around 8,800.
  7. Failure to meet demand growth will compromise efforts to achieve COAG’s Close the Gap goals. This is particularly so because ATSI women and young people are increasingly and disproportionately coming into contact with the justice system and are more likely to be in remand or receive a custodial sentence. Incarceration of women has a severe impact on children and extended families, while young people who are incarcerated are less likely to participate in education and training, establish a foothold in the labour market and build positive social networks.

ADEQUATE FUNDING

  1. Funding and indexation provided by the Commonwealth is now significantly less than consumer price index movements so provides very limited capacity to deal with cost pressures, let alone match population growth projections.
  2. The inadequacy of funding to ATSILS has been recognized in reports, including the:
  3. Office of Evaluation and Audit Report 2003 which indicated that ATSILS required an additional $25m to achieve funding levels similar to Legal Aid Commissions.
  4. Strategic Review of Indigenous Expenditure (Feb 2010 p14) which states that …”funds freed up as a result of this review be directed to a range of measures – community safety/legal assistance, capability development, professional development…”
  5. ‘NGO Price Indexation’ reportby The Allen Consulting Group (2008) which said that the price index for Victorian NGOs be set at 4.2%, which is three times the 1.5% ATSILS currently receive.
  6. ATSILS funding lags well behind legal aid, with some studies estimating that legal aid receives $145 compared to just $27 per case handled by ATSILS.
  7. Failure to provide adequate indexation impacts on the quality of service and accessibilityfor clients because:
  8. Capacity to meet the market for legal salaries and to recruit and retain skilled staff is severely compromised.
  9. Costs associated with service provision in rural and remote areasare higher, limiting availability.
  10. Higher operational costs such as utilities, fuel, cars and technology impact on service delivery capacity.
  11. Cultural barriers and the severe disadvantage experienced by the client group require greater intensity of effort which comes at a cost.
  12. Increases in the size of caseload can impact on timeliness and quality of case preparation and cost pressures can affect the quality of supervision.
  13. Inability to service the full range of matters can result in prioritization of criminal matters at the expense of civil and family matters, such as child protection, family law, intervention orders and guardianship, posing the danger that the latter will escalate to criminal acts.
  14. While adequate indexation will go some way toward addressing current cost pressures it is not in of itself sufficient to meet the demand growth outlined in paragraph9 above. A deeper and more fundamental review of funding mechanisms is required. VALS is aware that this is a medium term exercise which must involve both the Australian and State and Territory Governments, particularly as policy and practice within State and Territory jurisdictions in areas such as sentencing policy, efficiency of courts and strengthening of responses in child protection and family violence all impacts on costs to ATSILS. We suggest that such a review is scoped early in 2013 and following consultations is developed in partnership with ATSILS, for implementation in 2014-15.

SAVINGS AND OTHER EFFICIENCIES

  1. ATSILS have three roles. They ensure Aboriginal people receive their fundamental right to be represented before the law; they work to provide information and advice to the community on legal and other justice matters; and they provide policy and law reform advice to the Government based on consultation with and extensive understanding of their constituent communities.
  2. These roles have a considerable downstream budget impact through reduction in rates of imprisonment and through the broader social return associated with a more productive, safe and secure community. Imprisonment is estimated to cost $1309 per person per week so a 10% decline in the ATSI prison population will in turn save $10m.[11]More broadly, the social return on investment in the Victorian Aboriginal Justice Agreement has been estimated at $22-$26m in 2009/10 alone.[12]
  3. VALS also believes that there is scope to create efficiency savings through:
  4. Regionalisation and decentralization of services
  5. Facilities for remote conferencing
  6. Streamlining of reporting
  7. Funding for non legal alternatives such as Alternative Dispute Resolution which can save on court costs and prevent offending
  8. Greater efficiency in court processes.

RECOMMENDATIONS

  1. VALS is seeking consideration of:
  2. Immediate annual indexation of ATSILS budgets of 3.1% to maintain current levels of service delivery and help meet the costs associated with the increased complexity of matters dealt with. In Victoria this level of indexation is estimated to cost an additional $57,000 in 2013-14; and
  3. Development of a funding model that recognises increases in demand and changes in the mix and complexity of matters dealt with, for implementation in subsequent budgets.We suggest that such a review is scoped early in 2013 and following consultations is developed in partnership with ATSILS, for implementation in 2014-15.
  4. VALS appreciates the opportunity to make this submission and looks forward to the opportunity for further discussion particularly in regard to the development of a funding model that will ensure sustainable provision of legal services for Aboriginal and Torres Strait people in the future.

[1](Weatherburn et al, Prison populations and correctional outlays: the effect of reducing re-imprisonment (Report on Contemporary issues in crime and justice no 138, NSW Bureau of Crime Statistics and Research, December 2009)

[2]Nous Group Evaluation of the Aboriginal Justice Agreement phase 2, 2012

[3]Australia’s National Human Rights Action Plan 2012, p33.

[4]Victorian Government Indigenous Affairs Report 2010-11, p58

[5]Youth Parole Board Annual Report 2011-12, Table 8

[6]Nous Group 2012,Appendix E

[7]Note these calculations are based on an ATSI Victorian population of 37,991 as reported in ABS media release 21 June 2012. Preliminary estimates adjusted for ATSI undercount, cat 3101, indicate the population may be as high as 47,327.

[8]DPCD website, Population profile- Quick facts

[9]ABS cat 3238 Experimental estimates

[10]ABS cat 3238, 2011 census

[11]Weatherburn et al, Prison populations and correctional outlays: the effect of reducing re-imprisonment (Report on Contemporary issues in crime and justice no 138, NSW Bureau of Crime Statistics and Research, December 2009

[12]Nous Group 2012