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Robbins, Jane --- "Aboriginal Legal Aid Funding: Discriminatory Policy or a Failure of Federalism?" [2009] IndigLawB 3; (2009) 7(10) Indigenous Law Bulletin 15
Aboriginal Legal Aid Funding: Discriminatory Policy or a Failure of
Federalism?
By Jane Robbins.
The ALRM Complaint to the
UN
In September 2008, the Aboriginal Legal Rights Movement
(‘ALRM’), the contracted Aboriginal Legal Aid service provider
in
South Australia (‘SA’), submitted a complaint to both the UN
Committee on the Elimination of Racial Discrimination
and to the Special
Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous Peoples, James Anaya. The substance
of ALRM’s submission is
that inadequate funding of Aboriginal legal aid services by State Government and
Commonwealth Government
is discriminatory in effect, and constitutes a breach of
Article 2 of the International Convention on the Elimination of All Forms of
Racial Discrimination (‘CERD’).
The complaint makes a
case that Government funding for ALRM’s Aboriginal legal aid services is
inadequate. It also emphasises
the differential treatment by State and Federal
Government of Aboriginal and Torres Strait Islander Legal Services
(‘ATSILS’),
such as ALRM, compared to Legal Aid Commissions
(‘LACs’), which provide mainstream legal aid services. Some of the
main
points made in the complaint are:
• Commonwealth Government
funding for Aboriginal legal aid has been static since 1996. This amounts to a
40% loss of income
to ALRM 40% in real terms;
• Over this period, the
level of demand for ALRM services has increased by 100%;
• In the same
period, funding for mainstream LACs has increased by 120%;
• The rate
of imprisonment of Aboriginal people has continued to rise during this
period;
• The SA Government does not contribute to ALRM funding; in
contrast, it contributes funding to LAC services on a dollar for
dollar
basis;
• The inadequate funding provided to ALRM prevents it from
fulfilling its mandate. Because ALRM cannot provide effective support
to many
clients, many Aboriginal people are denied equitable acess to jusitce;
and
• Unlike LAC services, ATSILS contracts have been tendered
out.[1]
ALRM is not alone in
facing a funding crisis; this is a problem reported by ATSILS nation-wide. But
neither State nor Federal Government
can claim to be unaware of this situation.
In recent years, several inquiries have examined these issues and concluded that
the funding
of ATSILS is a serious problem that must be addressed by
Government.[2]
The
Inadequacy of ATSILS Funding
The ability of ATSILS such as ALRM to
provide effective legal support to Indigenous clients is a matter that is all
the more urgent
in the context of the disproportionate number of Indigenous
people in the Australian criminal justice system. In 2007, the Steering
Committee for the Review of Government Service Provision published the
following statistics:
• between 2000 and 2006 Indigenous
imprisonment rates increased by 31.9%;
• between 2002 and 2006 the
imprisonment rate increased by 34% for Indigenous women and by 21.6% for
Indigenous men;
• in 2006, Indigenous people were 12.9 times more
likely than non-Indigenous Australians to be imprisoned
(age-adjusted).[3]
Research
indicates that a higher percentage of Indigenous offenders are given custodial
sentences compared with non-Indigenous offenders
as a result of ‘a higher
rate of conviction for violent crime and higher rate of
re-offending’.[4] It has also
been shown that ATSILS are ‘the legal aid body of choice’ for most
Indigenous legal aid. In 2000-2001, 89%
of Indigenous legal aid cases were taken
on by ATSILS; only 11% were taken on by
LACs.[5] Under these circumstances,
ATSILS face a situation where their resources are static, yet their client group
is increasing in number.
Further, ATSILS require support to provide services for
a higher than average proportion of serious offences. Reflecting on this,
Cunneen and Schwartz have commented that the ‘significant lack of
parity’ between ATSILS and LAC funding has ‘severe
ramifications.’[6]
According to ALRM CEO, Neil Gillespie, insufficient resources directly
impact upon ALRM operations. He refers to ‘juniorisation’
of staff,
a practice of replacing senior staff with junior staff to cope with inadequate
funding.[7] This leads to a situation
where the ALRM has few senior, experienced legal officers to deal with what are
often quite serious cases.
The notable disparity in employee salaries between
ATSILS and LACs was reported by the Joint Committee of Public Accounts and Audit
(‘JCPA’) in its 2005 Report Access of Indigenous Australians to
Law and Justice Services.[8]
Similarly, the Australian National Audit Office reported in 2003 that
there is a flow of staff from the ATSILS to the LACs because of
substantial variation in pay rates.[9]
It has been shown that, despite lower levels of pay, ATSILS lawyers
have higher workloads.[10] The lack
of funding impacts on other areas of practice: in a 2003 submission to the
Senate Legal and Constitutional References Committee,
ALRM expressed concern
about its capacity to ‘offer adequate rates for private lawyers’,
revealing that it was only able
to pay a fee 11% lower than paid by the Legal
Services Commission.[11] This was
seen as compromising ALRM’s ability to provide a quality service to
clients. The organisation is limited in its capacity
to supplement its own legal
expertise with that of private practitioners who are brought in for special
purposes. This disparity
in funding adds up to a situation where ATSILS
‘provides a cheap form of legal representation for Indigenous
people’.[12]
A
Federal Dispute?
In the complaint to the UN, ALRM makes a strong case
that the SA Government’s failure to contribute funding is a major factor
in its financial difficulties. According to Mr Gillespie, this is a federal
dispute over funding responsibilities. The Commonwealth
Government sees its role
as that of a ‘supplementary funder’, with the main responsibility
falling to state governments.
This view was confirmed by the Attorney
General’s submission to the JCPAA Inquiry in 2005.
[13] The SA State Government, on the
other hand, provides funding for mainstream legal aid; it regards Aboriginal
legal aid as a special
program that rests in the Commonwealth’s
jurisdiction.[14] Gillespie
writes:
This standoff or demarcation dispute is having a dramatic
effect on Aboriginal people accessing justice in our State. I understand
other
State and Territory Governments are in the same position. This is effectively
two Governments at loggerheads as to responsibility
to Aboriginal people.
[15]
It is the
distinction in treatment between Aboriginal and mainstream legal aid funding
that forms one of the most pressing arguments
in the ALRM claim of racial
discrimination. The differential treatment carries over into other aspects of
ALRM’s relationship
with the SA court system: while other legal aid
providers are exempted from court filing and transcription fees, ALRM is
required
to pay these costs. [16]
This is so even though most of ALRM’s work involves defending SA clients,
in SA courts, regarding breaches of SA State
law.[17]
The deleterious
consequences of this federal tension for ATSILS are clear. This raises the
question: what steps has the Commonwealth
Government taken to negotiate a better
outcome with state governments? As the Law Society of SA submitted to the JCPAA:
It is hardly for the ATSILS or the Law Society to be doing these
high-powered political manoeuvres as between the Commonwealth and
states on what
is essentially a federal issue.[18]
According to the Attorney General’s Department in 2005, the
Commonwealth has not approached state governments on this matter.
[19]
State/Commonwealth
Responsibilities
How has this situation come about? Section 51(xxvi) of
the Australian Constitution originally gave the Commonwealth parliament
responsibility for making laws for:
[t]he people of any race, other
than the aboriginal race in any State, for whom it is deemed necessary to make
special laws.
This meant that Aboriginal policy was an exclusive
State power. As a consequence of the 1967 referendum, the words ‘other
than the aboriginal race in any State’ were struck out. The success of
the referendum meant that the only reference to Aboriginal people was deleted
from the Australian
Constitution; yet what is often referred to as the
Commonwealth ‘race power’ was retained. Now, as a result, Indigenous
affairs policy
is a concurrent area of activity, requiring negotiations to take
place to allocate responsibilities between State and Federal
Government.
The Whitlam Labor Government of 1972-5 was the first to
embark on a large-scale expansion of the Commonwealth’s role in funding
Aboriginal programs. The Aboriginal Affairs (Arrangements with the States)
Act 1973 authorised the Commonwealth to make an agreement on Aboriginal
affairs with each State. [20] The
agreement struck with the SA Government expressly preserved
the
existing right of the South Australian Government to implement measures to meet
the special needs of the Aboriginal people in
the ordinary course of the
provision of services.[21]
This provision was typical of the agreements negotiated with other
states. However, in the Fraser era, an attempt was made to make
the delineation
of responsibilities more precise and to clarify states’ financial
responsibilities.[22] It was agreed
that state governments would provide ordinary services to Aboriginal people as
they would for non-Aboriginal citizens
of the state. The Commonwealth would
provide for the ‘special needs’ of Aboriginal people in relation to
‘the particular
or severe disadvantage due to Aboriginality’.
[23] This essentially vague
allocation of responsibility that underlies the assertion that the Commonwealth
is only expected to provide
‘supplementary’ funding for Aboriginal
programs. This has always proved unsatisfactory as a working principle and the
problem persists today. Despite the negotiation of many subsequent
State/Commonwealth agreements, and a commitment from all levels
of government to
a National Framework of Principles for Government Service Delivery to
Indigenous Australians in
2004,[24] tensions and ambiguities
remain characteristic of the federal relationship on Aboriginal
policy.
The Commonwealth Grant Commission considered the tensions
inherent in areas of shared federal responsibility in its 2001 Report on
Indigenous Funding. It argued that ‘Australia’s federal system
of government blurs service delivery responsibility’ and results in
‘some responsibility and cost shifting between governments’.
[25] A further point is directly
pertinent to the case of Aboriginal legal aid funding:
[t]he failure
of mainstream programs to effectively address the needs of Indigenous people
means that, in practice, Indigenous-specific
programs are being expected to do
more than they are designed and funded to achieve.
[26]
Federal States
and International Obligations
Australia’s federal system of
government poses some difficulty in relation to compliance with obligations
under international
instruments, notwithstanding the Commonwealth’s
unequivocal powers on external affairs in the Australian Constitution. It is the
Commonwealth Government that is a signatory to international agreements and
treaties, but this does not necessarily mean
that it administers the relevant
policy field domestically. In practice, the complex and multi-faceted
relationships between Commonwealth,
State and Territory Governments make the
political dimensions of the federal relationship as important as the legal
arrangements.
The Commonwealth Government does not always have unambiguous
control over a given policy issue.
ALRM’s complaint to the UN
regarding chronic under-funding is illustrative of this problem. Certainly, the
Commonwealth Government’s
failure to index or increase ATSIL funding over
the last decade is a matter that raises the question of its obligations under
CERD.
However, the Commonwealth has no direct control over State funding of
Aboriginal legal aid services. States are not signatories to
CERD in their own
right – so can they be nominated in a complaint? Past decisions by the
CERD Committee of the UN indicate
that federal arrangements do not abrogate
responsibility for international obligations. In 2000 the Committee issued the
following
comment in relation to another question on Australia’s
obligations:
The Committee reiterates its recommendation that the
Commonwealth Government should undertake appropriate measures to ensure the
consistent
application of the provisions of the Convention, in accordance with
article 27 of the Vienna Convention on the Law of Treaties, at
all levels of
government, including states and territories, and if necessary by calling on its
power to override territory laws and
using its external affairs power with
regard to state laws.[27]
In other words, it is the Commonwealth Government’s responsibility
to ensure that states comply with the standards of non-discriminatory
behaviour
laid down in CERD. Ultimately, the Commonwealth has the constitutional authority
to coerce states to comply with international
obligations under its external
affairs power, but this may be politically controversial. In 2001, the
Commonwealth Grants Commission
suggested that the Commonwealth should utilise
its financial resources to encourage states to consider the needs of Indigenous
people
as a priority in service delivery. An obvious strategy would be to
increase the use of tied grants or special purpose payments which
place
conditions on the states.
ALRM’s case to the CERD Committee draws
attention to a significant problem in Australia’s federal arrangements.
Aboriginal
programs are too often subjected to cost-shifting and disputes
between agencies about funding obligations as a result of concurrent
responsibilities of between levels of government. The CERD Committee now has the
opportunity to comment on whether these tensions
have impacted upon the
provision of Aboriginal legal services in a way that is racially discriminatory,
and whether they constitute
a breach of Australia’s international
obligations under CERD. As Cunneen and Schwartz comment:
[t]he issue
of the adequacy of legal representation for Indigenous people goes to the heart
of questions of access, equity and the
rule of
law.[28]
Jane Robbins
is a Senior Lecturer in the School of Political and International Studies and
Associate Head (Academic) of the Faculty
of Social Sciences at Flinders
University, Adelaide.
[1] Letter from Frank Lampard,
Chairperson ALRM to Ms Fatimata-Binda Victoria DAH, Committee on the Elimination
of Racial Discrimination
and Mr James Anaya, The Special Rapporteur Office of
the United Nations High Commission for Human Rights, Communication regarding
the discriminatory underfunding of the Aboriginal Legal Rights Movement in
Australia – a breach of
the Convention against Racial Discrimination,
September 16 2008, ALRM,
Adelaide.
[2] Office of Evaluation
and Audit (OEA), Aboriginal and Torres Strait Islander Commission, Evaluation
of the Legal and Preventative Services Program, (2003); Australian National
Audit Office, ATSIS Law and Justice Program: Aboriginal and Torres Strait
Islander Services, The Auditor-General Audit Report No. 13 2003-4 (2003);
Parliament of Australia, Senate Legal and Constitutional References Committee,
Legal Aid and Access to Justice, June (2004); Parliament of Australia,
Joint Committee of Public Accounts and Audit (JCPAA), Access of Indigenous
Australians to Law and Justice Services, Report No. 403, June
(2005).
[3] Steering Committee for
the Review of Government Service Provision (SCRGSP), Overcoming Indigenous
Disadvantage: Key Indicators 2007, Productivity Commission, Canberra (2007)
3.121.
[4] Ibid, Snowball and
Weatherburn (2006) 3.122.
[5] OEA
above n 2, 3.
[6] Chris Cunneen and
Melanie Schwartz, ‘Funding Aboriginal and Torres Strait Islander Legal
Services: Issues of Equity and Access’,
(2008) 32(38) Criminal Law
Journal 39.
[7] Neil Gillespie,
‘Justice through Aboriginal and Torres Strait Islander Legal
Services’ in Neil Gillespie (ed.), Reflections: 40 Years on from the
1967 Referendum (2007) 65,
67.
[8] JCPAA above n 2,
43-4.
[9] ONAO above n 2,
47.
[10] Cunneen and Schwartz
above n 6, 50.
[11] ALRM,
Submission to the Senate Legal and Constitutional References Committee Inquiry
into Legal Aid and Access to Justice (2003)
15.
[12] Cuneen and Schwartz
above n 6, 50.
[13] JCPAA above n
2, 60.
[14] Gillespie, above n 7,
66. The 2003 ANAO Report indicates that some limited funding made to ATSILS by
the Queensland and Northern
Territory governments, see above n 2,
47.
[15]
Ibid.
[16] Ibid
67.
[17] South Australia,
Parliamentary Debates, House of Assembly, 5 July 2007, 563 (Isobel
Redmond, Shadow Minister for
Justice).
[18] JCPAA above n 2
60.
[19]
Ibid.
[20] Jane Robbins and John
Summers, ‘Aboriginal Affairs’ in Andrew Parkin (ed.) South
Australia, Federalism and Public Policy (1996) 173, 177.
[21] Ibid
177-8.
[22] Ibid
179.
[23] Department of
Aboriginal Affairs, Principles for Future Provision of State Grants by the
Department of Aboriginal Affairs, 21 October
1982.
[24] Council of Australian
Governments, Communique of Meeting 24 June 2004, (2004), available
at
<http://www.coag.gov.au/coag_meeting_outcomes/2004-06-25/index.cfm>
at
1 November 2008,
[25]
Commonwealth Grants Commission, Report on Indigenous Funding (2001)
57.
[26] Ibid
65.
[27] Committee on the
Elimination of Racial Discrimination (CERD), Consideration of Reports
Submitted by States Parties Under Article 9 of the Convention: Concluding
Observations of the Committee on
the Elimination of Racial Discrimination.
Australia (2000) CERD/C/304/Add.101 19 April 2000, (7) 2, available at
<http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.304.Add.101.En?Opendocument>
.
[28]
Cunneen and Schwartz above n 6.
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