Rocks and hard places: Traversing the terrain of the community legal centre funding crisis

The economic argument for community legal centres is strong, and the Productivity Commission has recommended an immediate injection of cash to shore up their operations. Despite this, their funding is still being cut. Dr Chris Atmore (@ChrisPolicy; Senior Policy Adviser at the Federation of Community Legal Centres Victoria) outlines why CLC funding should be an election issue in the run-up to July 2.

This year’s Federal Budget brought no relief to community legal centres (CLCs). CLCs had been anxiously anticipating Budget papers since funding cuts were first flagged in the 2013 Mid-Year Economic and Fiscal Outlook, and confirmed in 2015 in the new five-year National Partnership Agreement.

Across Australia, 189 CLCs help well over 200,000 people annually who would otherwise fall between the cracks of our justice system. They cannot afford to pay for a lawyer, and often either do not meet the means test for legal aid or need help in a legal area that is better serviced by CLCs.

"These cuts reduce total annual CLC Federal funding to $30 million a year. That figure stands in stark contrast to Federal Government spending on its own legal assistance in 2014-15 of $728 million."

The National Partnership Agreement maps out Federal funding cuts to CLCs of 30% from July 2017 over the next three financial years. These cuts reduce total annual CLC Federal funding to $30 million a year. That figure stands in stark contrast to Federal Government spending on its own legal assistance in 2014-15 of $728 million. Indeed, the increase on Government spending from the previous year - $39 million - is more than the total annual funding all community legal centres will receive in future.

CLCs had been buoyed by the September 2014 Productivity Commission Access to Justice Arrangements Inquiry Report, which recommended an immediate injection of $200 million – of which $120 million should come from the Commonwealth - to address the urgent demand faced by the four publicly funded legal assistance providers in Australia: Legal Aid Commissions, CLCs, Aboriginal and Torres Strait Islander Legal Services, and Family Violence Prevention Legal Services. The Productivity Commission indicated that the $200 million was only the first necessary step, and recommended that detailed assessment be done to accurately ascertain sustainable levels of funding.

The Federal Government did not respond to the Productivity Commission report until the week before this month’s Budget, when late on a Friday afternoon it confirmed existing arrangements for legal assistance funding without any reference to the Commission’s funding recommendations.

The patchwork nature of CLC funding

Community legal centre work is excellent value for money. For every dollar spent by governments on funding CLC services, a benefit worth $18 will be returned (Economic Cost-Benefit Analysis of Community Legal Centres, Judith Stubbs and Associates, 2012).

Despite this, CLC funding has an increasing patchwork quality to it, while demand continues to rise. The funding picture for CLCs has always been complex, because both Federal and State/Territory Governments contribute, and until recently also administer, funds. (Under the National Partnership Agreement the Federal Government has now passed on administration and allocation of specific CLC funding to each State, putting them in the unfortunate position of having to make decisions about where to direct reduced Federal money.)

In recent years, Federal contributions have lagged behind. For instance in Victoria, the State Government currently contributes 60% of the total government share. In order to stay financially afloat, CLCs have sought to diversify sources of income, particularly via philanthropic sources and, in Victoria at least, via Legal Services Board project grant applications.

The changing politics of governments at both levels has also meant that one-off or limited-term funds can play a significant role in attempts to sustain community legal help. This is tenuous and not conducive to long-term planning. For example, the last three years of Federal funding uncertainty have seen several community legal centres forced to discontinue specialist family violence lawyer positions. Sometimes they have later had a partial reprieve and been able to cobble together enough funds to reinstate the position, but by then they must engage again in recruitment processes because the experienced staff member has had to move on. 

So why is it so hard for CLCs to be properly funded? It’s difficult for those of us who’ve been around CLCs for many years not to be dumbfounded about the lack of economic logic evident in the failure to fund the sector sustainably. But of course that is only part of the context. We know that as under-resourced advocates we act for marginalised people who often have little power or energy left over from daily battles to influence or even be heard by decision makers.

CLCs need to be more distinctly visible

It is also clear that CLCs aren’t visible or distinguishable enough in the media, or sometimes in government policy. One of the obstacles to publicising our particular clients’ needs is the common use of the term ‘legal aid’ as a synonym for legal assistance. In fact, the four broad forms of free public legal help comprise a mosaic in which the pieces have their own distinct character and largely complement each other. For example, unlike Legal Aid Commissions (who either assist via their own lawyers or pay legal aid grants to private lawyers), the other three types of legal service are independent and community-based. This makes us well suited to working with our local communities to provide suitably tailored innovative projects.

For example, both the Aboriginal Family Violence Prevention and Legal Service Victoria (FVPLS) and the Victorian Aboriginal Legal Service - who are, in Victoria, also CLCs - are the ‘go to’ services for Aboriginal clients because they are community controlled and culturally safe. FVPLS’s Sisters Day Out program is hugely successful (although still not securely funded) because it delivers its community legal education and legal help for women experiencing family violence within a day of ‘pampering’ and social activities for Aboriginal women held at different locations around the State.

For CLCs around Australia, family law and family violence are the two top areas of work. Free legal help provided by CLCs also prevents eviction, avoids clients spiraling into a vortex of debt and unpaid fines, protects workers’ rights, and helps with consumer, migration, social security and discrimination problems.

Other Victorian CLC projects include a legal clinic for taxi drivers, assisting African youth racially profiled by police, working with the Royal Women’s Hospital to identify and assist women at risk from family violence, and collaborating with a social worker to prevent victims of family violence from becoming homeless.

We are a thorn in the side of government

It is not paranoia to speculate that the fact that CLCs speak out on issues unpopular with governments might influence funding decisions. CLCs advocate strongly and often successfully for asylum seekers and refugees. We regularly unmask the appeals to law and order beloved of both major political parties (for example, Victoria’s Smart Justice campaigns). We defend the environment – or in other words, act for nature, as our Environmental Defenders Offices (EDOs) describe their work. Those EDOs have now lost their federal funding, and Federal Government efforts continue to try to remove charity status from environmental advocacy organisations like them, including most recently, Greenpeace. More broadly, the National Partnership Agreement has tied CLC federal funding to a gag on most advocacy except individual casework.

But as former Victorian Attorney-General Rob Hulls once acknowledged, it is CLCs’ role to be a thorn in the side of government. People who are passionate about injustice flock to work or volunteer with us. They want to change the world, and in their particular sphere of influence, they often do (rights for workers with cognitive disabilities, police brutality, ‘bringing them home’ from Nauru). The CLC sector continues to nurture senior advocates and future judges (including at least one current Justice of the High Court), and from this year’s new appointments alone has been the incubator for Victoria’s Principal Commissioner for Children and Young People, Victoria’s Equal Opportunity and Human Rights Commissioner, the Federal Disability Discrimination Commissioner and the Federal Human Rights Commissioner. 

We get caught between the two layers of government

Perhaps the best illustration here is legal help for victims of family violence. In Victoria, 20 CLCs provide some level of duty lawyer service at a total of 29 Magistrates’ Courts, primarily helping women and their children to obtain an intervention order. In the past ten years CLC family violence cases have increased by 490% to 9,857 in 2014-15.

And still, many victims cannot access legal assistance when attending court to obtain an intervention order. In 2014-15 there were 35,691 intervention order applications, meaning that only 28% of FV victims were able to get help from a specialist CLC duty lawyer. A big contributor to this gap is, as the Royal Commission into Family Violence report states, the reality that independent legal advice for victims is provided for almost none of the 66% of family violence intervention order applications that are made by police on behalf of victims. While police applications are usually easier for victims of violence, Victoria Police is not acting for them, and so the victim may need her own legal advice. This is rarely provided, in part because of lack of CLC resources.

Due to court demand, the CLC duty lawyer will also often be unable to provide ongoing assistance with various other legal issues arising from the victim’s experience of violence. These include credit and debt issues associated with economic abuse, tenancy, Centrelink and fines issues, victims of crime compensation (including urgent compensation claims to cover home security or relocation costs), family law, children’s issues and some property matters. Victims also often need ongoing advice about intervention orders (such as variations) and breaches after final orders are made.

Missing out on timely help with this raft of family violence-related legal issues compounds and prolongs the impact of victimisation, and can have serious financial, legal and safety consequences for adult and child victims. 

Despite all of these unmet legal needs, CLCs are not depicted in the Royal Commission Report as frontline family violence victim specialists in the same way as crisis centres or refuges. This means that Royal Commission recommendation 11 - that the Victorian Government provide additional funding to deal with the crisis in demand, including the $22.5 million not spent from the Royal Commission budget - does not encompass CLCs.

Indeed, although the Royal Commission notes the under-resourcing of CLC family violence legal assistance, other than recommending adequate funding for Aboriginal legal services (Recommendation 146), the only funding-related recommendation is for the Victorian Government to pursue the expansion of resourcing for duty lawyer services through the Council of Australian Governments (Recommendation 69). CLCs are not also recognised as key but significantly under resourced, non-court-based providers of family violence-related legal help.

From the Victorian Budget that followed the Royal Commission report last month, and which allocated $572 million to a family violence package, CLCs are to receive a one-year funding of $2.5 million.

The trend to financially marginalise CLCs' contributions to keeping women and children safe continues in the 2016 Federal Budget, which allocates $100 million over three years to family violence initiatives. As I write this CLCs have just learned that the broad public legal assistance sector will receive $10 million of that money, for three years. It is basic arithmetic that even if CLCs received all of the $33 million per year, it would still not compensate for the broader Federal cuts and the Federal Government’s failure to heed the Productivity Commission.

CLCs also join our broader family violence service partners in decrying the $100 million package as an attempt to divide and rule, and as a patently inadequate response to the recent costing of $12.6 billion a year to Australia of intimate partner violence alone (PwC Australia, A High Price to Pay: The Economic Case for Preventing Violence Against Women (November 2015)). Failure to address the funding shortfall to CLCs in this area is also fundamentally at odds with the National Plan to Reduce Violence against Women and their Children, which includes ensuring that intervention orders (obtained by legal advice and representation) are recognised across State and Territory borders.

It is indisputable that in Victoria at least, the onus is mainly on the Federal Government to provide more funds. However, if the new federal government is intransigent on legal assistance funding, it is likely that the question of who should bear the burden will be mired in the politics of federalism – and abused women and children will risk becoming political footballs.

What does this mean for CLCs?

We know that given the current circumstances, some CLCs stand to lose up to 70% of their federal funding (as the cuts are likely to be differentially applied). We know that specialist lawyer positions and innovative programs – including in family violence and in some of the most disadvantaged areas of the country - will be lost as a result of this ‘jobs and growth’ Budget.

Nationally, CLCs are already turning away at least 150,000 potential clients a year. Once the cuts bite, that number will blow out by at least another 36,000 people. That lack of legal help will be reckoned in widening inequality, poverty, and deteriorating health - including misery, injury and death.

CLCs, together with our broader community sector partners and legal assistance allies, will be looking for a foothold on less stony ground during the federal election campaign, and asking parties where they stand.  

Posted by Sophie Yates (@MsSophieRae).