Walton, Alastair --- "The Budget and the Aboriginal Legal Services: What are the Needs and Roles?" [1985] AboriginalLawB 57; (1985) 1(16) Aboriginal Law Bulletin 1

	Home \| Databases \| WorldLII \| Search \| Feedback Aboriginal Law Bulletin

In August this year, the Federal Labor Government Introduced its third annual budget to Parliament. The Department of Aboriginal Affairs, which funds the Aboriginal Legal Services (ALS's) across Australia, has been set absolute priorities in its 1985-86 budget-'safe drinking water, adequate shelter and improved health forAborlginals in remote areas'.[1] The budget has been drawn up in a climate of economic restraint.[2] So how did the ALS's fare in the latest budget and what is their future?

It is fifteen years since 1970, when the first ALS was established in Redfern, Sydney. In those years nineteen services have emerged and consolidated into an Australia wide legal-aid scheme for Aboriginal people. The Department of Aboriginal Affairs (DAA) has, for the 1985-86 term, allocated $12,285,715 towards the financing of the services. For a breakdown of this figure refer to the table on page two.

Some ALS adminstrations are happy with their allocation. Some are not. The responses to their various slices of the cake raise the questions: one, what is the process by which the budget is formulated? Two, what criteria are used to determine the nineteen ALS's allotments? In particular, what is the procedure for deciding the 'briefing out' allocation?

For instance on a state by state basis the 1981 census indicated that Queensland had the highest total of Aboriginal and Torres Strait Islander population.[3] The list in descending total was:

If the budget table is referred to, the state with the highest allocation for briefing out is Western Australia. Below is a table of the various states, in descending order, in relation to their total briefing out allocation with an approximate per capita total in brackets.

As can be seen, there are extreme differences in the amount per capita. This can signify two matters at this stage and they are: one, the Victorian people are very well catered for when compared to New South Wales for instance; two, population is not a criterion for distributing or determining funds for briefing allocations.

Another criterion that can be looked at is the percentage of the briefing out allocation in relation to each ALS's budget. It the Redfern ALS budget and briefing allocation are compared to the like budget of the South Australian ALRM, the ALRM briefing out allocation is 400 per cent greater. Redfern has a service area population of 21,400 people according to DAA sources (Redfern ALS say it is 64,550 people) while the 1981 census totals the South Australian population at 9,825.

The ALS's Speak

When the Redfern ALS was contacted to comment on the budget, a spokesperson said the budget overall was not sufficient and the briefing allocation of $40,000 was entirely inadequate and the requirement was $310,000 if the ALS was to deliver an adequate and full legal service to the Aboriginals in the area of their responsibility.

When the South Australian ALRM was spoken to a representative believed the budget had not fulfilled their expectations and that the necessary services which needed expansion, such as to the country areas like Coober Pedy, were not realised. The ALRM was serving country areas from its Adelaide office and its briefing allocation just covered criminal work. Which has the effect that areas such as land rights, discrimination, environmental law and commercial law, were not being adequately serviced. In addition some of the rural court circuits had been increased which meant additional trips for solicitors, which required an increase of resources and also left the Adelaide office without full service for longer periods.

The Adelaide representative was also concerned about how the Harkin Inquiry into Legal Aid would affect matters in the future.

To gain further opinions on how the budget was affecting the ALS's other spokespersons were contacted.

The QEA ALS operates from a Brisbane office and serves 18,000 Aboriginal people, according to their representative. They were not sure how they could cope with a briefing allocation of only $16,000. There was discussion of cutbacks and a belief that the ALS's were being 'squeezed'.

In Tasmania, Karen Brown, the ALS administrator, said that funding was 'okay' though the briefing out allocation had dropped since last financial year, despite an increase in the budget and a second lawyer.

The recently appointed administrator for the Northern Australian Aboriginal Legal Aid Service (NAALAS), Adrian Conroy. was pleased with both the budget and briefing allocation.

Across to Western Australia and the Executive Officer of the ALS indicated that the briefing out allocation had remained at the same level overseveral years while the ALS's needs were not declining.

The Executive Officer was disappointed with the budget because it d id not allow new rural services to be established, which were very much a requirement. Furthermore, funding had not been given to enable the ALS's statewide executive committee, of thirty one people, to meet twice a year as is constitutionally required. Overall there was only $1,500 a year to organise and subsidise the two meetings and elections to the committee.

In Victoria the ALS spokesperson referred to the denial of funding for a regional office and legal education program which had been requested every year, forth e last four years. In addition, the VALS delegate was of the view, ALS staff were not receiving the same salaries and conditions as staff in other Aboriginal organisations both state and federal. One body of comparison was the Department of Aboriginal Affairs. The VALS representative also mentioned that they were anxious about the Harkin Inquiry but were resigned to having to just wait.

A table of the budget positions of Australia's Aboriginal Legal Services, as at September, 1985
State / Legal service	1984/5 Budget allocation	1984/5 Briefing allocation	1985/6 Budget Est.	1985/6 Briefing out allocation
NSW ALS Redfern	1,313,300	40,000	1,413,900	40,000
WALS	528,900	15,000	549,800	16,500
SMDALA	310,508	42,550	326,400	25,000
SCALS	301,400	13,000	311,200	13,500
	2,454,108	110,550	2,601,300	95,000
WA ALS of WA	1,973,597	270,000	2,156,400	270,000
SA ALRM	1,084,752	120,000	1,151,700	161,000
NT NAALAS	720,000	81,400	803,500	50,000
KRALAS	221,600	-	288,000	23,740
CAALAS	1,043,000	60,000	943,000	62,000
Pitjantjatjara	191,500	44,000	194,315	44,000
	2,176,100	185,400	2,228,815	179,740
Qld QEA	746,200	16,000	704,600	16,000
QEB	333,700	10,000	327,600	16,000
QEC	413,400	15,000	429,600	15,000
QED	432,250	25,000	482,900	25,000
Njiku Jowan	293,850	15,000	324,000	25,000
FNQ	318,100	14,700	305,400	14,700
	2,872,500	99,200	2,918,500	107,700
Vic VALS	838,900	181,000	857,000	185,000
Tas TAC, Inc.	343,570	70,000	372,000	62,500
Total	11,744,527*	1,051,150	12,285,715	1,060,940
* The actual expenditure for 1984/5 was actually greater, over $12 million

Financial Constraints

Overall most people were not satisfied with the funds they received. They questioned their ability to provide a full adequate service. Many also introduced their uncertainties in referring to the Harkin Inquiry.

The role and services that any ALS can provide are determined by its staff, community support and in the end, its resources. Funding lathe lubricant which allows the life blood of the ALS to flow. The budget table has presented some interesting figures that need explanation.

Some of the representatives of the ALS's contacted believe their ability to service the population is being curtailed. They are being restricted to criminal work which is not the only legal need of the Aboriginal population.

The monetary link between DAA and the ALS's is a powerful lever of control that has always been an obvious area of 'tension(s) inherent in the relationship between the ALS's and their funding source'.[4] As one source has written, 'although the services are said to be "autonomous", their operations are hedged in by a number of Departmental constraints.'[5]

Furthermore, forward planning for ALS's, which is good management, ‘is made difficult, if not impossible, by the fact that the services make annual submissions to government for funds and receive annual allocations.’[6] Triennial year funding has been suggested and noted but has been refused by both the Fraser and Hawke governments.

Any notion of self-determination or self-management is disregarded if long term planning is not recognised or encouraged.

In consideration of these factors, the Harkin Inqui ry must be discussed. Due to the power of the DAA to shape the ALS's, the outcome of the Harkin Report, which will be used by the DAA in its policy decisions, is of great importance. However, the Harkin Report is shrouded in secrecy and its find[7]ings can only be suggested.

The Harkin Report

The Harkin Legal Aid Inquiry was ‘engaged in August 1983 to enquire into the most effective ways of ensuring that Aboriginals have adequate access to legal aid.’

Mr Joe Harkin has supposedly almost completed his final report for tabling in the Commonwealth Parliament, by the Minister for Aboriginal Affairs, Mr Clyde Holding.

According to the terms of reference, the Harkin Inquiry was 'established in order to establish effective role definitions and co-ordination among the ALS's and the other legal aid agencies.' In addition, these terms were qualified by investigate ng the roles and responsibilities, the means necessary to improve co-ordination and co-operation and the resources necessary to provide a full and adequate legal service for Aboriginals.[8]

Mr Harkin has made interim reports in regard to the North Australian Aboriginal Legal Aid Service and the Queensland Aboriginal Legal Services. Furthermore, special reports had been provided to the Minister on matters relating to the operations of the South Coast Aboriginal Legal Service, West Australian Aboriginal Legal Service and the Pitjatjantjara Legal Service.

Mr Harkin has been described as an astute government official who is a seasoned bureaucratic operative and campaigner. He was responsible for setting up the Australian Legal Aid Office in the mid-seventies while Lionel Murphy was Attorney-General.

Mr Harkin's mode of operation has been to visit all the ALS's to obtain data and then follow up the information received with independent inquiries. One ALS solicitor commented that the inquiry was conducted without apparent openness and without an opportunity for reply.

Some suggested outcomes of the Harkin Report are that civil practices in ALS's will not be established. Civil work may be referred to 'factory firms'. Thus field officers will be used in conjuntion with existing ALS's and private practitioners. This inevitably means increased training for field officers who will then take on various'smaller' legal enquiries such as social security matters.

These factors suggest ALS's could be restricted to criminal law work thereby limiting their 'political' profile and their relationship to the Aboriginal community. Which is the opposite to the view that the ALS-community relationship can be built upon if an overall legal service existed for the 'overall' social needs of that community.

Some critics of the ALS's believe they are administratively ineffective and wish to use this point to depoliticise the ALS's.

There are certainly to be more recommendations made by Mr Harkin but at this stage they can only be further guesswork. The secrecy of Mr Harkin's proceedings have excluded debate in the public arena.

The Minister's thoughts

The Minister, Mr Clyde Holding, will of course figure prominently in anyaction that is an outcome of the Harkin Report. Therefore his views on the ALS's are important. In a recent interview (3 September) Mr Holding had the following to say:

Alastair Walton: Aboriginal people have been said to have the highest rates of imprisonment for any ethnic group in the world. Any attempt to overcome this is undoubtedly a high priority. Do you plan to Increase the budget in Aboriginal Legal Services?

Clyde Holding: No. There won't be any increase in budget this year in view of the economic restraint. So basically throughout the whole portfolio funds are basically staying at the same level, with an inflation factor built in and important existing developing projects being maintained. So, no significant increase for Aboriginal Legal Aid.

Holding: Well, I'm still waiting to receive it. I haven't received it as yet. We are waiting for that report in order to reassess their whole role in relationship to Aboriginal people. To evaluate that in spending funds, in areas of prevention.

We've got to address, I think-seriously - one area not addressed in the past - the social factors, that produce the behaviour which lead to charges against Aboriginal people with breaches of the law. If we can hit the cause rather than just providing endless legal representation for people, many who are in a cyclical pattern, then I think in the long term that's a greater benefit for Aboriginal people, than just simply doing it up at the legal aid end.

'Crime fighting'

During the recent discussions relating to a further violent Aboriginal death in Western Australia, the West Australian newspaper and the local preacher at Mullewa blamed alcohol as the 'social factor' that killed 'Bing' Simpson and caused 'mob' fury. The WA opposition spokesperson for police matters, Ian Thompson, even blamed the ALS for producing a situation that would allow blacks to be 'cheeky, precocious and provocative'.

In a recent National Times article, 'Aborigines and the Grog Factor', by Duncan Graham (11-17 October 1985, p. 20), a University of WA anthropologist Pat Baines is interviewed as an authority on Aboriginal 'social factors'. Interestingly, not one Aboriginal person is quoted. The reasons for Aboriginal behaviour are cited as unemployment, boredom, poor health, overcrowding, poor housing, discrimination and a lack of land rights. Are these more symptoms or causes? Is there any more need for studies of 'social factors' in relation to the Aboriginal people? Their views have been expressed many times, in many ways, by many mobs. Land and self-determination with the resources that are due to them to do what they want is the common theme. Perpetual paternalism and study will not affect the prison figures.

[1] Aboriginal Affairs, Government expenditure on Aboriginal Programs, 1985-86. Commonwealth of Australia, 1985.

[3] Department of Aboriginal Affairs Annual Report 1983-84, AGPS. Canberra, 1984. p. 88.

[4] Gregory Lyons, 'Aboriginal Legal Services', in P. Hanksand Keon-Cohen, B.(Eds.), Aborigines and the Law, Allen & Unwin, Sydney. 1984, p. 141.

[7] Correspondence from Kim Wilson, Senior Private Secretary, Minister for Aboriginal Affairs, 10 September 1985.

Aboriginal Law Bulletin

Walton, Alastair --- "The Budget and the Aboriginal Legal Services: What are the Needs and Roles?" [1985] AboriginalLawB 57; (1985) 1(16) Aboriginal Law Bulletin 1

The Budget and the Aboriginal Legal Services: What are the Needs and Roles?

The ALS's Speak

A table of the budget positions of Australia's Aboriginal Legal Services, as at September, 1985

Financial Constraints

The Harkin Report

The Minister's thoughts

'Crime fighting'

The Budget and the Aboriginal Legal Services:

What are the Needs and Roles?