Indigenous Law Bulletin
by John Boersig
The challenge of providing high quality legal services to Indigenous people in the context of shrinking financial resources is a keen issue for Aboriginal and Torres Strait Islander Legal Services (‘ATSILS’). ATSILS provide a range of legal services including criminal defence, domestic violence advocacy, family and civil law advice, and native title work. Insufficient money is being allocated by the Federal Government to the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) and as a result ATSILS remain chronically under-funded to meet the demand of Indigenous people for legal services. These funding shortfalls result in high staff turnover rates with concomitant loss of experience and expertise. Wage levels at most ATSILS are notoriously low in comparison to other legal aid service providers, and little relief would seem to be forthcoming from government. The problem is not confined to disparities between lawyers’ salaries but extends to field officers and administrative support staff. The issue has repeatedly been drawn to the attention of ATSIC at both regional and state levels, and has been acknowledged as a problem by the ATSIC Commissioners.
The important role ATSILS play in the delivery of legal services to Indigenous people was acknowledged in the Royal Commission into Aboriginal Deaths in Custody. Given the high incidence of police contact and incarceration rates the need for representation continues. In this context Indigenous people have a right to access high quality legal advice and representation from Indigenous legal service providers. This can only be achieved if the staff profiles of ATSILS reflect the experience and professionalism of non-Indigenous legal aid services.
Over the past five years there has been no significant increase in Indigenous legal service budgets in NSW, and the monies allocated for higher court matters has remained unchanged. In Victoria it has been at least three years since any additional funds were provided. The funding disadvantage is no less problematic in other States, as increasing demand for services outstrips financial resources. Recent changes to the fringe benefit tax scheme, which used to enable ATSILS funding to go further, have put further pressure upon the ability to maintain staff salary levels, particularly for experienced staff. Current funding arrangements make no provision for annual salary increments or promotion — any additional remuneration must come from within budget (often by drawing on transient savings arising from staff turnover). In contrast, the Legal Aid Commission in NSW recently negotiated a 16 percent increase over three years.
A simple comparison between lawyers’ salaries (based on equivalent duties) illustrates this problem. A senior solicitor in NSW with the ATSILS of fifteen years experience will earn between $45,000 and $55,000 per annum. A similar position with the Legal Aid Commission would place that person on $65,000 plus benefits. A further example arises for field officers who are paid between $30,000 and $35,000 per annum, while a similar liaison position in a NSW state government department pays $38,000 to $42,000 plus benefits.
Inadequate funding to ATSILS can significantly impact on service provision. ATSILS should not be seen as a training ground for new lawyers who arrive after graduation and leave within a short period of time, having become attractive as experienced lawyers to employers who can provide better wages (particularly legal aid providers). One ATSILS in rural NSW lost eight lawyers in the period of one year. Another lost five lawyers in the same period. In Victoria ATSILS lawyers recently went on strike over the issue. The problem of finding staff in rural areas is even more difficult. One senior lawyer outlined the issue in this way,
The basic problem is that our grant of aid has been stable for some three years. During that time our management has not even paid a cost of living adjustment. Our current position is difficult with some three positions being vacant and very few people applying. To run a practice as large as ours you need a reasonable mix of experienced people to do cases which are complex.
The retention of experienced, culturally aware staff is crucial to providing the best service to Indigenous people. It takes some years to train ATSILS lawyers, not simply to be the good advocates, but to absorb and understand the culture of the people whom they represent. Most lawyers in the ATSILS are not Indigenous. Whilst field staff, board members and administrative staff will assist in the education of non-Indigenous staff, this is a process which takes some time. The high turnover of lawyers clearly impacts upon this process and therefore the quality of legal representation.
Benchmark standards for salary levels and qualifications have already been established by non-Indigenous legal service providers. ATSILS throughout Australia are striving to meet these standards. In order to retain experienced staff major legal aid providers have grading systems, incremental salary increases and provide opportunities for career advancement. Similarly a number of ATSILS have negotiated Awards and Enterprise Bargain Agreements, notably in Western Australia and Victoria. ATSILS in NSW are preparing to enter negotiations, although it is apparent that current funding structures within ATSIC may not be able to respond with an injection of funds.
Immediate action needs to be taken by ATSIC to avoid breakdown and crisis within the Indigenous legal service sector. ATSILS appreciate that there are a number of funding issues that confront ATSIC, including a contraction of government spending in the legal aid sector. However, bearing in mind the high level of Indigenous contact with police, increasing involvement in the criminal justice system and continuing high incarceration rates, it is clear that support for ATSILS should be higher on the funding priority list. Once this is occurs and the wage disparity with other legal service providers is remedied, professional Indigenous legal services will be secured.
John Boersig is a representative of the Coalition of Aboriginal Legal Services of New South Wales.
 JP Harkins, Inquiry into Aboriginal Legal Aid: Report for the Department of Aboriginal Affairs (1986) and Aboriginal Research and Resource Centre of the University of New South Wales, Review of Legal Services for Aboriginal and Torres Strait Islander People in New South Wales (1996).
 ATSIC Commissioner meeting August 2001and the State Aboriginal Advisory Committee meeting in October 2001.
 Royal Commission into Aboriginal Deaths in Custody, Final Report (1991) Vol 3, 22.4.52. See also House of Representatives Standing Committee on Aboriginal Affairs, Aboriginal Legal Aid (1980).
J Baker, ‘The Scope for Reducing Indigenous Imprisonment Rates’ (2001) Crime and Justice Bulletin No 55.
 Hal Wootten recently reviewed higher court arrangements in NSW. The review underscores the role of the Indigenous legal service in providing representation at all stages of the criminal justice system and the need to ensure high standards of service. Hal Wootten, Representation of clients of Aboriginal Legal Services in the Higher Criminal Courts of New South Wales (1999).
 Changes to the fringe benefits tax scheme came into effect on 1 April 2001. ATSILS are currently in negotiations with the Federal Government after promises that a compensation package would be provided to cushion the impact of the changes.
 Commenced 1 January 2001. At the same time the Legal Aid Commission announced increases of 17.5 per cent to counsel's fees and the cost of psychiatric reports rose from $360 to $500. ATSILS in NSW received no increased funds to meet these extra costs.
 Based on a table of figures supplied by the Legal Aid Commission of NSW dated 1 March 2001.
 Based on a table of figures supplied by the NSW Police Service dated 20 September 2001.
 Victorian Aboriginal Legal Service, Press Release (11 November 2001).
 Pers comm, email (12 September 2001).
 Note also that in the Northern Territory salary levels for all staff are graded in accordance with an Enterprise Bargain Agreement scale.
 In September 2001 the National Centre for Legal and Preventative Services, ATSIC, advised regional offices that ‘[t]here can be can be no expectation that ATSIC will meet any cost increases associated with such industrial agreements’ due to limited overall funding capacity.