Our Ask
Funding Cliffs – disability and migration legal services
National Legal Aid has two national services facing a funding cliff in June 2025 which will cause the services to close. To address this, we require:
- Immediate and ongoing investment of $18 million per annum to retain and expand the National Disability Insurance Scheme Appeals Program.
- Immediate and ongoing investment of $36 million per annum to retain the Permanent Protection Visa Program across Legal Aid Commissions and Community Legal Centres.
If this funding was to be cut there would be no available legal assistance service for highly disadvantaged clients - people with disability and at-risk migrants, including victim-survivors of domestic and family violence.
The NDIS Appeals Program currently supports over 300 clients with legal representation and over 2,300 legal advices per annum that assists people with disability to appeal a decision regarding their NDIS supports at the Administrative Review Tribunal (ART). There is currently an average of 700 NDIS Appeals applications per month and a backlog of over 4,000 matters. The Program not only assists people with disability to help ensure that they are accessing the supports they need, it also supports the efficient management of the ART in terms of providing advice around the merit of appeals and supporting people with disability to navigate the Tribunal process.
The Permanent Protection Visa Program was established in early 2024 and provides legal advice and representation to people appealing permanent protection visa decisions at the ART and the Federal Court. The Program aims to assist at risk, disadvantaged applicants to navigate the process. It also aims to support the ART and the Federal Court processes in terms of providing timely advice and representation that supports the reduction of the current backlog of appeal applications.
Supporting victim-survivors of domestic and family violence, particularly in rural and remote areas and prevention of service cuts
The $3.9 billion investment over 5 years via the National Access to Justice Partnership (NAJP) is welcomed. This funding retains current Legal Aid Commission services for people experiencing disadvantage, particularly victim-survivors of domestic and family violence. However, the NAJP funding did not expand Legal Aid Commission service delivery to victim-survivors of domestic and family violence and due to ongoing demand issues, Legal Aid Commissions are currently looking at restricting services and access as a result of the limited NAJP funding.
Legal Aid Commissions are the main providers of family law legal representation to people experiencing disadvantage, including victim-survivors, providing over 32,000 grants for legal representation nationally, 86% of which include a risk of domestic and family violence. Legal Aid Commissions are currently struggling to meet demand due toincreased workloads resulting from the Federal Circuit and Family Court of Australia (FCFCOA) case management reforms, the recent Family Law Amendments and low fees provided to private practitioners. This is leading to a market failure risk. Private practitioners deliver 72% of all Legal Aid legal representation.
This market failure is most critical in rural and remote areas of Australia. For example, in Queensland, there are 30 regional and rural communities with no available private practitioner and a further 22 communities with only one available private practitioner. In Western Australia, almost 80% of private practitioners are unable to accept new grants.
To address this market failure risk, we need:
- $30 million per annum to raise Legal Aid private practitioner fees to $200 per hour or 80% of the court fee scale.
In order to manage the ongoing market supply issues, Legal Aid Commissions will look at raising the private practitioner fees to $200 per hour regardless as to whether funding is received. This is likely to result in service cuts to victim-survivors of domestic and family violence of approximately 9,200 grants per year, representing more than a 25% reduction in services.
Delivering National Disaster Legal Assistance
Climate change has meant that many communities across Australia have been impacted by disasters. For example, in NSW over the past 4 years this has required delivering a high level of legal assistance across communities impacted by bushfires and floods with the Disaster Legal Assistance service delivering 12,400 disaster related assistances to over 5,000 clients.
Legal assistance is an essential part of preparedness and recovery and is a specialised area including insurance, housing and tenancy, income support and planning. The capacity to service demand is hampered by short term funding, with the regular loss of skilled expertise due to insecure employment and limitations in providing the long-term legal assistance that communities require.
New South Wales, Victoria and Western Australia have received temporary funding over the past two years to deliver and co-ordinate disaster response legal services for disaster affected communities. Queensland continues to deliver a minimal service, despite receiving no funding for this. Each state delivers these services differently based on community need and scale of disaster events, taking a place-based approach.
There is no ongoing funding for these services.
To establish an ongoing national disaster legal assistance response we need:
- $20 million per annum for the delivery of disaster response and recovery legal services nationally across Legal Aid Commissions (LACs), Community Legal Centres (CLCs) and Aboriginal and Torres Strait Islander Legal Services (ATSILS) is required. This includes a baseline legal assistance service and the capacity to stand up place based legal assistance in disaster affected areas.
Investment in an ongoing national disaster legal assistance response would deliver cost-benefits for government – particularly through the legal assistance focus on systemic changes to insurance to benefit disaster affected communities and support for communities to access insurance to re-build their lives following disasters.
Further information on these asks is provided at Attachment A.
Attachment A
NDIS Appeals Program
National Legal Aid is seeking a 5-year funding commitment of $18 million per annum that would include:
- $7 million per annum to continue the national NDIS Appeals Program;
- $4 million per annum to expand the NDIS Appeals Program to better meet demand;
- $6 million per annum for the implementation of a national generalist disability legal service.
The Department of Social Services has provided funding for a national NDIS Appeals Program to Legal Aid Commissions (LAC) since 2016. The funding agreement for the Program is due to expire on 30 June 2025.
The NDIS Appeals Program includes advice clinics and legal representation at the Administrative Review Tribunal (ART) and Federal Court. In 2022-2023 LACs provided legal representation to over 300 people and over 2,300 legal advices as part of the Program.
All jurisdictions are experiencing significant increases in demand, in line with the increases in NDIS Appeals applications which are currently averaging around 700 applications per month. For example, Legal Aid Queensland provided over 370 advices in 2021-22 and provided over 770 advices in 2022-23. Victoria Legal Aid received a 67% increase in applications for legal aid for NDIS appeals at the ART from 2020-2021 to 2022-2023.
The NDIS Appeals Program provides a critical service to people with disabilities navigating appeals at the ART and Federal Court. As the NDIS has matured as a program over the past decade, the nature of the appeals has also adjusted as there is better understanding of the NDIS program parameters. The legal assistance now provided within the NDIS Appeals Program prioritises people experiencing disadvantage and the matters are technical and complex and consequently each matter requires a greater allocation of resources to assist with this.
In addition to this, the cost of obtaining medical and other reports has increased, also requiring a greater allocation of resources for each matter.
Approximately 63% of NDIS appeals matters are unrepresented. This is in contrast to the resources available to the National Disability Insurance Agency who have a legal representative for all matters and may also brief barristers to respond to appeals. Ensuring access to legal representation for these matters will not only provide better support for people with disabilities experiencing disadvantage, it will also improve efficiency and efficacy of the operations of the Federal Court and ART, particularly given the complex nature of the matters.
To address this inequity, better support the needs of people with disability and to better meet demand and the growing complexity of NDIS appeals, the Disability Royal Commission Report recommended immediate additional funding of $20.3 million per annum to increase access to the NDIS Appeals Program (recommendation 6.21). This recommendation has been accepted in principle by the Federal Government.
To continue services at their current level the ongoing funding required for the NDIS Appeals Program is $7 million per annum.
To better meet demand, it is proposed that an additional $4 million per annum is provided to expand the NDIS Appeals Program so that it could increase its service delivery to provide a total of approximately 3,500 advices and 450 legal representations per annum.
The funding provided by Department of Social Services has been temporary and iterative, and consequently recruitment and retention of staff has been challenging as has providing assurance of continuity of service for clients. If funding was to continue, then a five-year commitment is sought, to align with the new National Access to Justice Partnership arrangements and to provide funding certainty.
Consideration should also be given to expanding the NDIS Appeals Program to deliver broader disability legal assistance service, similar to the provision of holistic legal assistance through Your Story. With a national team providing centralised intake processes plus generalist lawyers with disability expertise in each LAC, Your Story was a national disability legal service that provided national, holistic, high quality and community valued legal assistance across a broad range of issues for approximately 1,000 people with disability per year. Additional funding of $6 million per annum would allow for the implementation of a national generalist disability legal service that would better support people with disability and support NDIS Appeals Program coordination.
Permanent Protection Visa Program
The Permanent Protection Visa Program was established in early 2024 and provides legal advice and representation to people appealing permanent protection visa decisions at the ART and the Federal Court. The Program aims to assist at risk, disadvantaged applicants to navigate the process. It also aims to support the ART and the Federal Court processes in terms of providing timely advice and representation that supports the reduction of the current backlog of appeal applications.
$36 million per annum has been provided to Legal Aid Commissions and Community Legal Centres to deliver the Program. This funding is due to cease on 30 June 2025.
This Program became operational in July 2024 and the legal assistance sector has expanded its service delivery capacity, developed a national referral agreement with the Federal Court and supported the ART as it transforms its services to provide targeted referrals to legal assistance services. In the first 3 months of operation for example Legal Aid NSW, Victoria Legal Aid and the Legal Services Commission of SA have delivered 70 legal representations and over 550 information and advice services.
The number of appeals applications remains high and averages at almost 2,000 per month. It is expected that this will continue to increase as a consequence of changing migration policy and legislation.
Consequently, it is critical that the PPV Program funding is continued to not only support people experiencing disadvantage to navigate the appeals process, but to also assist the ART and the Federal Court in reducing the backlog and implementing timely and efficient processes. Given the investment in standing up the Program, to cut it within one year of operation is not an effective use of resources.
Supporting victim-survivors of domestic and family violence, particularly in rural and remote areas and prevention of service cuts
National Legal Aid is seeking an ongoing funding commitment of $30 million per annum to raise Legal Aid private practitioner fees to $200 per hour or 80% of the court fee scale to help ensure LACs can maintain family law legal assistance to people experiencing disadvantage, particularly victim-survivors of domestic and family violence. If this funding is not provided, Legal Aid Commissions will need to take steps to raise the fees using existing funding, which it is estimated will result in reductions of approximately 9,200 family law grants per annum. This represents a 25% cut to family legal representation services.
Legal Aid Commissions are facing challenges in retaining private practitioners to deliver family law legal representation services. Family law legal representations is a critical part of supporting victim-survivors and working to end gender-based violence. 86% of all family law legal representations include a risk of domestic and family violence.
The recent casework management changes as part of the Federal Circuit and Family Court of Australia reforms and the amendments to the Family Law Act, whilst welcome in terms of better supporting early resolution, ensuring the best interests of children and appropriate consideration of domestic and family violence, nonetheless are increasing the workloads of legal aid family lawyers and demand for Independent Children’s Lawyers (ICLs) without any additional funding provided to address these increases.
A snapshot of the impact of this is provided below:
- Legal Aid ACT experienced a 10% overspend in its family law budget for 2023-24 due to increased costs of matters.
- Victoria Legal Aid (VLA) reports a 33% increase in average costs for parenting matters since FY21. Similarly, ICL matters are 35% more expensive in FY24 than FY21.
- In the financial year to date, Tasmania Legal Aid (TLA) expenditure on Commonwealth Family Law grants is 45% greater than budgeted, which highlights the increased costs of the courts’ merger. On average the life span of a family law file has increased by 33% since the merger.
72% of legal aid approved matters are assigned to private practitioners. Private practitioners are particularly essential in delivering legal aid services in regional and remote areas of Australia. However, the fees provided to undertake these matters have been limited and not kept pace with increased costs. Due to under-resourcing some Legal Aid Commissions have not been able to increase their fees at all and are providing the same amount per hour to private practitioners as they were in 2014. There is also a lack of parity between the fees paid to criminal law practitioners and family law practitioners with this being up to $30 an hour less for family law practitioners in some jurisdictions.
Consequently, there are market supply risks in delivering essential legal representation for victim-survivors of domestic and family violence. In Victoria, the number of firms undertaking legal aided family law work has reduced by more than 50% in nine years whilst in Queensland there has been a 32% reduction in available family law private practitioners since June 2021. There are 30 regional and rural communities in Queensland with no available private practitioner and a further 22 communities with only one available private practitioner.
The ACT is currently negotiating a new 5-year agreement and approximately 50% of all private practitioners currently delivering legal aid services have indicated that they will not participate under the new agreement. On average, in 2023-24, approximately 80% of private practitioners were unavailable to accept new grants of aid in Western Australia.
Legal Aid Commissions are moving to raising their family law private practitioner fees using existing funding in order to maintain market supply at current rates. If they don’t do this, then the system will be facing market failure which will significantly impact access to legal assistance for victim-survivors, particularly children at risk of abuse and neglect and women and children living in regional, rural and remote areas.
Disaster Legal Assistance
Disasters are becoming more frequent, more destructive, more widespread, impacting larger numbers of people, and for longer periods, resulting in concentrated and escalating demand for legal services.
For example, in NSW since 1 January 2020 the Legal Aid NSW Disaster Response Legal Service (DRLS) has provided over 12,400 disaster related services to over 5,000 clients including over 2,800 helpline calls and over 9,500 legal services. At the peak of service delivery between March and July 2022, Legal Aid NSW lawyers simultaneously attended eleven Recovery Centres across Northern NSW and Greater Sydney as well as over 20 Recovery Assistance Points and pop-up events and coordinated the wider legal assistance sector response.
Disaster response legal assistance has become a specialised area and is an expansive area of law - it includes insurance, housing and tenancy, grants, environmental and planning issues and income support. It is critically important to provide an early response to communities to assist with matters such as temporary accommodation, insurance claims and disputes, saving tenancies, financial hardship, accessing grants, employment law entitlements, motor vehicles (vital transport in regional areas).
Disasters span jurisdictions particularly for cross-border communities and for clients navigating national insurance law.
New South Wales, Victoria and Western Australia have received temporary funding over the past two years to deliver and co-ordinate disaster response legal services for disaster affected communities. Each state delivers these services differently based on community need and scale of disaster events, taking a place-based approach.
The capacity to service demand is hampered by short term funding, with the regular loss of skilled expertise due to insecure employment. Without commitment to ongoing funding at a national level the co-ordination, scale and geographical coverage of the disaster response would be significantly reduced and communities, particularly in rural and remote areas of Australia, would not receive support.
Disaster legal assistance is a cost benefit investment for governments. In particular, the legal assistance provided to people impacted by disaster and the systemic advocacy undertaken for example, with insurance companies, represents significant savings by reducing the need for government funded support.
A total of $20 million per annum for the delivery of disaster response and recovery legal services nationally across Legal Aid Commissions (LACs), Community Legal Centres (CLCs) and Aboriginal and Torres Strait Islander Legal Services (ATSILS) is required. This includes a baseline legal assistance service and the capacity to stand up place based legal assistance in disaster affected areas. This could be jointly funded by the Commonwealth and State/Territories and could expand upon existing arrangements developed by the National Emergency Management Agency as part of the Disaster Recovery Funding Arrangements.