This audit assessed the effectiveness of the Attorney‐General’s Department’s administration of the Indigenous Legal Assistance Programme.
Audit objectives and criteria
The objective of the audit was to assess the effectiveness of the Attorney-General’s Department’s administration of the Indigenous Legal Assistance Programme. To conclude on this objective the ANAO adopted high level criteria relating to the effectiveness of program management arrangements, AGD’s management of funding agreements, performance monitoring and reporting arrangements.
Access to appropriate legal assistance services is an important element of a fair and equitable legal system. Since 2011, funding through the Indigenous Legal Assistance Programme (ILAP) has enabled service providers to deliver a cumulative total of 604 519 legal assistance services, or an average of 201 506 per year. Over the same period, ILAP funding has enabled these service providers to operate an average of 84 outlets each year to provide services. Research undertaken by a range of government and non-government bodies indicates generally that the level of unmet demand for Indigenous legal assistance services is higher than the supply of those same services. Additionally, the Productivity Commission has reported in the 2014 Overcoming Indigenous Disadvantage report that between 2000 and 2013, Indigenous imprisonment rates have continued to worsen with the imprisonment rate for Indigenous adults increasing by 57.4 per cent. There have also been significant increases in juvenile detention rates since 2001. While these trends in themselves are not necessarily reflective of levels of access and the quality of services provided through ILAP, they do indicate that demand for Indigenous legal assistance services is high and is likely to remain so.
Facilitating appropriate access to justice is complex and involves a number of different institutions. For the most part, Australians interact with the justice system at the state and territory level, and accessibility is largely determined by how that justice system functions. As a result, while Australian Government support through ILAP is able to address some barriers to access, it is not able to address all factors relevant to improving access to justice for Indigenous people. Further, the demand for services arises largely from the operation of state and territory laws. In this respect, demand for Indigenous legal assistance services is not in the control of the Australian Government and can be affected significantly by changes made to state and territory laws.
In this context, and considering the small size of the program, the overall management approach taken by the Attorney-General’s Department (AGD) is reasonable. The approach recognises that there are institutional and jurisdictional differences in justice systems across Australia, and acknowledges that ILAP service providers are better placed than AGD to identify appropriate service approaches in the areas they service. Accordingly, AGD allows service providers flexibility in their planning and delivery approach. In circumstances where national programs allow for local flexibility, program management arrangements need to be designed to achieve appropriate levels of consistency. Performance information arrangements also need to be well developed to enable appropriate comparative analysis and assessment of program performance overall.
AGD has put in place a range of approaches to promote consistent national management of ILAP. These include a formula based funding allocation model that incorporates information specific to each jurisdiction, but assesses each jurisdiction against the same criteria and weightings to determine the funding levels to be allocated to each service provider. Expectations in relation to service delivery are promoted by the Service Delivery Directions, made available to service providers to inform the annual development of service plans, and the development of the Indigenous Quality Practice Portal designed to support the collection and analysis of relevant performance information and monitor delivery against Service Standards. Grant funding is managed through standard funding agreements that are in place with each service provider.
AGD’s management of ILAP has matured since it assumed responsibility for the program in 2004, and while the current management framework is reasonable overall, improvements can be made in the following areas. Firstly, to give better effect to the intent of the program to prioritise assistance to communities with the highest need, the funding allocation model, which is currently being revised by AGD, could be enhanced by the inclusion of additional social and economic indicators of disadvantage to better target available resources. Secondly, there would be benefit in developing greater consistency in relation to performance expectations. Currently, each ILAP service provider proposes targets for the number of services they expect to provide in their annual service plans, which are endorsed by AGD as part of the annual planning process. However, the definition of a service can vary between jurisdiction and AGD has not developed a benchmark level of service against which an assessment of proposed targets can be made. Further, service plans are not integrated into funding agreements, and as a result, there is no clear link between the funding amounts provided in the agreements and the expected level of performance.
Generally, ILAP funding agreements are compliance focussed and show only a limited performance orientation. While the reporting requirements established in the funding agreements give AGD sufficient visibility to identify issues of compliance, AGD has not always been timely in verifying or addressing matters relating to service provider compliance. Further, the focus of AGD’s program measurement and reporting is mainly on the levels of funding expended and the number of legal services delivered. This information is relevant in view of the demand-driven nature of ILAP. However, in the absence of targets or baseline information in relation to access, AGD is unable to assess whether access to justice has improved as a result of ILAP funding. Improvements to the collection, reporting and use of currently available performance information—directed towards measuring and reporting on the quality of services delivered and supported by appropriate assurance and verification mechanisms—would better enable AGD to strengthen its focus on whether the program is performing in line with expectations, and that barriers to access are being appropriately addressed.
The ANAO has made one recommendation aimed at improving AGD’s approach to setting and assessing performance targets.