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The ALS freeze is ‘catastrophic’ and ‘appalling’

After the ALS was forced to freeze services across NSW last week, lawyers and legal organisations have called for additional funding from the government in what’s been called a “disaster” for both courts and Indigenous Australians.

user iconLauren Croft 22 May 2023 Big Law
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Last week, the Aboriginal Legal Service (ALS) was forced to freeze services in 13 local courts beginning Monday, 15 May. This followed a failed request for emergency funding to keep these services afloat.

“We’re devastated to confirm the Commonwealth government did not come through in last week’s budget with the funding we need to keep all services running,” the ALS tweeted the day they froze services.

Late last week, extra funding was allocated to the ALS, but it was only a fraction of what the organisation had originally asked for.

 
 

The ALS had requested $250 million in extra funding in order for the services in NSW local courts to survive. These courts are Byron Bay, Eden, Forster, Junee, Lithgow, Moss Vale, Muswellbrook, Scone, Singleton, Temora, Tenterfield, West Wyalong, and Wauchope.

Chair of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS) and chief executive of the Aboriginal Legal Service (NSW/ACT) Karly Warner said that these changes would have a detrimental effect — but that the ALS would keep fighting for funding.

“There is no point sugar-coating this situation — it could result in far worse outcomes for our clients and communities. We know that when culturally safe legal support isn’t available, the result is more unjust incarceration, more families torn apart, more intergenerational trauma. I hate to say it, but there may be more Aboriginal and Torres Strait Islander deaths in custody,” she said.

“We are committed to doing everything we can to support our communities through this challenging time. We will continue to advocate for the needs of our communities right around the country. This is something we won’t give up on.”

From 15 May, this means that the ALS will be unable to act for people facing new criminal charges in these courts — something which the president of the Law Society of NSW, Cassandra Banks, said remained of the utmost importance.

“Services provided by Aboriginal Legal Services, Legal Aid and private solicitors are crucial in ensuring adequate access to justice in our society, particularly in the context of initiatives to Close the Gap,” she said.

“The Law Society of NSW welcomes the review of the National Legal Assistance Program, but where rising demand means that adequate services are not able to be provided, we strongly encourage governments to consider providing additional resources to ensure important legal assistance can continue to be provided.”

Criminal law practice director at Armstrong Legal, Trudie Cameron, also emphasised that the Australian government needs to do better on this front.

“The ALS freeze on services is appalling. The ALS (and other Indigenous organisations) have long been pleading for adequate funding. The value of the services they provide is immense, both on an individual level as well as to the justice system as a whole. For far too long, their services have been jeopardised by the failure of both the state and federal government to appropriately fund and resource the organisation,” she told Lawyers Weekly.

“The freeze is a catastrophic but unavoidable consequence of longstanding and chronic underfunding. The state and federal governments need to act immediately to ensure the necessary legal advice and representation is available to Indigenous Australians and to ensure further strain is not placed on the justice system as a whole.”

This underfunding means that these local courts are already close to breaking point — which means that moving forward, these courts are “not going to be able to cope”, according to J Sutton Associates director Andrew Tiedt.

“The freeze will be a disaster for the local courts in question, and the communities they serve. The court system relies on public interest legal service providers to represent those who cannot afford private representation. If some defendants are now to have no option other than to appear unrepresented, it is difficult to see how the courts will be able to cope with the resulting explosion in workload,” he said.

“[Clients who rely on the ALS for help] will be left to fend for themselves. People will be refused bail when they would otherwise have bail. Likely as not, people will be convicted and receive gaol sentences that they would not otherwise receive.

“More funding is desperately required. ALS, in particular, has been criminally underfunded for far too long. More funding has to be provided to allow the ALS to continue to provide their essential services.”

Without this funding — and without the ALS servicing those 13 local courts, Legal Aid and other practitioners will be called on for extra work.

“While some practitioners may be able to find time in their already busy and strained workloads, for others, it will be impossible. They will either need to work even longer hours or reduce the time spent on each matter (or a combination of both). There will be individuals who will have to go without critical legal advice,” Ms Cameron added.

“The consequences for them and our community may well be severe. In addition, this will put further pressure on the courts. Magistrates will need to somehow conjure more hours in the day to determine the matters of those who are unrepresented, which often take longer than persons who are represented.”

On Friday (19 May), the federal government announced a small $21 million funding increase, sourced from department underspend in other areas. However, the ALS said in a statement that this “Band-Aid measure” would not reverse the service freezes.

“It’s a really good start and will help us keep the lights on over the next 12 months, but it’s simply not enough. We fully expect service freezes to continue, and that means bad outcomes for Aboriginal and Torres Strait Islander Australians, including unjust incarceration and separated families.

“This increase in funding will mean different things for different services around the country. It’s a welcome breather but ultimately is nowhere near enough to reverse the increasing freezes that are crippling our capacity to achieve justice for our clients,” Ms Warner said.

“We will continue to work with government and other stakeholders to minimise the impact on communities. We will be continuing our campaign for sustainable funding that guarantees access to high-quality advice and services.”