Introduced last week as a merged entity comprising the current six Aboriginal and Torres Strait Islander legal services (ATSILS), the Aboriginal Legal Service is the successful New South Wales tenderer of the Government’s national tender selection process, which overthrows the previous model of Aboriginal legal services. From July this year, New South Wales joins Victoria, Western Australia, Queensland and the Northern Territory under the new model.

Ruddock said the merger would bring together more than 100 years of experience in delivering high quality, culturally appropriate and accessible legal services to Indigenous Australians. The Government decided last year to undertake a tender selection process in an effort to deliver better services to Indigenous Australians.

When it was announced that the provision of legal aid services to Aboriginal people would be put to commercial tender in every state, the Coalition of Aboriginal Legal Services (COALS) was concerned that this would open up the possibility for the provision of such services to fall into the hands of non-Aboriginal organisations. “If this had occurred, a terrible blow would have been struck to Aboriginal people and their 218-year struggle for self-determination,” said Sheryn Omeri, research solicitor at COALS. “In addition, legal aid services provided by a non-Aboriginal organisation may not have been as culturally sensitive as those provided by COALS member-ATSILS,” she said.

As it turns out, the merged Aboriginal Legal Service will provide better services to Indigenous Australians, said Omeri. The 24 hour custody notification telephone service will be expanded, and a new Victims of Family Violence Contact Officer will enhance services.

The new arrangement, the organisation agrees, “represents a great victory for the NSW ATSILS, which were able to join together and act in the best interests of the Aboriginal people of NSW and the ACT”.

But not all is golden, Lawyers Weekly can reveal, and some aspects of the changes are less than positive for those involved.

The Government has claimed the changes will ensure better value for money. “It was important that the new services be responsive to the needs of the Indigenous community and to the individuals they were assisting,” Ruddock said. But according to Omeri, the “value for money” proposition is an overstatement.

“The reason it came about was at the initiative of the Attorney and his department, because they decided to put the provision of legal aid services to Aboriginal people to tender in every state of Australia. We just had to respond to that,” she said.

“Currently the six Aboriginal legal services in NSW operate as six separate organisations, so they each have separate sets of management. Like anything else, when six companies become one, you have fewer layers of management, so you save money in that sense.

“But, really, the saving is not significant, because we have other costs that will counteract those sorts of savings — like salary increases for solicitors who haven’t received a pay increase for the past five years. They are not paid at rates that are even vaguely comparable to solicitors employed by the NSW Legal Aid Commission. That is the fundamental injustice about this situation,” Omeri said.

Omeri referred to a report by the Joint Committee of Public Accounts and Audit, which produced a number of recommendations on the issue of access of Indigenous Australians to law and justice services.

“The Australian Government responded to it in the Senate on 2 March this year. One of the recommendations was that enough money be given to Aboriginal legal services, to be able to pay their solicitors at a rate that was comparable to the solicitors employed by the Legal Aid Commission.

The tender contract is a fixed-sum contract. Omeri said that despite comments of the Attorney General to the contrary, the amount offered in the tender contract will continue to prevent the ALS from providing remuneration to legal staff which is comparable with that provided by the NSW Legal Aid Commission or by private firms.

“The Government’s response was very much, ‘oh well this is a lump sum contract and the ALS can do with the money what they will. And if that means paying solicitors more money then that is what they can do’. But of course, if you have a fixed amount of money that you are being paid by the Government as funding, and you pay solicitors more money, as they deserve, then you can recruit fewer solicitors. So it doesn’t really work in the way that the Government suggests that it should or does,” she said.

THE NEW tender system for the provision of Aboriginal legal services “heralds a new era of cooperation”, according to federal Attorney General Philip Ruddock. Under the new process, a “simple means test” ensures funds are allocated to those who need them most, he said.

“It also maintains current services priorities that address Indigenous incarceration and maintains current priorities in terms of geographical coverage so that people in areas serviced by a Legal Aid Commission will have a genuine choice of provider,” he said.

The revised tender process asks that prospective tenderers respond to a range of criteria, including their ability to provide Indigenous leadership and culturally sensitive legal services, Ruddock said.

Calling a means test “simple”, however, is to underestimate how difficult the day-to-day carrying out of means tests can be, according to Sheryn Omeri, research solicitor at COALS.

“When you are dealing with a sector of the Australian community that is quite disadvantaged and has been disadvantaged for a very long period of time, you can’t underestimate how difficult paperwork can be for them.”

“The Aboriginal Legal Service would of course offer any assistance that it could — so its solicitors and its field officers would be at court and at the offices offering support to clients who perhaps had difficulty filling out these forms on their own. But then that takes up quite a lot of time. And you can imagine if an Aboriginal Legal Service solicitor is doing duty work at court, that takes up a lot of time that they could spend getting more information from clients or actually being on their feet in court rooms.” She noted that “this sort of things exists in the Legal Aid Commission as well”.