The Purchaser-Supplier Approach in Legal Aid

9. The Implications Of Shifting Towards A PS Model In Federal States

The final question in the Terms of Reference asks, what are the implications of the shift towards a purchaser-supplier model in a federal state in which the national government is a major funder of legal aid?

Whilst this is a discrete question the paper has already sketched many such implications. Australia is a federal state in which the central government is a major funder of legal aid. Answering Q. 6 (see 7.0 above) highlighted the problems in its transition to a PS-approach, notably in Commonwealth-State relationships, and the relationship between the Commonwealth/Federal government and the legal aid commissions, CLCs and the legal profession. Some of those problems were avoidable, if the Commonwealth/Federal government had not prefigured the transition to PS with cuts to legal aid funding, and had relied on change management processes to achieve its ends. Indeed the answer to Q. 5 (see 6.0 above) outlines the advantages that a PS-approach has brought to legal aid management in Australia so far, particularly from a Commonwealth/Federal government perspective. The lessons revealed by the answers to Qs. 5 and 6 are applicable to funding and managing national legal aid programs in other federal states. Provided that the unique historicity of law and the experience of its institutions in even highly comparable societies such as Canada and Australia are borne in mind.

Many of the lessons evident in Qs. 5 and 6 above are applicable to program management in federal and unitary states. It is implicit in the PSM, for instance, that policy-making processes should become more efficient and effective, governments invest in research and managers in funding/policy agencies ensure that staff administering PS programs have appropriate interpersonal, negotiation and bargaining, accounting and financial, contract, risk and change management skills. To explore such particular implications at the program management level is beyond the scope of this paper, although a similar investigatory/research process should precede any sustainable and successful shift to a PS-approach. Drawing in particular on the wealth of experience of the PSM that exists, for instance, in England and Australia, and almost certainly, Canada. This reservation notwithstanding the paper includes as Appendix B a table comparing the features of the mutual interest and PS models of funding legal aid. The table in Appendix B should be read as a white-board approach, and does not purport to be an exhaustive comparison, nor does it contextualise the two funding models within a framework of organizational or public management theory.

There are implications peculiar to federations in which the central government is a major funder of legal aid. Invigorating policy-making functions, publicising policies and greater control over resource allocation is likely to increase the national profile of central governments in funding and providing legal aid. The exercise of such powers brings new or heightened responsibilities. There is a real risk that the onus of financing and managing national legal aid schemes will shift to central/Federal governments. The States/provinces, legal aid commissions/plans, legal professions, CLCs/clinics and the public may come to expect that expanded central/Federal power and functions carries greater responsibility and accountability, not necessarily restricted to funding and providing legal aid in central/Federal matters. Mutual interest approaches divide and diffuse responsibility for legal aid whereas PS-approaches tend to concentrate it.

Federal states are systems in which power is shared/divided in agreed proportions, and functions allocated to the centre/regions. Any centralizing effects of a PS-approach must be mediated within this socio-political legal framework. The need for effective system penetrating communication is no less than in the mutual interest model. In fact a PS-approach to managing the interests of central/Federal governments in a national legal aid system requires more effective cross-interest communication. In part, through new institutions, such as the Legal Aid Council proposed in Australia in 1998 (Senate Legal and Constitutional References Committee 1998), or through effective policy and contract management, ever aware of the difficulties of achieving fair and equitable distribution of resources in regions and communities with distinctive and different needs, and sub-markets for legal services.

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