Advocacy and frontline services vital to achieve access to justice

Public debate on the value of advocacy by community legal centres has increased markedly since our earlier post focusing on Federal Budget cuts and new restrictions to be introduced in July on law reform and policy advocacy using Federal funds.

Much of this debate has centred on the efficiency benefits of community legal centres’ law reform and policy advocacy work, which has been acknowledged by the Productivity Commission’s draft report on access to justice arrangements (see pp. 624–5), but challenged by Federal Attorney-General George Brandis, who is driving the new restrictions.

The Attorney-General maintains that, in an environment of limited resources available to deliver access to justice, funding for legal assistance through community legal centres should be confined to “frontline” services – individual cases of people walking through the doors of community legal centres.

While the vast majority of their resources are devoted to helping individual clients, community legal centres, among others, have argued that restricting law reform and policy advocacy removes an efficient means of achieving fairer laws, policies and practices. This can benefit many people who might otherwise experience the same problems and go on to present as individual cases, fuelling the crisis levels of demand already experienced by many of the 200 community legal centres around Australia.

Law reform and policy advocacy can relieve pressure on the community legal sector and the courts by preventing problems that arise from problematic laws. Improving the way the law works or is enforced can help to provide better justice for everyone.

A critical example is the need for advocacy in the vitally important area of free legal help to address family violence, as increasing numbers of women present at community legal centres seeking help to navigate a flawed and fragmented legal system that places them and their children at often fatal risk. That system, and the laws and policies that underpin it, should and must be challenged to make women and children safer.

While in some cases the work of community legal centres may question government legislation and policies, this is justified by the fact that their law reform and policy advocacy are based on the experience and insights gained by seeing the legal problems of thousands of people every year. With freedom to engage in law reform and policy advocacy, community legal centres’ work in resolving individual cases can also contribute to broader solutions that prevent legal problems being repeated.

This case has been made strongly by Liz Curran, senior lecturer in law at the Australian National University, in her recent article for The Saturday Paper, “Blind Justice“. She writes that “governments of all levels and political persuasions, and their agencies, can easily lose sight of the on-the-ground experiences of members of the public”.

The tension between Senator Brandis’ position, the case made by Curran, and the draft findings of the Productivity Commission has also been independently noted by Senators Wright, Singh and Peris in Senate Estimates (see pp. 64ff), and by Shadow Attorney-General Mark Dreyfus QC MP in a recent adjournment speech (PDF) in the House of Representatives.

It is a tension yet to be satisfactorily resolved, with Community Law Australia in strong agreement with advocates and the Productivity Commission’s draft finding that law reform and policy advocacy are a core activity of community legal centres.

The question of Federally funded advocacy has also recently received broader consideration by Dr Joyce Chia, Senior Research Associate at the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW. Dr Chia’s article, which makes a strong case for the broader importance of advocacy, followed post-budget comments by Immigration Minister, Scott Morrison MP, suggesting that “advocacy groups” should not be supported by Federal funding.

Interestingly, Minister Morrison’s views were contradicted in recent comments made by Minister for Social Services, Kevin Andrews MP, who said at the ACOSS national conference that the government should not “seduce community groups into becoming its mouthpiece”, that it should not see them as “simply an extension of itself”, and that “the institutions of civil society are important, and we support them”. Andrews consequently rejected the idea of gagging the welfare sector.

His remarks followed an ABC Radio National Breakfast report a day earlier, in which ACOSS CEO Dr Cassandra Goldie expressed concerns about the risk of organisations being “restricted in speaking out on what needs to be done”.

The Attorney-General has sought to distinguish his position from a literal “gag” on law reform and policy advocacy by claiming to value these activities, and by asserting that, even under the new restrictions, they will continue to be carried out by community legal centres on a voluntary basis.

However, amid continuing chronic underfunding of the sector, the defunding of certain community legal centres, and deep funding cuts through the Budget that will inevitably impact the frontline services the Attorney-General aims to prioritise, the funding restrictions he is introducing clearly amount to an effective gagging of law reform and policy advocacy – to the clear detriment of efficiency in legal spending, and the public interest.

The Community Law Australia campaign rejects this position. Together with frontline services, law reform and policy advocacy are vital in tackling the access to justice crisis in Australia.

Further information:

Read the submissions in response to the Productivity Commission’s draft report

Community legal centre help goes well beyond individual clients

Community Legal Centres (CLCs) give free legal help for problems such as family violence, employment, housing, debt and consumer problems, delivering around half a million services to Australians every year. However, the work of CLCs brings positive benefits well beyond the help they provide to individual clients.

Community lawyers see how the law impacts on ordinary people, and gain insight into the causes of their clients’ problems, and use a range of approaches to bring broader benefits to the community.

A very recent example is the Taxi Driver Legal Service running in Victoria, which has shown how a community legal centre is often well placed to help individuals to use the law, identify unjust processes and unfair laws, and contribute to system change.

My earliest experience at a community legal centre was as a (non-lawyer) volunteer over 30 years ago at the Tenants Union Legal Service. While our assistance often helped individuals get repairs done, avoid eviction, or get bonds repaid, it was clear that the problems lay not so much with the individuals, but with particular players in the industry, and with outdated laws.

The service helped some tenants challenge one notorious individual who ran an eviction service. After a number of his cases were “thrown out” of court (in one case leaving his landlord client owing high legal costs) we saw fewer cases where this person flouted the law.

We identified that one large estate agent was routinely retaining tenant bonds for “cleaning”, regardless of how they left the property. Some media coverage, arising from a group of us walking into the agent’s office with mops and buckets, had an impact on the agent’s practices.

However, in those days the tenancy laws were archaic, and extremely biased against tenants. So when the Government announced a consultation process on tenancy law reform, the service (which was staffed mainly with volunteers) played a key role, sharing the experiences of the service, and identifying what changes were needed.

Many years later, at Consumer Action Law Centre, we often helped large numbers of individuals with similar problems – often involving the same company. It was clearly inefficient to help person after person with the same problem, so we always looked for different ways to fix the bigger problem.

One case where an important decision was achieved related to a debt owing for goods that weren’t delivered. The company was claiming $10,000 from our client, but another 700 consumers “owed” a total of $6.5 million. The court found that, based on the lender’s relationship with the supplier of the goods, the debt wasn’t owed by our client – confirming the legal position of the other 700 consumers.

In another case, formal complaints to regulators led to a court finding that a large debt collector had engaged in “widespread” and “systemic” misleading and deceptive conduct. We had lodged over 100 complaints with the regulator on behalf of consumers. This collector was collecting half a million debts on behalf of banks, so the change in the collector’s behavior benefited many more people than just our clients. We were able to contribute to the application of “anti-harassment” laws which might not be enforced unless abuses are reported.

Delia Rickard is the Deputy Chair of the Australian Competition and Consumer Commission (ACCC), and formerly from the Australian Securities and Investments Commission (ASIC). Ms Rickard says:

Community Legal Centres such as the Consumer Action Law Centre are a critical ingredient if regulators like ASIC and the ACCC are to do our work well. Such services are often the first place disadvantaged consumers go to with their problems. Consequently these centres are frequently the first to identify emerging issues causing real detriment to vulnerable sectors of our community. This is particularly the case where centres combine financial counselling and legal services and integrate case work, research and policy development so that they can promote long term reforms.

Centres such as Consumer Action that combine these skills are in a position to analyse their cases, identify systemic conduct (such as poor practices by debt collectors or equity stripping by fringe mortgage brokers) and present the necessary information to regulators, industry and governments. Their work regularly results in regulators taking on major litigation (such as the ACCC’s current actions dealing with Door to Door sales in the energy sector) as well as real changes to industry conduct and significant law reform. In short, such centres are an essential part of our consumer protection regime.

These activities are often successful in changing industry practices, but in some cases it is necessary to advocate a position regarding the law. While the Federal Government was reviewing laws relating to payday loans, community lawyers were seeing low income borrowers who were trapped in a high-cost loan cycle. The payday lending industry employed lobbyists to put their views both publicly and to politicians. Our staff spoke to the media about the need for strong laws, and together with other community workers met with MPs and their advisers to explain the need for tough reforms.

Such work is integral to improving outcomes for Australians and can uncover laws that are performing badly. Without CLCs that identify, through their daily work, wider problems that need to be addressed, we risk being left with bad practices and laws that impact severely on people.

My background is in the consumer and debt field, but CLCs in all areas use strategies to widen their impact beyond individual casework – for example by reporting an insurer which is responding poorly to a natural disaster, taking a discrimination case against a public transport provider, or highlighting racial profiling by police.

In the ACT, a law was having detrimental effects – causing some people to lose their jobs because of immediate confiscation of their driver’s license if they didn’t pay a fine on the spot. The local CLC released a report recommending changes that allowed fines to be paid by installments, and the law was changed – ensuring that people were once again able to drive to work if they weren’t able to pay the fine all at once.

Reforms of this kind make a difference to people’s lives.

Working to address broader problems through education campaigns, reporting legal breaches, running test cases and advocating for law reform is a core part of CLC work. An analysis of CLC legal advice and casework shows that there is a cost–benefit ratio of 1:18. Taking into account the wider impact of CLCs work, the community benefit of every dollar spent on CLCs is much greater still.

Carolyn Bond AO is national spokesperson for Community Law Australia. She ran specialist consumer and credit legal centres in Victoria for over 15 years.

For further reading, see ‘Solving problems – A strategic approach’ (PDF), a report exploring issues in community centre legal practice, commissioned by the Consumer Action Law Centre and the Footscray Community Legal Centre – Version 2. Dr. Liz Curran, Legal Workshop, ANU College of Law.