Tag Archives: public interest lawyers

South Africa: litigation, and beyond

‘”Litigation is warfare. And there is this thing called the “fog of war”.’ – David Mossop QC, Community Legal Assistance Society (Vancouver)

Litigation is often threadbare with risk and uncertainty. And the longer one marches forward along its path, the more certainly life gets in the way. This is particularly so in the area of public interest and community law, where clients often have multiple crises occurring, and few supports. So much legal work is done in the lead up to, after, or around the heat of the courtroom. Yet it is rarely celebrated, collated, or scrutinised.

The South African lawyers I met with were inspiring not only for their litigation work, but also the thinking they did beyond and outside of the courtroom. Much of this was in the areas of compliance, enforcement, and coordination of misaligned regulatory agents and systems. Below, in this final installment of the travel component of the blog, I set out a few examples of this work. Mapungubwe_hill_limpopo

Monitoring and reporting on institutional arrangements. Since 2010, the Centre for Applied Legal Studies (CALS) has been working with the Save Mapungubwe Coalition on responding to the Coal of Africa (CoAL) (listed on the ASX) mining project on land adjacent to the Mapungubwe Cultural Landscape World Heritage Site (Mapungubwe). I spoke to Louis Snyman, Attorney in the CALS Environment Programme, about his work on this matter. He talked me through CALS’s “experimental, multi-pronged” litigation strategy in this case, which is also set out in its research report titled Changing Corporate Behaviour: the Mapungubwe Case Study (Feb 2014), at p 20-21:

“Although often painted as hardened opponents of all mining, Coalition members tried to adopt a position that was always nuanced. It advocated a considered approach to where and how much mining would be conducted, while being opposed to mining near sites of the highest heritage value and ecological sensitivity. However, since the outcomes of litigation are always uncertain, the Coalition was prepared for the possibility that it would not be able to stop the development. Under this scenario, the Coalition resolved that it would take all necessary steps to ensure that CoAL operated with all the required licenses and that license conditions adequately minimised and addressed environmental impacts, and that CoAL would be held accountable for any non-compliance. Litigation, even if unable to stop the mine, could convince the company to revisit its environmental practices and apply for amendments to licenses that failed sufficiently to protect heritage, biodiversity and water resources.”

And so it did. The Coalition, with the legal assistance of CALS, launched numerous appeals against licenses and approvals granted to CoAL, and made an application for an interdict (an injunction) to prevent environmental harm while these processes were underway. Yet in October 2011, CALS and the Coalition resolved that the “strategic calculus” shifted in favour of negotiations with CoAL, and so commenced these negotiations. Despite stalling in 2012 due to a revelation that CoAL had withheld information from the Coalition, this process resulted in the Coalition being granted a seat on the Environmental Management Committee for the project. Since that time, the Coalition has managed to play a vital role in ensuring CoAL’s compliance to the governance scheme. The Changing Corporate Behaviour report sets out a series of useful lessons learnt along this path.

CALS also found that its extensive work on the Mapungubwe case presented a unique opportunity to scrutinise the efficacy of the state’s regulatory and institutional framework for environmental governance. It therefore compiled a further report titled Structures of Governance: Enhancing or Impeding Environmental Justice? (August 2014) that sets out its findings and recommendations in this area, and which it intends to use as an advocacy tool.

A taxonomy of (non)compliance. Lawyers for Human Rights is “an independent human rights organisation with a 35-year track record of human rights activism and public interest litigation in South Africa“. During my visit there, the Head of its Strategic Litigation Unit, David Cote, helpfully introduced me to the established categories of legal (non)compliance. image

This language provides a useful framework through which to assess the likely impact of available legal strategies. For example, one projected response to a court order may be incompetent noncompliance: where an institution will be practically unable to comply with the order. For example, a municipality may simply lack both the engineering skills, and financial resources, to provide its citizens with safe drinking water. In such cases, consideration may most usefully be directed to what action, and at what intervention point, would most effectively redirect resources in order to effect compliance.

Then there is traditional bad-faith noncompliance, vis-a-vis, for example, malicious compliance. The latter is where an institution complies with the words, but not the spirit, of a court order. Bad-faith noncompliance may require further enforcement litigation; however, a grudging form of compliance may be shifted by a more cooperative approach. Where there is an uncooperative old guard within a department with a new forward-thinking minister, for example, there may be more value in cooperating with the minister and encouraging robust departmental human resources practises, than in further litigation.

Interestingly, on further reading, this legal discussion seems to draw on the human resources literature of change management that deals in rule-related behaviour and responses to organisational reform. For example, one scale maps the movement from apathy and non-compliance, through various shades of compliance, to commitment. Other literature focuses on different forms of resistance to organisational change. This may be relevant to further expanding consideration of legal noncompliance.

For those in South Africa, the Public Interest Law Gathering to be held at Wits University in Johannesburg this 22-24 July 2015 is likely to feature a roundtable exploring these issues.

imageRemaining client-focused. I also met with Tashwill Esterhuizen, Litigation Attorney at the Social and Economic Research Institute (SERI). SERI undertakes legal and research work in order to advance the attainment of socio-economic rights of individuals, communities and social movements in South Africa. Tashwill and I discussed many of the unlawful eviction cases SERI has run, and in particular the Blue Moonlight, Dladla (currently on appeal) and Abahlali cases. SERI prioritises responding to the needs of the community, and so most of its cases come out of established relationships with clients and community groups. Tashwill warned me of the risk of having a case selection criteria without flexibility, which unduly restricts the ability to properly service the legal needs of a target client group. While being merely reactive is not ideal, nor is pursing strategic objectives oblivious to the very people that they intend serve. I, in turn, shared how Consumer Action tries to meet this dilemma. Consumer Action does set annual policy objectives, and these do inform its weekly legal case selection process. However, flexibility is inbuilt by way of an area of policy work called “hot issues“, which is informed by systemic issues emerging out of the legal, and Moneyhelp’s financial counseling, casework.

Playing a coordination role. Probono.Org in Johannesburg operates much like Justice Connect: it is a clearing house for pro bono work undertaken by the private law sector. Its office is also nestled in the Constitution Hill complex, one of my favourite places in the city. Here I met with its Head Staff Attorney, Annelie de Plessis, who told me about Probono.Org’s recently launched “One Child a Year Campaign“. The project calls on lawyers to take up a “watching brief” in child protection matters, providing at least one year’s commitment to monitor and oversee the child protection process.  IMG_0102This is in response to a series of incidents in which, despite court orders, the poor coordination of state agents has resulted in children, at worst, being forgotten in hospitals or abused within the child protection system.

The importance of a healthy workplace. Finally, I met with Patrick Hundermark, Chief Legal Executive of Legal Aid South Africa. Through our discussion, I was particularly struck by the pride with which Patrick discussed Legal Aid SA’s recent certification as a “Top Employer“. I got the impression that this had been achieved on the back of a concerted reform effort targeted at revitalising the organisation’s governance practices and systems, and informed by private sector best practice. In particular, he referred to how the organisation had sought to establish a compelling “employee value proposition” (EVP). This is, to quote Wikipedia, “the balance of the rewards and benefits that are received by employees in return for their performance at the workplace“. While the composition of an EVP is specific to an organisation, and will no doubt differ markedly between private, public, and not-for-profit sectors, it is an important organisational consideration across the board.

We also discussed the operation of Legal Aid SA’s impact litigation arm, which is guided by a publicly available Impact Services Policy (set out in its Legal Aid Guide). Through this mechanism, Legal Aid SA funds internally, externally and collaboratively run impact litigation. One interesting example of this is the current and controversial Marikana appeal to the Supreme Court of Appeal. On August 16 2012, 34 people, mostly employed by Lonmin platinum mines, were killed after police opened fire on striking miners. Many more were injured and arrested following this shooting. This tragedy has been compared to the 1960 Sharpeville massacre, and a Commission of Inquiry was called to investigate the incident. In 2013, Legal Aid was ordered by the High Court to fund the legal representation of the injured and arrested Marikana miners before that Commission. In 2014, Legal Aid sought leave to appeal that order to the Supreme Court of Appeal. Its chief executive, Vidhu Vedalankar, is reported as saying that the High Court had trespassed on the separation of powers, in that it “has not only changed the priorities set by Legal Aid SA but fundamentally interfered with its budget, thereby impacting on its ability to provide representation”’.

What’s next?

I have begun the report-writing, and you can look forward to a few short blog posts over the next few months as this work unfolds. Again, I welcome all feedback, suggestions, or clarifications on any of the points or questions raised in this blog to date.


Images:

[1] Picture of Mapungubwe Hill. Source: http://upload.wikimedia.org/wikipedia/commons/5/53/Mapungubwe_hill_limpopo.jpg

[2] Lawyers for Human Rights entrance.

[3] SERI sign.

[4] Probono.Org doorway.

Advertisements
Tagged , , , , ,

A conversation with Scott Cummings

Cummings book coverOn a short trip to sunny Los Angeles, and a moment of respite from the chill of New York, I took the opportunity to visit an academic I had long admired from a distance: Scott Cummings. Scott is Professor of Law at the University of California, Los Angeles (UCLA), faculty director of the UCLA David J. Epstein Program in Public Interest Law and Policy, and author of numerous key texts on public interest law (some of which I refer to in this literature review post below). Our discussion traversed over the following two particularly interesting controversies.

Reframing, and other lessons from the conservative legal movement. One fascinating element of the US legal landscape is the conservative legal movement. In response to a question about what progressive public interest lawyers could learn from the conservatives, one key point that Scott raised was that of (re)framing. He noted:

“In the last 25 years or so….and this is not specific to legalism, but there is a dimension that you can see in the legal movements…generally, [the conservatives] have been more effective in framing what they are doing in ways that resonate better with contemporary American values. That matters profoundly, because much of [public interest law work] is about persuading people of the justice of your cause…. There is something about positioning their work within the dominant narrative of social justice in the United States that the conservatives have managed to do really well.”

Despite Australia’s lack of an equivalent conservative legal movement, this point is, in my view, equally relevant in Australia, particularly in areas such as refugee and environmental law.

By way of example, Scott discussed how since the 1970s the conservative legal movement has ceased to align itself overtly with business interests, and moved instead toward furthering a deregulatory political agenda through litigation framed through a libertarian or civil rights lens. This includes, for example, the use of litigants toward whom the political left are sympathetic, such as people of colour working toward economic development. For further reading on the conservative legal movement see Steven Teles’s highly-regarded book “The Rise of the Conservative Legal Movement: The Battle for Control of the Law“, and the writing of Ann Southworth.

Scott also discussed the way in which the pro-gun lobby had sponsored academics to prepare legal theories and constitutional law arguments that could be deployed before the US Supreme Court, at just the right time, to dramatically expand the Second Amendment right to bear arms. The case in point here is District of Columbia et al v Heller (2008), in which the Supreme Court (in a 5-4 decision) upheld the individual’s right to keep a firearm in the home for self-defence, and so significantly limited the states’ ability to introduce (or retain) greater gun controls. For more on this case and the history of the US pro-gun movement generally, see Adam Winkler’s book “Gunfight“.

How do we evaluate strategic legal work meaningfully?

IMG_3814In discussing what opportunities there are for meaningful evaluation of the impact of public interest law work, Scott helpfully challenged me to define with greater precision what exactly it is that I am concerned with measuring. What kind of cases should we, or do we want to, measure? And why? He also raised the question of scale: at what point in time do we elect to measure impact? Over what length of time? It might be necessary to look at the historical perspective for meaningful data where measuring the impact of litigation as part of a long-term social change campaign, for example that in relation to same sex marriage.

However, in other cases, it may be sufficient to look at the outcome of the litigation alone, or to add only necessary, deliberate layers of further evaluation to this. For example: what level of compliance is there to the court decision by lower courts? And/or what level of compliance is there by relevant administrative agencies? At other points, it may be sufficient, in turn, to record impact only by way of a descriptive case study, or to use simple metrics where this is meaningful. The depth of evaluation will depend on your objectives in the evaluation exercise as well as, obviously, available resources. This was a useful reminder to avoid the temptation of the “one size fits all” solution to a complex question.


Images:

(1) Cover of Alan Chen & Scott Cummings, Public Interest Lawyering: a Contemporary Perspective (2014).

(2) Close up of Shoot the Coin by Mark Bradford (2013) exhibited in the Los Angeles County Museum of Art exhibit titled Variations: Conversations in & Around Abstract Painting.

Tagged , , ,

New York: innovation, optimism and risk

IMG_3665Give me a long enough lever and I can move the world” – Archimedes

They say that New York has a forward momentum. It is the city that is never silent, never stops, never sleeps.  Even when dressed in the alternating white of snow and grey of sleet of the last week, this mammoth place has a quiet hum of energy. Therefore it is no surprise that the New York public interest law sector is vast, fast-paced, and innovative, and that my discussions with its public interest lawyers threw up not only a wealth of new ideas, but also important challenges to some of the assumptions that I had previously, quietly, held. Here are a few reflections:

Should the “who” come before the “what”?

One initial research question of this project was ‘by what process should CLCs define their strategic objectives and priorities?’ Jim Collins, in his book Good to Great, challenges this by asserting that a key guiding principle of an effective organisation is that you first choose the right (disciplined) people, and only then the content of the work. image_2

The story of the Urban Justice Centre (UJC) in New York exemplifies the success, or at least the utility, of such an approach. Its founder, Doug Lasdon, told me how the UJC could just as well have been called the “Entrepreneurial Law Centre”, for its unique structure and modus operandii. The UJC is comprised of ten autonomous and independently funded legal projects, in areas as diverse as community development, Iraqi refugees and sex workers’ rights. Founded in 1984 by Doug, who then ran legal cases for homeless clients he met at soup kitchens out of a burnt out building in Harlem, the organisation now has numerous offices and a multi-million dollar budget. When asked how the UJC projects were selected, Doug responded with the Collins approach: you should hire people whose judgement and intelligence you respect and then provide them with the autonomy, independence and support to do what they want to do. The UJC website states that this “extraordinary level of autonomy has led to an unparalleled sense of ownership, translating to heightened motivation, risk taking, visionary thinking and general excellence.” The success of this approach is certainly evident in its trajectory from humble beginnings.

Collaboration and community engagement.

Something striking about the New York public interest law sector is the prevalence of closes collaboration between lawyers and community groups and/or organisers, in various configurations. This is, in my view, an alternative method to strategic objective, or case, selection. While not necessarily matching legal work to demonstrably pressing legal need, the work is targeted to where there are committed and organised individuals willing to support lawyers’ work and implement its outcomes through a broader campaign. This may result in more effectively amplifying the utility of the legal work done. These models included the following:

  • MFY Legal Services works closely with an organising group called the Coalition of Insitituionalised Aged and Disabled through its Adult Home Advocacy Project. Together they run ‘know your rights’ workshops in adult homes (long-term, supportive residential care for elderly people and non-elderly adults with disabilities). These two organisations work together to identify and respond to systemic issues in adult homes through this collaboration. image_1
  • Make the Road New York is a good example of a ‘law and organising’ organisation. It is a membership-based group that provides various services to the immigrant community of New York, including education, leadership skills and legal support services. It aims to “build the power of Latino and working class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services.” Therefore, its legal services arm supports its broader organising mission through a combination of direct service and systemic work. The latter is selected largely through members’ committees working on particular reform areas such as the Workplace Justice Project, or the Environmental and Housing Justice Project.
  • The UJC Community Development Project (CDP) works with and for community organisations by: (a) partnering with them to run legal cases, (b) preparing community-driven research reports, and (c) providing organisations with technical and transactional legal assistance. A case study is of its work is set out in ‘The impact of non-litigation legal work’ excerpt below.
  • The American Civil Liberties Union (ACLU) is another membership-based, nation-wide organisation that works with local, state-based affiliates to organise, and run, large-scale impact litigation. For example, its Racial Justice Program sought to test the proposition that by encouraging the issue of high-risk subprime mortgages in communities of color particularly vulnerable to financial hardship, large investment banks acted in a racially discriminatory manner and so violated federal civil rights laws. The ACLU worked with its Michigan affiliate to find appropriate clients in Detroit, an area particularly affected by the subprime mortgage crisis. In 2012, the ACLU, again working with other legal organisations, filed a lawsuit on behalf of a group of five African American residents (and a related not-for-profit institutional client) in Detroit against Morgan Stanley, a large investment bank. The complaint argues that Morgan Stanley’s securitization of mortgage-backed securities practices were racially discriminatory, and in particular that they violated the Fair Housing Act protection against discrimination in housing transactions, and the Equal Credit Opportunity Act, which bans discrimination for credit transactions. The complaint also asks the court to certify the case as a class action. The matter is currently ongoing.

Trust-building and clear communication.

On a related note, I also spoke to Ben Hoffman, an academic at Columbia University, about his former environmental litigation work with Peruvian communities through an organisation called Earth Rights International (see, for example, the recently settled case of Maynas Carijano v. Occidental Petroleum). In our discussion, Ben stressed the importance of building strong relationships with communities that lawyers work with and for, and to invest in this prior, as well as throughout, the legal process. This is an important point, as there is a risk that lawyers err toward the work they know best – the legal work – at the risk of neglecting relationships of understanding with individuals or groups unfamiliar, or even suspicious, of the law and its institutions. For those interested in an elegant and practical note on the application of community lawyering principles in the transnational context, do read Ben and his colleague’s excellent article on the issue: Benjamin Hoffman & Marissa Vahlsing, ‘Collaborative Lawyering in the Transnational Human Rights Advocacy’ (2014) 21 Clinical Law Review 255.

An example of non-litigation strategic legal work: community benefit agreements.

One under-appreciated area of legal work that I find fascinating is that which never reaches the courtroom. It is also arguably the bulk of legal work – demands, negotiations, settlements. One interesting strategic case study in this area is that which the UJC Community Development Project undertook with the Northwest Bronx Community and Clergy Coalition to oppose the proposed Kinsbridge Ice Skating Centre development. Through an extended negotiation process, assisted by a pro bono firm and Julian Gross of counsel, the Coalition and the developers negotiated a Community Benefits Agreement, under which the developer agreed to provide free ice time for area residents, green jobs and green building practices, living wages for local workers, over 50,000 square feet of space for community use, and purchasing direct from local businesses.[1]

Thinking carefully about remedies.

It is stating the obvious that a monetary award of damages obtained through a court process will not necessarily realise a public interest objective of a legal case. Therefore, it is important to consider from the outset what other, creative remedies or solutions there may be available. Ben Hoffman spoke of how in environmental litigation that sought to remedy the harm of environmental destruction sustained by a whole community, the award of damages to a small group of representative litigants by a court, while bringing a company to account, may also risk creating rifts within the community. Here we discussed the possibility of more creative solutions that can be drafted into a settlement agreement, presuming, obviously, the good faith of the parties. Doug of the UJC spoke of how he would err toward cases with clear, quantifiable remedies options, rather than ‘practice cases’ – cases that were about fixing the practice of an institution. While he acknowledged the latter to be as important, he also noted they were much more difficult to monitor for implementation.

Risk and resourcing.

Both the literature and interviews to date reveal a positive relationship between the willingness to take (calculated) risks and impactful, strategic legal work. My impression is that this is at least to some extent bound up in organisational resourcing, as most of the New York organisations I met with were largely, or entirely, privately funded, either through membership payments, and/or philanthropic grants. However, the broader question of how to most effectively undertake analysis, management, and intentional positioning of (again, calculated) risk within an organisation undertaking strategic litigation is an interesting one that warrants further consideration.

Measuring impact.

Through all the conversations I have had to date it is evident that most, if not all, my interviewees have an interest in measuring the impact of their organisations’ strategic legal work. However how to do this in a resource-effective and meaningful way is a complex question, and again an interesting one for further consideration. On this point, I met with Erika Daley of the Open Society Justice Initiative in New York, who is part of a team undertaking an ongoing empirical study on the value and impact of strategic litigation from a social change perspective. An interesting panel discussion on this impact question, recorded by the Initiative in 2014, is available online here.

Optimism.image_3

My discussions with lawyers in New York have been buoyant with a palpable optimism, a confidence in the capacity of law to result in meaningful social change. There may be many critical reasons for why this is more striking to me here than elsewhere: the federal constitutional Bill of Rights (and state constitutions), the more litigious legal culture, the longer and grander history of public interest lawyering, the nature of the lawyers this city attracts, their legal education, the predominantly private funding of these organisations, or the seemingly greater legal barriers to equality here of disadvantaged communities (and so the greater need to remain positive). However, I don’t think this is the whole story. There is perhaps also something about optimism and hopefulness that feeds itself. It is interesting to consider how this may be cultivated elsewhere.

Up next?

Look out shortly for a brief excerpt on a spontaneous visit to Los Angeles.


Images:

1. Central Park in the snow, Manhattan.
2. A banner at the Urban Justice Centre, Manhattan.
3. Outside Make the Road New York, Bushwick.
4. A poster on the wall of the Urban Justice Centre, Manhattan.
Tagged , , , , , , ,

Listening to CLC stories, and celebrating successes

Over the last few weeks, I have met, in person or virtually, with over 40 community and public interest lawyers across Victoria, in Sydney and Darwin. The purpose of these meetings has been to find out as much as I can about how different Australian CLCs operate, and to discuss if, and if so, how, they use their casework to advocate for social change. We have discussed tricks and tips, trials and tribulations, and challenges and successes.

Conversations have spilled out from one to another, and, on the very rare occasion, stalled. It has all been fascinating. One aspect of the CLC sector that has been particularly striking is its diversity. Differences between specialist and generalist centres, large and small centres, and varyingly funded and resourced centres have emerged as bright points of distinction. Another facet of this diversity is its breadth of stories and experience, and I have had the lucky privilege of hearing about the good work that these CLCs do. There are many great stories, ranging from large-scale litigation at the High Court, to systematic complaints to regulators with the aim of establishing an evidence base for reform, to making the decision that casework is not be the most appropriate vehicle for promoting access to justice in a particular region after all.

There is a dynamic discussion going on among some Victorian community lawyers about how to effectively, and ethically, tell our clients’ stories. As Rachel Ball writes in her insightful 2013 fellowship report, When I tell my story, I’m in charge, stories can “cut through prejudice, build understanding and motivate people to challenge injustice.” Yet my impression is that markedly less lively is the related discussion of how we, as community lawyers, tell our own stories of the work we do, and why we do it. Such stories can serve as points of learning, celebration and inspiration for those within the sector. They can also link the sector to future clients, funders, decision-makers and collaborators.

The good work of Australian CLCs

And so, in the spirit of story telling, and celebrating successes, below are a few snapshots of the good work currently being undertaken by CLCs: image1

  • Keeping it simple: making case and campaign selection more effective. In my discussions with lawyers at Women’s Legal Service Victoria, I was impressed by the Service’s simple, reformulated case selection guidelines, available here. Its centerpiece is a pared back, simple grid, with ‘impact’ on the vertical axis and ‘barriers’ on the horizontal. Through a democratic process, cases are selected according to this matrix, with cases that have the greatest impact (where systemic and individual impact is considered) for the clients with the greatest barriers to solving the problem themselves (similar to disadvantage) being the cases mostly likely to be selected. Financial Rights Legal Centre in Sydney used a similarly effective grid to select policy and campaigns priorities, again through a transparent and democratic process. The axes were ‘value of outcome for community’ on the vertical axis, and cost (in terms of time, resources, and expertise) on the horizontal.
  • Restructuring a generalist service around strategic priorities. In Sydney, I met with Redfern Legal Centre (RLC) CEO, Jo Shulman, and Senior Solicitor, David Porter. RLS undertook an impressive restructure about four years ago, in which, after a legal needs analysis, its generalist advice service was reconstituted into five key specialist services. These are: credit, debt and consumer; police and government accountability; employment; discrimination and human rights, and (the newer) international students clinic. They are in addition to the existing family violence and tenancy and housing legal practices.
  • Each has a triage clinic night, with the managing solicitor expected to focus not on the individual casework, but rather on the identification and response to systemic issues arising from this work. Each specialty practice also has the support of a pro bono partner. The Centre prioritises maximising its impact, providing a quality legal service, and the identification and removal of systemic inequalities in the legal system. This is evident in the statement of its vision, as well as in this excerpt from the 2012-2013 Annual Report:

Even in this climate, RLC has continued to pioneer and innovate. We have restructured the way we deliver our services to increase our reach and impact. We focus now on six areas of civil law that most often affect members of our community. Each key area is generously supported by a law firm pro bono partner. We have done this to ensure that the legal needs of our most disadvantaged clients are addressed in one place, without the need to refer them to another organisation and risk losing them on the referral roundabout, which many clients never come off. By setting ourselves up in this way, we are also better placed to identify and address systemic issues through policy work and community legal education.

  • David Porter runs the Police Accountability specialist practice at RLC. He explained the emphasis that the Centre places on the lodgement of complaints in relation to alleged police misconduct. This is used as a means of systematically building an evidence base for demonstrating what had previously been suspected, but unproven, weaknesses and inefficiencies within the complaints system. image2
  • Strategic litigation in relation to Alcohol Prevention Orders. In December 2014, Darwin’s North Australian Aboriginal Justice Agency (NAAJA) was awarded the Northern Territory (NT) Fitzgerald Human Rights Award in the Justice category. It is the largest criminal law practice in the NT, and works actively to promote a relationship of trust with its client base, particularly in remote communities. Among other things, NAAJA is currently undertaking advocacy and litigation in relation to Alcohol Prevention Orders (APOs).
  • Briefly, NT police can issue an APO to any person who is charged (not convicted) with an offence carrying a minimum penalty of six months imprisonment, where alcohol was a factor. Once on an APO, the possession or consumption of alcohol, or presence in a licensed premises (other than for work or residence), is prohibited, and a breach can result in imprisonment.
  • NAAJA is concerned that this law is racially discriminatory as it disproportionately affects Aboriginal people, and allows for overly broad police discretion contrary to the rule of law. NAAJA recently ran a successful case in the Supreme Court, Nummar v Pennuto & ors [2014] NTSC 34, in which the Court held that five APOs issued to one person were invalidly issued. In a recent news report on the case, Jonathan Huynor of NAAJA states that the decision not only demonstrates “a failure by police to follow the requirements of the APOs act in issuing APOs in this particular case, but it [also] highlights the excessively broad discretion given to police and the potential for APOs to be used in an oppressive way”.
  • Medico-legal partnerships. Inner Melbourne Community Legal (previously North Melbourne Legal Service) runs a free legal advice clinic out of the Royal Women’s Hospital for women experiencing family violence. It has, over the last two years, assisted over 100 women in this way. This model comes out of research that women are more likely to disclose violence to medical professionals, and that disclosure to lawyers may help lead to a decline in violence. More information on this program, entitled Acting on the Warning Signs, is available in a news article here. The IMCL lawyer managing the project, Linda Gyorki, also wrote a Winston Churchill Fellowship report on medico-legal partnerships. It is available here.
  • Integrated casework: mould in public housing. West Heidelberg Community Legal Service is running a tenants’ rights casework and reform project, through which it assists in many applications for the repair of public housing accommodation that is uninhabitable due to excessive mould and damp allegedly arising from structural defects. This casework then informs law reform work in this area. This has been a long-standing issue particularly in a cluster of public housing facilities in West Heidelberg. A news report on this issue can be found here, and more information about West Heidelberg’s Tenants Rights and Law Reform Project is available here.
  • Starting small, collaborating, and persisting. Door to door sales had always been a problem for vulnerable consumers. The psychological pressure of having someone in your home, eventually compels many to enter into contracts they don’t understand, for things they don’t want. In about 2009, Gerard Brody, then Director of Policy for Consumer Action Law Centre, wondered whether putting a ‘do not knock’ sticker could operate to revoke the implied licence to enter your land for the purposes of the law of trespass. In other words – was it trespass if someone knocked on your door when such a sticker was presented? After research it was decided that this argument had merit, and so the ‘Do Not Knock’ sticker, and campaign, were launched. DNK-sticker-226x300
  • The sticker proved popular, although many salespeople ignored it, and a website was established to gather complaints after this salesperson conduct. After a steady campaign, and receipt of hundreds of complaints over many years that were duly forwarded to the regulator, the Australian Competition and Consumer Commission (ACCC), the campaign came to fruition. The ACCC brought two cases in relation to the door-to-door sales of energy contracts and the sticker before the Federal Court: the Neighbourhood Energy case (2012) and the AGL case (2013). In both cases, the Court held that a failure to adhere to the request to leave in the Do Not Knock sticker was a breach of the Australian Consumer Law. As a result, in 2013 AGL announced it would cease door-to-door marketing. Energy companies in most states in Australia established ‘opt out of marketing’ lists for consumers. In January 2014, a drop in energy marketing complaints in Victoria was reported. More information about how the campaign was conducted is also detailed in Dr Liz Curran’s report, Solving Problems – A Strategic Approach (2013).
  • Supporting a strong advocate through a legal process. A historical focus of Peninsula Community Legal Centre’s law reform work has been family violence. Recently, it has provided legal assistance to Ms Rosie Batty in the coronial inquest of her son, Luke Batty. Eleven-year-old Luke was tragically killed by his father, who had a long history of mental health issues and family violence. At the time of his death Luke and Ms Batty were both ‘protected’ by a Family Violence Intervention Order. The work of PCLC supports the courageous and efficacious advocacy work of Ms Batty in the area of family violence, for which she has been named Australian of the Year in 2015. The Federation of Community Legal Centre’s Dr Chris Atmore has written a 12-part blog series on the coronial inquest, which is available here.
  • Representative proceedings in relation to disability supported services. Lawyers at Villamanta Disability Discrimination Legal Service, a small CLC of three lawyers and one principal in Geelong, assisted 53 clients to bring an application to the Victorian Civil & Administrative Tribunal (VCAT) opposing an inappropriate fee increase in supported accommodation. This fee increase, it was submitted, would have significantly impacted on the applicants’ ability to access other services and to participate in community life. The group was successful in its application, and the Villamanta Annual Report 2013-2014 set outs the outcome as follows:

Following Villamanta’s submissions to VCAT the notices of increase were withdrawn and it was made clear that the process by which any future increases would be arrived at would be significantly different, more transparent and improved. This outcome also had a positive effect for more than 1,500 other people who have a disability and reside in similar accommodation.

  • Environmental litigation: representing organisations rather than individuals. Following significant federal funding cuts imposed at the end of 2013, the Environment Defenders’ Office in Victoria courageously reformulated its funding structure and relaunched itself, brighter than ever, as Environmental Justice Australia (EJA). I met with its Principal Lawyer, Felicity Milner, to discuss its strategic litigation work, which is different from most other CLCs in that the EJA often represents environmental organisations, rather than individuals. We discussed, in particular, the Dual Gas & Ors v Environment Protection Authority [2012] VCAT 308 case, in which EJA represented Environment Victoria (one of four applicants) in challenging the works approval for a polluting, brown coal power station in the La Trobe Valley. The litigation was immense for a small community organisation: it involved 23 days of hearing, and an eventual decision of over 100 pages. The applicants were successful on many points, including on a dispute with respect to the applicants’ standing, as well as on substantive issues such as the way in which climate change considerations were to be taken into account by the Environment Protection Authority. VCAT made the decision to grant the works approval, but only on requirements that the company was unable to meet, eventually causing funding for the project to be withdrawn. The discussion raised interesting points about case selection, how to manage issues of standing and costs risks, and how collaborate between campaign and legal organisations can work to amplify impact and progress toward a shared objective.
  • Testing the periphery of legal principle. Financial Rights Legal Centre in Sydney recent ran the important case of Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24, which sought to test the extent to which duress may allow a consumer, acting under the real threat of violence, to avoid a contract where a lender has no knowledge of the duress. In this case, Mr Dunwoodie was compelled to enter into a series of loans under the compulsion and threats of a group of bikies. While the decision clarified the law in this area (going against the Mr Dunwoodie on this point), Mr Dunwoodie was ultimately successful on remitting the matter to the inferior court on the basis of an alternative argument. This is a valuable precedent in highlighting the limitations of the law in analogous cases, for example where real or threatened family violence is used to compel a partner to enter into a loan from which she does not benefit.

Mr Bugmy, an Aboriginal Australian who grew up in circumstances of social deprivation, had been sentenced for the offence in the District Court of New South Wales to a term of imprisonment comprising a non-parole period of four years with a balance of term of two years. The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate. The Court of Criminal Appeal, allowing the Director’s appeal, re-sentenced Mr Bugmy for the offence to a non-parole period of five years with a balance of term of two years and six months.

  • ALS, on Mr Bugmy’s behalf, argued that the Court of Criminal Appeal erred in holding that the extent to which his deprived background as an Aboriginal Australian could be taken into account in sentencing diminished with time and repeat offending. The Court held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender (although such considerations will not necessarily mitigate the sentence given the case by case analysis required). Following the publication of this decision, the ALS launched an effective media campaign to disseminate the court’s findings. A short summary of the case can be found here.
  • Innovative forums, and supporting clients though long litigation through “Walking Alongside Officers”. Since around 2007, Flemington-Kensington Legal Centre has run a specialist service in relation to complaints about police: the Police Accountability Project (PAP). Two cases run by this project are particularly commendable: the decision in Horvath v Australia (2014), and the ‘racial profiling case’, Haile-Michael v Konstantinidis (2013).
  • The former case concerned the assault of Ms Corinna Horvath by police in 1996. After exhausting all domestic remedies seeking compensation for Ms Horvath, in 2008 the PAP assisted her to file a complaint with the United Nations Human Rights Committee. After six years, the Committee held that in that case there had been a breach of article 2 (by lack of an appropriate remedy) in relation to breaches of articles 7 (cruel, degrading and inhumane treatment), 9 (arbitrary arrest) and 17 (privacy right) of the International Covenant on Civil and Political Rights. The decision is available here. Ms Horvath has received an apology from police and compensation. Further, laws have been changed to provide a remedy for victims of “tortious police misconduct”. An independent review of the complaint has also been announced. However, three of the four officers involved still continue to serve on the police force.
  • In 2009, PAP assisted a group of African-Australian men to lodge a complaint in the Federal Court in relation to police assaults, discrimination and racial profiling: Haile-Michael v Konstantinidis (VID 969 of 2010). This came after the Centre, and PAP, had received a steady stream of similar complaints over many years of police misconduct in relation to particularly new migrants in the Western parts of Melbourne. One important aspect of this case was the involvement of “walking alongside officers”. These officers were youth workers who provides support for the clients in that case (and others since that time), in non-legal, advocacy and referrals matters, so as to build trust, resilience, and the ability of vulnerable young people to withstand the pressures of long litigation. The rationale for these officers is as follows:

The Walking Alongside Program recognises that the predominately young people in this client group face complex and interconnected problems due to their experience with police misconduct and their involvement in complex legal responses – in addition to their vulnerable status as refugee or migrant background young people.

  • The case was settled on 18 February 2013 with an agreement for Victoria Police to publicly review its training and field contact practises.  Further, two lead litigants in the case, Daniel Haile Michael and Maki Issa, were jointly nominated for the Young People’s Human Rights Medal as well as inspirational and experienced youth leaders.
  • And finally – when more casework may not be the most important next step to justice. As Sargent Shriver commented, “more lawyers is a long way from more justice”. Therefore, the decision to not litigate, and focus resources instead on other projects, may at times be the most effective, and courageous act. This may require a deliberate, and strategic, redirection or allocation of resources. One example of such work is that which Shorna Moore, of Wyndham Legal Service, has been doing on the ‘Outer Sight Out of Justice’ report. When Shorna started to work at Wyndham Legal Service, she realised that the service was not reaching many clients from the outer reaches of its large geographical catchment area of the City of Wyndham. Upon further investigation, it became evident that this was because the legal service was too far away for many to travel to. More importantly, it brought to light a bigger, more pressing problem: the lack of sufficient, modern justice infrastructure in an area with one of the fastest population growth rates in Victoria. The Outer Sight report sets out a series of recommendations addressing this point, including the proposal for an innovative Wyndham Justice Precinct.

Along the way, I have also had discussions with: academics including Michele Leering of Toronto, Canada, who has written extensively (including this fascinating article) about reflective practice for legal professionals; Joel Townsend of Victoria Legal Aid in relation to its strategic advocacy work; and, Denis Nelthorpe and Carolyn Bond, two great innovators, and reinvigorators, of the Victorian CLC sector.

Postscript: on justice, and hope

The common thread of many of these discussions has been that of (in)justice, and of enhancing access to justice for vulnerable communities. This should not be surprising. These are some of the key reasons the sector was founded, and they are embedded in the mission and objectives statements of most CLCs. However, the instinct for injustice isn’t necessarily inherent, even for passionate community lawyers. The paralyzing, or at least myopic, effect of the “churn factor” is a theme that has arisen in almost all of these conversations. Because of this, the churn factor may be one of the key inhibitors to more effective systemic and law reform casework in the sector.

Therefore, to paraphrase Denis Nelthorpe – one starting point for more effective strategic work may be to simply, and actively, develop our instinct for injustice. For, if we don’t, it may be that we lose our ability to discern it all together, not out of unwillingness, but out of habit. Bryan Stevenson puts it another way, in terms of hope: “when we become hopeless, we become agents of injustice”. Interestingly, both these comments echo some psychological research on how one’s “belief in a just world” may limit the ability to act against injustice. Some of these ideas are canvassed in this article by Oliver Burkeman. There he states:

Faced with evidence of injustice, we’ll certainly try to alleviate it if we can – but, if we feel powerless to make things right, we’ll do the next best thing, psychologically speaking: we’ll convince ourselves that the world isn’t so unjust after all.

Tagged , , , ,