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
- 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.
- 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  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.
- 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  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  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.
- High Court litigation addressing Aboriginal disadvantage. While acknowledging that it is not strictly within the scope of my project, one powerful example of how much a CLC can do is the High Court case of William David Bugmy v The Queen  HCA 37, which was conducted by the NSW Aboriginal Legal Service (ALS) (Western Region). The facts of the matter, as summarised by the High Court, are as follows:
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.