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Penny Martin[*]
Law cannot be divorced from politics, nor should it be, if it is to be responsive and part of an active democracy.
A discussion about practising in the public interest must start with the question: what is the ‘public interest’? The ‘gatekeeper’ role of this concept, determining access to the referral and legal assistance schemes of public interest law organisations, renders defining its meaning a critical issue. It is important to know how this concept is used in practice and its impact on public interest law. This article is an attempt to wade into these difficult waters.
Some may ask: why complicate matters? Lawyers ‘practising in the public interest’ seek to help those otherwise unable to access the legal system to pursue issues of broad public concern, for example, serious environmental degradation in residential areas. As long as there are lawyers willing to assist, what could be wrong with the indigent obtaining legal representation?
I argue that the public interest is an inescapably political concept that virtually dissolves under analysis. Undertaking public interest litigation and advocacy, we are directly engaging with the postmodernist indeterminacy of law and stepping into the political arena. However, more than in most areas of legal practice, we need to be aware of the individual and systemic implications of our work and develop our skills to best deliver public interest outcomes.
Public interest law is fundamentally different to legal work performed pro bono. It is not simply a substitute for legal aid and requires specific professional skills. Public interest lawyers need to be prepared for the ‘hard case’ in which the very meaning of the public interest is contended. In this context, I argue that perhaps ‘public interest’ is not always the most instructive marker for the practice of public interest law.
This article is in three parts. First, I explore the contours of the ‘public interest’ in this particular area of practice. Second, I consider the economic, legal, political and social impacts of such a definition and the consequences of lawyers undertaking public interest matters and systems advocacy.[1] I conclude by proposing a re-modelling of the concept of public interest law, in an attempt to provide a more principled basis for theory and practice.
Public interest law is primarily practised either by non-profit, non- governmental organisations or in university-based clinical programs. The majority of Australian-based public interest law organisations act as referral bodies for matters that meet their public interest criteria. They refer such matters to member law firms and barristers that agree to act on a pro bono or reduced fee basis. The Public Interest Advocacy Centre (PIAC) is the only non-profit Australian-based organisation that undertakes public interest law casework.
The public interest is used as a gatekeeper concept to determine which cases will be allocated scarce organisational or pro bono resources. The term ‘public interest’ generally relates to the broader context of a particular legal matter and the status of the client. It can attach to any area of law.
PIAC defines public interest matters to be those that ‘… affect the general community or a group in the community. PIAC will give priority to matters involving significant harm and adversely affecting disadvantaged sectors of the community’.
The Public Interest Law Clearing House (Vic.) Inc. (PILCH — Vic) and the Public Interest Law Clearing House Inc. (PILCH — NSW) criteria are in virtually identical terms, both providing assistance to non-profit organisations with public interest objectives and individuals or groups who are ineligible for legal aid and unable to afford a lawyer. The public interest test is as follows:
the matter must require a legal remedy and be of public interest, which means it must:
• affect a significant number of people, not just the individual; or
• raise matters of broad public concern; or
• impact on disadvantaged or marginalised groups; and
• it must be a legal matter which requires addressing pro bono publico (‘for the common good’).[2]
The Queensland Public Interest Law Clearing House Inc. (QPILCH) adopts a similar approach, with a further alternative that the legal matter ‘requires legal intervention to avoid a significant and avoidable injustice.’[3]
The determination of a matter as meeting these criteria is influenced by the practical consideration of organisational resources, expertise, potential coalitions with other community organisations and the likely impact of any action. The matter must also be of sufficient legal merit to justify the expenditure of resources.
A number of themes arise out of these criteria that operate at different levels and coalesce to form a concept of public interest. First, there is the ‘poverty’ conception of the public interest, that is, it is in the broader public interest to provide legal assistance to the indigent. This concept has also been referred to as ‘procedural’ justice[4] and is closely linked to concepts of ensuring access to justice. Second, there is the concept that an individual forms part of a disadvantaged or marginalised group and that the public interest is served by ensuring the rights of that group are protected. Third, at the highest level of extraction, there is a concept that some issues can legitimately be seen to raise issues of broader public concern, transcending the interests of the individual (for the ‘common good’). This conception would encompass the more ‘substantive’[5] aspects of the interests at stake, for example, environmental cases undertaken as amicus curiae or matters testing the limits of implied rights under the Constitution.
Often, a public interest organisation is faced with an individual who has a legal issue that appears, at first glance, to only affect that individual’s interests. The issue is whether one can apply what I term an ‘individual extension’ approach and extrapolate a public interest issue from these circumstances. In my experience, the particular issue is viewed from the perspective of the direct and indirect impacts of non-representation and any indications of systemic injustice raised by the particular case. It is perhaps here that public interest law is on its shakiest ground.
‘The public interest’ is a concept used in a number of intersecting areas of public life. We talk about the public interest in relation to the media, politics, globalisation, privatisation and the environment. In relation to international issues (or denial thereof), we often invoke the ‘national interest’. Public interest is usually used to denote the placement of an issue, interest or information in the public realm.
What is ‘public interest’ is determined by politicians, newspaper editors, judges, members of tribunals and consumer buying habits. Merely the placement of an issue (by whoever is enabled either positively, or negatively in the absence of political dispute or High Court appeal, to conclusively determine the issue) into the category of public interest is enough. The concept generally does not require that any particular ‘interest’ be exerted on the issue or that it be owned by any sub-set of the public. It does not require any particular outcome or cause of action, other than that explicitly prescribed by the user.
What is public interest is a value judgment.[6] It will depend on views about the extent of the polity’s responsibility for an individual and will be ‘grounded in philosophical and cultural understandings about law and society.’[7] If we accept this, few things can be considered conclusively ‘public’ (except, perhaps, the more generally accepted notion of universal human rights). Public interest is yet another site for political struggle: democratic pluralism, different views on the appropriate size and role of the state, competition for social and economic goods and cross-cutting interests (which often conflict within apparently homogenous groups) mean that there can be no fundamental identity of interests. Indeed, why shouldn’t ‘right-wing cause lawyering’[8] have equal claim to the mantra of ‘public interest law’?
If there is no definitive ‘public interest’, what are we talking about when we make reference to it? It could be argued that the term is used in an aspirational sense, to describe what we believe should be of public concern, justified by ascribed community values and our desire for a society that promotes fairness and human dignity. It is a process that is largely conjectural, regardless of the attractions of its idealism. By supporting what we may deem to be ‘popular causes’ we are using the law as both ‘a framework and a tool for change.’[9]
This usage of the term ‘public interest’ could be seen as a ‘persuasive definition,’[10] because its emotive meaning remains static (ie. our general feeling that the ‘public interest’ is something indisputable and important) but the descriptive meaning of the word is altered to serve the interests of the user. A simplified example: until comparatively recently, the government argued that it was in the public interest to remove indigenous children from their parents. The public interest is now being activated to support campaigns for a reparations tribunal for indigenous communities.[11] Hence, concepts of public interest change over time and cross political borders. In almost any assertion of the public interest, there will be those who trenchantly disagree.
The strategies used by lawyers ‘practising in the public interest’ are as complex and politicised as the theory of what is in the public interest. The ‘individual extension approach’ use of the concept of public interest often results in the assertion of an interest that may presently fall outside the purview of existing legal rights. This requires the use of creative, cross-disciplinary and unconventional strategies.
These strategies encompass both the legal and non-legal. Most traditional is that of public interest litigation. This may include representative actions, ‘test cases’ and acting as amicus curiae or intervener. Other legal strategies may include negotiation, pre-litigation strategies and legal drafting. Non-legal activities may include alternative dispute resolution, community development, legal education, advocacy in relation to policy and legislative issues and direct social action. Such approaches may operate concurrently or may be adopted as a campaign develops.
Often what attracts lawyers to this area of practice is its direct relationship to the development of the law and public policy. However, it might be argued that in directly pursuing policy issues, lawyers are unduly influencing the separation of powers and encouraging the courts to incur upon the proper territory of the legislature and executive, the weighing of conflicting interests. [12] Public interest law should not force a ‘second guessing’ of public policy by seeking to reopen debate on resource allocation issues already determined by the majoritarian system.
The diversion of policy arguments into the legal discourse renders the mediation of political issues elite and exclusive. Complex issues are played out in an adversarial setting that is ill-equipped for negotiation and compromise. However large the degree of value judgment and indeterminacy in our legal system, legal rights are still delineated by legal principles set down in our constitutions, legislation and common law.
Closely related are economic efficiency arguments. Public interest law seeks to address government failure (ie the failure of a particular policy to encompass certain interests or provide for a certain group of society).[13] Litigation is a costly and unpredictable means to address inequitable government policies. The risk of adverse costs orders in public interest matters can make public interest strategies unpredictable as a means of bringing about social change[14] (ie clients may not be willing to bear the risk) and it is largely inefficient for the state to be forced to allocate public funds to legal costs to resolve discrete policy issues.
In this sense, even supporters of public interest law may argue that the activities of public interest lawyers lessen the incentive for governments to allocate resources to legal aid and community legal services. Private public interest law activities, for all their advantages of independence from government, may weaken the government as the primary guarantor of individual rights and reduce direct democratic participation.[15]
It may also be argued that public interest law is ‘law from the top’ and elitist within the profession itself. Lawyers are trained to believe in the dignifying process of the legal argument, that ‘a day in court’ is the ultimate in individual vindication. In focusing on public interest outcomes, the lawyer may encounter conflicts between her desire to obtain a public policy outcome and the legal and personal needs of her client. With severely disadvantaged clients there can sometimes be the tendency to remodel the solicitor–client relationship and fail to seek instructions from the client as frequently as in non-public interest matters. A professional public interest lawyer should be aware of such risks but a power imbalance may still exist, perpetuating the institutional discrimination and disadvantage experienced by the client in his or her legal issue.
A formally trained lawyer (particularly before the proliferation of clinical law programs and legal volunteerism amongst law students) may not be adequately skilled to undertake the essential follow-through advocacy, community building and legal education activities. This may be particularly so for lawyers undertaking public interest work as part of their firm’s pro bono program, when their skills and experience are restricted to those of a specialised legal practice. These practitioners are inevitably constrained by their budgets and the perception of pro bono work within their particular workplace. Further, few of us have many clues about formulating public policy. We are largely a conservative profession and, in the majority, represent a reasonably homogenous socio-economic group.
Public interest lawyers may mount a strong argument that public interest law serves an essential function in a democratic society. In addressing the political and economic failures of the state, public interest law ensures that the law is shaped with regard to the disadvantaged or marginalised and that important public principles (for example, open government and the rule of law) are debated in a powerful public institution. Public interest lawyers can raise novel arguments before the courts. Apart from the important object of ensuring public confidence in the judiciary, public interest law ensures the law operates, as much as possible, in a substantively neutral manner and that administrative overzealousness does not go unchecked. It also ensures that the law acts as an effective check on the exercise of executive power.
Lawyers have the skills to construct effective arguments — whether it be before the courts, before a parliamentary committee or in a meeting with a private client. With adequate knowledge and experience, lawyers can bridge the middle ground in controversial political issues and provide aggrieved groups and individuals with an opportunity to assert their legal rights. Lawyers can also make workable suggestions for legislative reform. Public interest law reduces the power imbalance between disadvantaged clients and government or private sector opponents.
By engaging in advocacy and public education, in collaboration with policy professionals, public interest lawyers can assist in the development of proactive and equitable public policy. However, lawyers should also acknowledge the limits of their skills and role as legal practitioners. They need to choose their forum and choose the most effective place (and the most effective advocate) to raise issues of policy (for example, there will be a limit to the policy arguments that may be raised in formal litigation).
It may be that society elects to redress the outcome of public interest litigation by enacting legislation. In this process, public interest litigation is socially valuable in the sense that it tests these limits of societal tolerance. Nothing is lost by ventilating these issues in the courts. Indeed, it ensures that the judiciary is made aware of critical issues in the law as they impact on society and that the myth of legal objectivity is dispelled. Further, it can move ‘out of touch’ government to take political action thus ensuring an unbroken circuit between individual rights and communitarian concerns, and between the three arms of government.
Public interest law, when undertaken in close collaboration with community lawyers and local communities, can enhance democratic participation and build the capacity of civil society. The purpose of public interest, in appropriate cases, can be located in the interests of the local community, rather than in a hypothetical sense of the ‘public interest’.. Public interest law can also ensure that effective collaborations are developed between legal professionals — whether they are in public or private practice.
Adopting a ‘community organising’ model as one strategy, (as has the New York Lawyers for Public Interest and a number of Australian community legal centres), ensures that conduct of public interest law issues is sited within the community in which they have developed. Such an approach links lawyers into the broad range of community issues and most importantly, ensures that clients are engaged with the legal processes initiated on their behalf to ensure that the outcomes are effective and meaningful.
The courts have traditionally been the fora for the mediation of the balance between individual rights and collective rights. Public interest law is a means by which individuals may exercise their franchise in a democratic society, by prosecuting their civil and human rights. Indeed, one of these rights is to have adequate access to lawyers and legal services, without discrimination (particularly for the poor and disadvantaged).[16]
As lawyers, we should not be reluctant to step into the political fray – because even in denial and inaction, we are still part of the debate. However, we should reason carefully as to whether our action will be effective, appropriate and one that is most likely to bring about lasting resolution to a particular issue. The next section will suggest one way in which this might be done.
If we can accept that public interest lawyering makes a worthwhile social contribution and we can tolerate the highly politicised nature of public interest law practice, we should attempt to make the practice of public interest law as efficient as possible.
Ideally, we need to base our decisions to pursue public interest matters on the clearest foundations to ensure we can obtain the broadest possible support for public interest outcomes.
The human rights law discourse is far from adverse to political debate. Inhabiting the hinterland between law and politics and international and domestic fora — undeniably legal but largely unenforceable — international human rights law must often use political arguments to assert its existence. For this reason, the human rights discourse and public interest law can work together to achieve their common, and disparate, goals. Further, lawyers, as part of civil society, have virtually a professional obligation to ensure rights are asserted.[17]
Public interest law can borrow on the strengths of international human rights law. In cases where we seek to argue the ‘individual extension approach’, the public interest element may be located in the fact that a particular action or interpretation would deny fundamental human rights (although those rights are argued to be of fundamental importance to the community, according to the universalist approach).
Of course, concepts of human rights are as contentious as the concept of ‘public interest’.. However, in litigation and advocacy, to raise the issue of clearly stated rights formally adopted by the Australian government on our behalf, may have particular dialectic force.[18] By invoking the discourse of rights, public interest lawyers can also more cogently argue that governments should allocate adequate funds to legal aid and policy development. Rather than disputing conflicting views of public interest, the ‘onus’ would move to the government to show why a particular right should not be protected in the circumstances. By foregrounding the aspirational (yet undeniably legal) aspects of human rights and demanding their implementation, we can more effectively advance the aspirational aspects of public interest law. Even in matters against non-governmental entities, arguments based on human rights would have resonance due to the increasing acceptance of state responsibility for the human rights abuses of non-state actors.[19]
Broader than this, human rights law enables us to directly consider the balance between the individual and community interests (which, in the ‘public interest’ conception, may be equally convincing assertions of the ‘public interest’), whether it be in litigation, advocacy, policy formulation or in contributing to the work of national human rights institutions. Human rights also provides for the interests of minorities and particular groups.[20] Apart from non-derogable rights, for example, those stated in Article 4(2) of the International Convention on Civil and Political Rights (ICCPR), many human rights are subject to limitation as determined by law and as necessary in a democratic society to protect the rights and freedoms of others, public order, public health or morals, national security or public safety. In declared states of emergency, these limitations can be invoked. However, more generally, human rights norms themselves embody the balance between state interests and individual rights, especially in the implementation mechanisms required of signatory states.
The development of human rights law has, to some extent, blurred the traditional distinctions between law and politics and the proper roles of the three arms of government. As an expression of the will of ratifying states, human rights law challenges the democratic allocation of social goods. Although human rights norms must be incorporated into Australian law before the rights are ‘alive’ in the domestic jurisdiction, the overlay of international human rights law exerts a real claim which filters into the domestic legal and political realms. All parts of government are internationally responsible for upholding international human rights. The cross-fertilisation of ideas in the human rights discourse means that, whether or not norms are formally incorporated into Australian law, the courts are increasingly discussing issues of fundamental rights and indicating areas of political and legal failure. This undeniable development makes arguments against the political aspects of public interest law even harder to maintain.
The human rights discourse also empowers public interest lawyers to move outside the domestic arena to initiate individual communications before the United Nations treaty body committees or submit shadow reports concurrently with government periodical reports to these committees. This, and international political pressure, can be a powerful weapon in public debate. In this way, domestic lawyers can link with lawyers in other countries, share strategies and work within a common framework of standards.
Human rights law provides public interest lawyers with a coherent and increasingly powerful framework within which to pursue the more public policy and aspirational aspects of public interest law, with a focus on the individual. Through vindication of individual rights, lawyers can engender an understanding of the claim of rights and the obligations of state to govern in a manner that fulfils its human rights obligations. Combined with the prosecution of extant or near extant rights in domestic law, this collocation of strategies could be very forceful indeed.
Public interest law is complex and elusive mainly because it enters into the interstitial issues of public life: the constantly evolving relationships between law, politics, public policy and governance. Law cannot be divorced from politics, nor should it be, if it is to be responsive and part of an active democracy. The practice of public interest law cannot be effective in its stated goals of pursuing fairness, efficiency and justice unless practitioners are willing to face the difficult political issues.
I have suggested that the practice of public interest law can be improved by drawing on community lawyering and social justice law approaches and by making reference to the norms of international human rights law, where appropriate. It is not suggested that these approaches supplant the more traditional approach to public interest law. Rather, that they may sharpen and enliven it. By building effective collaborations with individuals, local communities and internationally, we can ensure that our collective voice is louder, clearer and more legitimate.
[*] Penny Martin is a lawyer at Minter Ellison Lawyers, currently on secondment to the Public Interest Law Clearing House (Vic.) Inc. in Melbourne.The views expressed in this article are entirely those of the author.© 2003 Penny Martin (text)
[1] Duffy, Beverly, Working the System: A Guide for Citizens, Consumers and Communities, Public Interest Advocacy Centre, Sydney, 1996.
[2] Public Interest Law Clearing House, Do you need free legal assistance? PILCH may be able to help you, pamphlet.
[3] It could be argued that this criterion introduces another area for value judgment and conjecture in the assessment of what will constitute ‘significant and avoidable injustice’.
[4] Kinley, David, ‘Rights, Responsibilities and Public Interest Advocacy’ in Public Interest Advocacy Centre, Courting the Public Interest: A conference on the practice of human rights law, 28 April 1999, Public Interest Advocacy Centre, 1999.
[5] Durbach, Andrea, ‘Defining Pro Bono: Challenging Definitions’, paper delivered at For the Public Good: The First National Pro Bono Conference, 4-5 August 2000, at <http://www.piac.asn.au/ publications/pubs/DefiningProBono.pdf> accessed on 23 November 2002.
[6] ‘ “A nebulous concept”, unless given … further content of a legally normative nature’: per Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 84 referring to Tadgell J in the Full Court of the Supreme Court of Victoria in South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 at 311. See also Australia Law Reform Commission, Costs Shifting — who pays for litigation (ALRC 75), 1995, Part 4.
[7] Rekosh, Edwin, ‘Preface’ in Public Interest Law Initiative in Transitional Societies, Symposium on Public Interest Law in Eastern Europe and Russia 29 June to 8 July 1997, Colombia Law School, New York, 1997, p.2.
[8] For example, the litigation conducted by the Pacific Legal Foundation in the United States: see Scheingold, Stuart A., ‘Cause Lawyering and Democracy in Transitional Perspective: A Postscript’, in Austin Sarat and Stuart Scheingold (eds), Cause Lawyering and the State in a Global Era, Oxford University Press, 2001, p.401, note 1.
[9] See ref 7.
[10] Walton, Douglas, ‘Persuasive Definitions and Public Policy Arguments’, (2001) 37(3) Argumentation and Advocacy 117.
[11] See the Reparations for Stolen Generations Project at <http://www. piac.asn.au/system/stolengen.html> accessed on 29 December 2002.
[12] An argument raised by the opponents to the writ of habeas corpus in Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452 and Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491. See also the comments of John McMillan on Radio National, The National Interest, 25 November 2001.
[13] Weisbrod, Burton A., and others, Public Interest Law: An Economic and Institutional Analysis, University of California Press, Berkeley, 1978, pp.30-41.
[14] See Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 for discussion of the principles relating to the award of costs in public interest matters. Although the court did not propose to modify the general rule that ‘costs follow the event’, the court did ‘indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise’ (per Black CJ and French J at para [13]).
[15] Rabkin, Jeremy, ‘Public Interest Law: Is it in the ‘Public Interest’?, (1985) 8 Harvard Journal of Law and Public Policy 341, pp.343-5.
[16] Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc A/CONF.144/ 28/Rev.1 at 118 (1990).
[17] Basic Principles on the Role of Lawyers, above, ref 16, article 14.
[18] Unincorporated human rights norms can be used in our ‘dualist’ system in the interpretation of legislation, in the resolution of uncertainty (see, for example, ‘The Bangalore Principles,’ 14 Commonwealth Law Bulletin 1196), the development of the common law (Mabo & Ors. v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1), to establish a legitimate expectation in administrative law (Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273) and possibly in the interpretation of the Constitution itself (Newcrest Mining v The Commonwealth [1997] HCA 38; (1999) 190 CLR 513): see Kirby, Michael, ‘Domestic Implementation of International Human Rights Norms’[1999] AUJlHRights 27; , (1999) 5(2) Australian Journal of Human Rights 109.
[19] One example, article 2(1) International Covenant on Civil and Political Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No 16) at 52, UN Doc A/6316 (1966), 999 UNTS 171, entered into force 23 March 1976. See generally Velasquez Rodriguez case, Judgment of 29 July 1988, Inter-Am Ct HR (Ser. C) No 4 (1988).
[20] International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, entered into force 4 January 1969; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, GA res 47/135, annex, 47 UN GAOR Supp. (No. 49) at 210, UN Doc. A/47/49 (1993); Draft Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub.2/1994/2/Add. 1 (1994).
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