Alford, Amanda --- "Community legal centres making rights real: Legal assistance as a cornerstone of access to justice" [2019] PrecedentAULA 53; (2019) 154 Precedent 4

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COMMUNITY LEGAL CENTRES – MAKING RIGHTS REAL

LEGAL ASSISTANCE AS A CORNERSTONE OF ACCESS TO JUSTICE

By Amanda Alford

Access to legal help is an essential service that should not be dependent on an individual’s bank balance, or their capacity to afford private legal representation. However, there are significant barriers to obtaining legal help in Australia.

Combined with high levels of both met and unmet legal need,^[1] many people experiencing discrimination and disadvantage must rely on one of the four publicly-funded legal assistance providers in Australia – Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services (ATSILS), Family Violence Prevention Legal Services (FVPLS) and Legal Aid Commissions (LACs).

These legal assistance services play unique but complementary roles and are vital to ensure that essential legal help is available to people and communities across Australia. The services empower and walk alongside communities, and work to address structural and systemic inequalities within the justice system and society more broadly. In this sense, the community legal sector makes rights real.

Unfortunately the sector is increasingly unable to meet the rising demand for assistance and, consequently, people are unable to access the legal help they need. At a conservative estimate, community legal centres across Australia are forced to turn away over 170,000 people each year.^[2]

This inability to access legal help has real consequences for the people and communities we work with; legal help that can be critical to ensuring personal safety, ongoing employment, access to secure housing, or an end to discrimination. This rising demand for legal assistance is taking place in the context of limited increases in Commonwealth funding for the sector and inadequate funding by many state and territory governments. It is also occurring in a context in which we are witnessing a steady erosion of rights, which often disproportionately affect people already experiencing discrimination and disadvantage.

This article examines how community legal centres and other legal assistance providers facilitate access to justice through their work with people and communities across Australia, and discusses some of the challenges facing the sector. It concludes by outlining a path forward that combines changes to ensure the ongoing viability of the community legal sector, as well as broader reform of the legislative, policy and funding context within which the justice system operates.

WHAT ARE COMMUNITY LEGAL CENTRES AND HOW DO THEY HELP?

Community legal centres provide essential legal services to hundreds of thousands of everyday people, and people experiencing discrimination and disadvantage across Australia each year. Centres are embedded in local communities, and work in a holistic, client-centred and multidisciplinary way. The work of community legal centres cuts across a wide range of areas of law and policy, including family law, credit and debt, consumer law, family violence, housing, elder abuse, employment and social security.

Centres play a crucial and effective role in assisting people to resolve their legal problems at an early stage, in meeting rising demand for legal assistance and contributing to systemic reform. Centres also utilise a range of early intervention and preventative strategies such as community legal education and community development, individual skill-building, systemic advocacy, and law and policy reform activities. More broadly, community legal centres play a key role in community engagement, developing and facilitating partnerships between legal assistance providers and legal and non-legal services.

The work of the sector has significant benefits not only for the individuals with whom centres work and their families and communities, but also for governments and the broader community.

From an efficiency perspective, for example, the Productivity Commission has highlighted that the work of centres generates savings for government and the community, noting that the ‘positive spill-over or flow-on effects to the wider community from providing legal assistance services’^[3] justify government involvement in, and funding of, legal assistance services. The Commission has also highlighted that in many types of disputes, the avoided or flow-on costs are greater than the cost of providing funding for legal assistance services.^[4] Other reviews of the sector have also outlined benefits of the sector, including:

• ensuring that legal rights can be enforced;

• preventing civil problems from escalating into criminal matters;

• avoiding costs to other government services; and

• improving the efficiency of court proceedings.^[5]

While the work of community legal centres benefits individuals, it is their law reform, policy and advocacy work that helps to identify unfair laws and systemic injustices. This work spans seeking compensation for unlawful detention, expunging wrongful convictions, protecting vulnerable witnesses, changing government and business practices, protecting consumers and making transport accessible.^[6]

More broadly, community legal centres, like other community-based organisations, use their connections with, and place in, communities to walk alongside people and communities and amplify their voices to demand fairer systems and a more equal society.

While the focus of this article is largely on community legal centres, it is also important to acknowledge the vital role played by the other legal assistance services (ATSILS, FVPLS and Legal Aid Commissions) in communities across Australia. In particular, the importance of community controlled organisations providing services to Aboriginal and Torres Strait Islander peoples cannot and should not be underestimated.

A SECTOR UNDER THREAT?

The capacity of the sector to continue its vital work is being increasingly challenged. This threatens access to justice for hundreds of thousands of people across Australia. The challenges arise from the operation and interaction of a multitude of factors, including chronic underfunding of the sector, increasingly hostile regulatory environments, and threats to the independence and work of civil society organisations more broadly.

For example, in recent years the sector has faced (and in some cases has successfully opposed):

• significant funding uncertainty;

• complete defunding of some centres,^[7] proposed 30 per cent cuts to Commonwealth funding and increasing use of pilot projects and opportunities;

• restrictive funding conditions and the burden of a multitude of numerous reporting requirements;

• significant national inconsistency in the funding and administration of the sector, which results in uncertainty for people and communities depending on where they live, and particularly for people who live and travel across state and territory borders;

• specific restrictions on policy, advocacy and law reform work in funding agreements;^[8] and

• proposed changes to legislative and regulatory requirements applying to not-for-profit organisations that would have the effect of stifling advocacy.^[9]

More broadly, there have also been some legislative and policy changes that have negatively and disproportionately affected the people we work with and contributed to a rising demand for our services.

A PATH FORWARD

There are a range of steps that would address some of the challenges facing the sector, some of which involve reforming the broader legislative, policy and funding context within which the justice system operates. Importantly, however, increased funding is not the only answer. Some of the possible solutions include:

• properly funding essential services, characterised by certain, predictable and sustainable funding for legal assistance services;

• greater Commonwealth leadership and vision for the sector;

• valuing and supporting the complementary but unique roles of legal assistance services – for example, this should include retaining a stand-alone independent funding program for ATSILS;^[10]

• stronger protections for civil society, including in particular the right to advocate; and

• a number of other broader reforms, including putting people and communities at the centre of how legislative and policy frameworks are designed, operated and reviewed, as well as a stronger more positive human rights framework in Australia.

Some of these issues are considered in more detail below.

Certain, predictable and sustainable funding

Certain, predictable and sustainable funding from the Commonwealth as well as state and territory governments is essential to ensure that people in communities across Australia can get the legal help they need.

Funding for community legal centres has typically been characterised by significant uncertainty. Funding certainty is key to ensuring that the community legal sector can continue to deliver high-quality services to people across Australia in an effective and efficient way.

Community legal centres need funding certainty to plan and provide efficient and effective services. The people and communities we help across Australia need to know that we will be there to help them when they need it most. Our organisational partners and supporters need to know that it is worth investing in relationships, partnerships and collaborations that increase the provision of effective and joined-up services and referrals. Funding certainty increases the effectiveness of centres, enabling them to make decisions about service delivery, staffing and organisational sustainability.

The major source of Commonwealth government funding to community legal centres is the National Partnership Agreement on Legal Assistance Services 2015–2020 (NPA). The current NPA expires on 30 June 2020, with negotiations to begin shortly for a new National Single Mechanism to replace the current NPA.^[11]

In addition to funding certainty, there is also a need to increase the overall quantum of funding to the sector contributed by both Commonwealth as well as state and territory governments. A number of key inquiries and reports have been clear about the need to increase overall funding to the legal assistance sector to address critical and immediate needs. For example, in 2014, the Productivity Commission of Australia recommended a $200 million increase per annum as an interim measure (including $120 million of Commonwealth funding),^[12] and in 2018 the Law Council of Australia Justice Project recommended a $390 million increase per annum, at a minimum.^[13]

Without a whole-of-government approach to funding and support for the sector, this level of funding injection is unlikely. As a result, government must take a whole-of-government approach to engagement with the sector, including identifying the work of the sector across ministerial portfolios (beyond the Attorney-General’s portfolio), to support greater whole-of-government coordination and engagement with, and funding of, the sector.

The challenges of Commonwealth funding are compounded by the inconsistent funding of legal assistance across Australia, which means that access to essential legal advice and assistance differs considerably, depending on where someone lives. This ‘postcode lottery’ underscores the importance of Commonwealth leadership in developing a funding mechanism that ensures adequate investment by all levels of government in legal assistance services.

The impact of chronic underfunding of the sector on people and communities across Australia, as well as on courts and the justice system, cannot be underestimated. In addition, the Productivity Commission and others have been clear – funding legal assistance services saves the government and community significant downstream costs. Without such an investment, we are likely to see the escalation of legal problems, higher rates of self-representation before the courts, and flow-on effects for other services. In a sector that already turns away over 170,000 people each year, it will deny justice to many more people each year.

Protecting advocacy

Community legal centres have a long and successful history of bringing about systemic change through policy, advocacy and law reform. This work is crucial in identifying and encouraging reform of laws, policies and practices that are not operating effectively or equitably.

The value of this work has been recognised in a number of contexts, including the Productivity Commission Inquiry into Access to Justice Arrangements.^[14]

Unfortunately, however, and despite the existence of the Not-For-Profit Sector Freedom to Advocate Act 2013 (Cth), the current NPA imposes restrictions on the advocacy work that Commonwealth-funded community legal centres can undertake. This restriction has had a chilling effect on the policy, advocacy and law reform work of the sector. It is clear that there is a need to remove this restriction as part of the upcoming negotiations of the new National Mechanism that will replace the NPA and for government acknowledgement of the value of this work.

More broadly, in the context of the ongoing erosion of human rights in Australia, civil society and others must play a crucial role in holding government and powerful interests to account and undertaking advocacy. There have been a number of threats to this advocacy in recent years, including, for example, through proposed changes to electoral funding and disclosure laws. These proposed laws would have severely limited the ability of charities and not-for-profit organisations to undertake advocacy.^[15] If we are serious about access to justice and protecting and upholding the rule of law, we must be vigilant in opposing these slow and sometimes indirect attempts to stifle legitimate and important advocacy by civil society.

Other reforms

There are a number of other reforms that are central to ensuring that the broader legislative, policy, regulatory and human rights frameworks are sufficiently strong to support and facilitate access to justice.

At a fundamental level, this must involve a fundamental re-think of the justice system that is most appropriately guided by people and communities. This re-evaluation needs to be based on principles of co-design and put people and communities at the centre of the systems, policies and services.

There is an obvious need for a stronger human rights framework in Australia that more fully complies and engages with our international human rights obligations; provides meaningful opportunities to protect and promote rights; and encourages a rights-based approach and engagement across government, the private sector and civil society.

The community legal sector provides a vital safety net that underpins the operation of the justice system. As noted, it often falls to the community legal sector to make rights real – to ensure that people and communities can access legal help, have their voices heard and their rights protected and promoted.

Ensuring a thriving community legal sector is key to ensuring access to justice; however, it is only one aspect. Broader systems change that value and fund essential services; put people and communities at the centre of decision-making; and introduce stronger and more positive rights protection in Australia are all important steps towards greater access to justice for people and communities across Australia.

Amanda Alford is the Director of Policy and Advocacy at the National Association of Community Legal Centres (NACLC), which is the peak body for all community legal centres in Australia. EMAIL [e-mail].

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^[1] See, for example, Productivity Commission of Australia, Access to Justice Arrangements Inquiry Report No 72 (September 2014) 107 and Finding 2.1.

^[2] See, for example, National Association of Community Legal Centres, National Census of Community Legal Centres, 2016 National Report, [2.2].

^[3] Productivity Commission of Australia, above note 1, 666.

^[4] Ibid, Appendix K, 1054.

^[5] A Cameron, Review of NSW Community Legal Services (2017) [2.4.2].

^[6] For a recent overview of the systemic law reform, policy and advocacy work undertaken by community legal centres, see: National Association of Community Legal Centres, National Submission to the Review of the National Partnership Agreement on Legal Assistance Services (October 2018), <http://www.naclc.org.au/resources/181004%20NACLCNPAReviewMainSubmisionFINAL.pdf> .

^[7] For example, the Environmental Defenders Offices were completely de-funded by the Commonwealth Government in 2013.

^[8] For example, the current National Partnership Agreement on Legal Assistance Services 2015-2020 contains a restriction on the use of Commonwealth funding by community legal centres for policy, advocacy and law reform work. Sch B, cl B7 states: ‘Commonwealth funding should not be used to lobby governments or to engage in public campaigns. Lobbying does not include community legal education or where a legal assistance service provider makes a submission to a government or parliamentary body to provide factual information and/or advice with a focus on systemic issues affecting access to justice.’

^[9] For example, the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (Cth) as initially drafted and introduced.

^[10] The Commonwealth government has announced that it intends to cease the Indigenous Legal Assistance Programme (ILAP), which is the stand-alone funding program for Aboriginal and Torres Strait Islander Legal Services (ATSILS) and instead, include ATSILS funding and administration under the new National Mechanism.

^[11] See, for example, Attorney-General of Australia, ‘Budget Increases Provides Funding Certainty for Legal Assistance Services’ (Media Release, 2 April 2019).

^[12] Productivity Commission of Australia, above note 1.

^[13] Law Council of Australia, Justice Project (2018) rec 2.1.

^[14] For example, see Productivity Commission of Australia, above note 1, Vol. 2, 709 and Vol. 1, rec 21.1; Law Council of Australia, Justice Project (2018) recs 2.12, 2.13; A Cameron, above note 5, 7–8.

^[15] See above note 9.