Valuing the Work of Community Lawyers’ to Resolve Systemic Problems – The Productivity Commission Report on Access to Justice Arrangements in Australia
In the past decade or more in Australia, creeping managerialism and efforts to reduce funding of services under the guise of ‘fiscal belt tightening’ and efficiency have threatened and sometimes jeopardised the effectiveness of the legal system in being able to respond to community need. The Australian Productivity Commission’s Final Report on ‘Access to Justice Frameworks’ was released on 3 December 2014. It acknowledges the value of community legal centres and legal aid as ‘highly committed’ and supports the systemic advocacy of these providers in ensuring and improving a fairer justice system in Australia.
Community lawyers (whose work is mainly with the most vulnerable and disadvantaged clients) are uniquely placed to see the ‘revolving door’ of problems in the community. Exposure to client experience and case work gives them a vantage point from which to identify how things might be adjusted to enhance human rights and improve confidence in the law. Such a perspective can see lawyers finding solutions to also circumvent unnecessary cost to the judicial and administration systems that come by repeat cases with the same issues coming before the courts. They can see where early intervention or prevention of the problems arising in the first place might come from improved community legal education or law reform and identify barriers to access to justice.
Lawyers, as officers of the court in Australia, also have obligations to uphold the rule of law, to ensure confidence in the legal system and its administration. Laws that are poorly drafted, negatively impact on or alienate certain sections of the community because of their disadvantage reduce community confidence in the legal system. It is therefore incumbent on lawyers as part of this primary duty, to work to protect the integrity of the legal system in such circumstances.
Lawyers in community legal can also explain the context, complexities and barriers their clients encounter. Part of the core definition of this service includes legal education in and with the community, advocacy and law reform. This multi-pronged service model averts the fragmented nature of legal work that often exists in the private profession. Many community legal centres in Australia are also increasingly co-locating or creating ‘one stop shops’ or outreach centre, integrating their services alongside non-legal service providers where the most vulnerable or hard to reach clients are likely to be. In addition, community lawyers can provide a consistent voice for those in the community who by reason of a lack of power, media control and social exclusion can be invisible. This befits a participatory democracy.
In the past decade, I have argued for the use of strategic casework with multiple strategies involving education, policy work, media awareness raising, law reform and participation in expert and other advisories, as critical work for community lawyers. This is an efficient and effective way of ensuring a good use of finite resources and a more efficient justice system. In a climate of ever reducing funding, greater targeting to those who need help the most and with increasing demand, I have argued that resources might be strategically utilised so as to work on public interest or other cases where the greatest need and impact can be derived for the greatest number. This strategic work does not however preclude or replace the importance of case work in individual settings such as care and protection of children, court and tribunal representation and advocacy in family law, criminal law and family violence, but ought to be a compliment to it.
The Productivity Commission’s report makes many recommendations. This includes stable and sustainable funding, more closely connected to the realities of service delivery than is currently the case. It observes that Commonwealth funding for community legal centres has been largely ad hoc and historical. The Commission notes that record keeping and data collection imposed by government is unduly burdensome on services and not that useful and that there has been a disconnect between legal need and government funding and calls for funding to reflect the cost of service provision and indicators of need. To this end, the Commission stresses as a priority the need for evidence based research that is outcome based and consistently undertaken with a clearing-house to facilitate information. The Commission clearly endorses and acknowledges the important place of legal aid and community legal centres in systemic work and that the work is difficult and challenging but finds a home in the commitment and conviction of the legal assistance sector. It affirms the need for integrated, and holistic service delivery, the need for effective community legal education and the importance of the legal assistance sector working closely with the non-legal services to better reach and assist people in accessing legal help. It stresses that the sector is under-resourced, suggesting an injection of $200 million. Critically, the Productivity Commission underlines the importance of systemic law reform and policy work that can be critical in ensuring a just, accessible and smoother legal system.
It is hoped that an Australian Government, on the record as being sceptical and unwilling to fund systemic advocacy, will pay heed to this important report which points strongly to the need for government to value and support the critical work that the legal assistance sector given that legal problems, if unresolved, can have a big impact on lives.