Durbach, Andrea --- "Aid in the public interest" [1998] ALRCRefJl 21; (1998) 73 Australian Law Reform Commission Reform Journal 16

• Reform Issue 73 Spring 1998

---

Reform Issue 73 Spring 1998

This article appeared on pages 16 – 20 of the original journal.

Aid in the Public Interest

The Public Interest Advocacy Centre (PIAC) is a non-profit legal and policy centre, based in Sydney. At a recent conference in London, PIAC Director Andrea Durbach* suggested the structure of PIAC offered a model of how a mix of government and private funding of the practice of public interest law can extend the value of the legal aid dollar.

And she argued this mix contributed towards moving us “a little closer to the ideal of equal justice for all”.

The extent to which the state intervenes to ensure the rights of the relatively powerless are adequately represented, speaks of its adherence to democratic principles. With the emergence of public interest groups - which have sought to redress political, economic and cultural harm, enforce public duties and protect hard-won civil and political rights - the traditional reserve of rights has expanded to accommodate demands for social and economic equality. In response, the democratic state has had to shift to afford protection to ‘new social rights’.

The actual enjoyment of traditional as well as new social rights is, however, diminished in the absence of mechanisms within the framework of the judicial system that facilitate their effective protection. “Effective access to justice can thus be seen as the most basic requirement - the most basic ‘human right’ - of a system that purports to guarantee legal rights.”¹

As litigation becomes more layered and elaborate, requiring extensive legal research and argument often beyond the capacity of the ordinary litigant in person, the effective exercise or articulation of rights frequently demands legal representation. The provision of legal aid by the state is the recognition that “the indigent person lacking the means to provide his own suit of armour, is given one with which he can, perhaps, grapple and cope with the legal system which ... is complicated and is in many respects, menacing”.²

How the state construes legal aid - as a ‘juridical right’ whereby it guarantees individuals the right of access to the courts or as a ‘welfare right’, which encompasses the amelioration of a particular social situation or complex of conditions, addressing broad social concerns rather than individual grievances³ - will determine the program the state implements to protect the provision of aid.

Additionally, the reality of a shrinking legal aid dollar and the consequent appeal of allocating finite legal aid resources to cases or initiatives that have the potential to derive maximum impact or benefit, will significantly shape the approach and program adopted.

It is primarily the recognition of this latter consideration, coupled with an acknowledgement of the need for the law to address broad systemic issues, which informed the establishment of, and continues to shape, the Public Interest Advocacy Centre (PIAC).

PIAC: a model in progress

“As the funds available to legal aid are strictly limited, the cases which the (Legal Aid) Commission can fund tend to be concerned with individual, rather than community interests. Larger questions of public policy, if fought, arise incidentally and haphazardly. This is the principal justification of a separate and distinct body to run public interest litigation.”
- The Hon Justice Michael Kirby⁴

The Public Interest Advocacy Centre is an independent and non-profit legal and policy centre located in Sydney. It was the first, and remains the only, broadly based public interest legal centre in Australia. Although located in New South Wales, the matters PIAC undertakes are often of national interest or importance or have consequences which travel beyond state boundaries.

PIAC was established as an initiative of the Law Foundation of NSW. Research undertaken by the Foundation some 15 years ago gave rise to a proposal that a public interest advocacy body be established to address a concern that the legal system, including the legal aid system, was geared heavily towards pursuing the interests of individuals defending, for example, criminal prosecutions or claiming damages arising from personal injury.

It was proposed the new public interest advocacy body would undertake policy-orientated and test case litigation, which transcended the interests of individual litigants and promoted those of unrepresented and underrepresented sectors of the community, such as consumers, children, racial minorities, women and environmentalists. Where such community sectors had organisations to promote their interests, these were usually bereft of legal resources and the few community legal centres in operation at the time often lacked the capacity and expertise to conduct large scale and complex litigation. The proposal received an enthusiastic public response and PIAC opened its doors in July 1982.

The survival of public interest law practice turns on the existence of finding and securing financial support. PIAC’s core funding is derived from a substantial grant from the Solicitors Trust Account Fund and an annual grant from the Common-wealth/State Community Legal Services funding program. Both core grants are administered by the NSW Legal Aid Commission.

In addition, the Commission continues to provide support through special consideration of applications for legal aid in public interest cases. Thirty-five per cent of PIAC’s income is self-generated through consultancies, policy work funded by government departments or agencies and the Law Foundation, training and seminars, publications, membership fees payable to the Public Interest Law Clearing House (a major PIAC pro bono program) and fund-raising initiatives. The projected PIAC budget for 1998/99 is approximately $1 million.

A public interest charter

The practice of public interest advocacy envisaged by the proponents of PIAC encompassed strategies and activities which were not only confined to public interest litigation. Recognising the limitations of advocacy, which is solely reliant on legal intervention, the model promoted an inclusive approach that incorporates litigation, policy analysis and law reform, lobbying, campaign work, community education and advocacy training.

PIAC’s work is innovative, initiating opportunities for strategic intervention, and reactive to political, economic and social developments and their (potential) consequent impact on communities. With limited resources unable to accommodate ever-increasing demands for its services, PIAC is required to be selective about its areas of work.

How PIAC determines what it takes on and retains as case and policy projects primarily depends on the degree to which the work reflects the Centre’s strategic plan and constitutes a contemporary and important matter of public interest.

Additionally, the case or project should:

• have the capacity to adversely affect the general community or a group within it, particularly those confronting disadvantage because of race, gender, ethnic background or economic status;

• involve an issue of rights or regulation;

• offer the prospect of significant short to medium-term impact through redress or reform; and

• present opportunities for utilising an integrated approach via litigation, policy interventions and communication strategies.

The resource implications of working with a broad public interest charter require on-going evaluation of strategies and outcomes: Must litigation always present a strong prospect of success before it is assumed by the Centre? Is precedent a necessary objective? Would maximum exposure and debate of the issue be achieved in ways less protracted and costly than legal proceedings? Would lobbying activity ensure maximum benefit?

In pursuit of its charter of promoting the public interest and enhancing the quality of public policy-making, PIAC’s work has tended to focus on broad themes and target areas such as access to the legal system, consumer protection, access to information and promotion of human rights. More recently, PIAC’s litigation and policy work has concentrated on community services and public health, reconciliation between Indigenous and non-Indigenous Australians, public participation in government decision making, impact of micro-economic reform and public and private sector accountability.

Increasingly, as matters of public or constitutional interest emerge in litigation between private individuals and as courts are being asked to analyse and decide legal questions in the context of complex social, political and economic issues, amicus curiae interventions allow courts to consider important public interest perspectives in litigation, which have the capacity to travel beyond the interests of the parties in dispute. PIAC, as amicus, has sought both to broaden the rules of standing and provide assistance to courts on legal and policy questions valuable to the appropriate determination of a dispute.

Pro bono

With the comparatively modest funds available for the range and volume of work undertaken, community legal centres (CLCs) have demonstrated great ability to generate millions of dollars of pro bono work nationally each year. They engage barristers and advocates who take on cases without charge. CLCs also provide the infrastructure and supervision for volunteer private lawyers and law students who service advice and casework rosters. Other staff may include volunteer administrative staff, librarians, accountants and social workers.

In 1992, PIAC established the Public Interest Law Clearing House, a major pro bono project developed as a joint venture with the NSW Law Society and Sydney-based private law firms. The Clearing House is primarily an assessment and referral agency or ‘broker’ between its members and community organisations (particularly non-profit organisations) and individuals who require pro bono legal assistance on matters of public interest.

Through its work, the Clearing House seeks to match the diverse skills and resources of private law firms with a broad range of public interest matters. It integrates pro bono work with legal practice, expands the participation of private practitioners in the law reform process - whether by way of litigation or policy work - and encourages co-operation between private practitioners and public interest lawyers. One of the eligibility criteria for pro bono assistance under the Clearing House scheme, is that the applicant is “unable or ... ineligible to obtain Legal Aid and of insufficient means to afford requisite legal services at the applicable professional charging rates”. The Clearing House scheme has been designed to supplement, and not substitute, legal aid. It is essentially a mechanism for advancing the professional obligations of practitioners, rather than a cue for the abrogation of the duty of the state to protect the most basic human right.

Extending the legal aid dollar

It is a unique and recognised feature of Australian community legal centres that they can generate legal services far in excess of their legal aid funding and annual grants from the federal or state governments. Indeed, in a report to the then Justice Minister, Senator Michael Tate, on the role of community legal centres, the National Legal Aid Advisory Committee wrote:

“A frequently cited advantage of community legal centres (CLCs) is that they can deliver services for a lower unit cost. An evaluation of CLCs prepared within the (Commonwealth) Office of Legal Aid and Family Services, following publication of a study of four centres, draws this conclusion. This lower cost is the result of several factors, including in many cases donated premises and other equipment, substantial input by volunteer labour and the fact that employed workers work for lower wages or put in unpaid overtime.... (T)he overhead costs of the time spent in obtaining funds or grants and in supporting and training volunteers must be allowed for in any evaluation of the cost effectiveness of CLCs.”⁵

The provision of funding for public interest litigation (PIL) is an important legal aid strategy, offering widespread benefits such as:

• the development and clarification of the law with resultant increased equity, access to the law and public confidence in its administration;

• PIL can achieve outcomes which affect a wide circle of people experiencing common difficulties with reduced cost implications for legal aid commissions and the justice system as a whole;

• improved regulatory structures (through legislation, codes of practice, complaints mechanisms, industry ombudsman schemes) and changes in policy and practice by government and private corporations that have reduced likelihood of disputes and need for litigation can be attributed in large part to successful PIL;

• private enforcement of public duties and actions in respect of unfair practices or defective and harmful products provide incentives to produce quality products, clean environments and safe, non-discriminatory work practices.

• PIL can secure public participation in key decision making processes and in judicial law-making. Where those potentially affected by decisions or laws have an opportunity to shape their content and form, the potential exists for greater adherence to the outcome.

The provision of legal aid to clients of community legal centres, such as PIAC, does not simply ensure that state assistance through aid secures “for the poorer segment of society the legal services that the richer segment can secure for itself”.⁶ The comprehensive nature of a public interest law practice extends the value of the legal aid dollar beyond the resolution of individual disputes to the pursuit of innovative legal proceedings, which minimise cost and achieve widespread impact, frequently for disadvantaged or marginalised communities. In addition, the results of this litigation often precipitate modification of bureaucratic conduct, ameliorate social conditions and trigger shifts in public policy.

The story of community legal centres in Australia is a tribute to the effective and efficient utilisation of legal aid and other public funds to serve the interests of disadvantaged and marginalised communities and inform public policy to realise greater social justice. CLCs remind government and the courts of their responsibilities and their commitments to transparency and accountability. They provide some guarantee against the slippage of important public interests and rights from the political agenda. In short, “by helping to open the doors to our legal system, they have moved us a little closer to the ideal of equal justice for all”.⁷

* Andrea Durbach is the Director of the Public Interest Advocacy Centre (PIAC) in Sydney.

This article is an edited version of a paper presented to a conference in London, conducted by the Legal Action Group and Justice. The conference, entitled ‘Legal Aid - Making it Work’ was held on July 3, 1998.

Endnotes

1. Cappelletti, M. quoted in Gomez, M., In the Public Interest: Essays on Public Interest Litigation and Participatory Justice, Legal Aid Centre, University of Columbia, 1993, p. 14.

2. Zander M., ‘Legal Aid in a Democratic Society’ in Legal Aid in South Africa, University of Natal, 1976, p. 15.

3. Cappelletti, M. & Gordley, J., ‘Legal Aid: Modern Themes and Variations’ (1972) 24 Stanford Law Review 347 at pp. 391 and 406–408.

4. Quoted in Waters, P., Five years in the Ring — an account of the first five years of PIAC 1982–1987 p. 3.

5. The National Legal Aid Advisory Committee, The Role of Community Legal Centres. A report to the Hon Senator Michael Tate, Minister for Justice, 1992.

6. Cappelletti M. & Gordley J., p. 389.

7. Justice Thurgood Marshall quoted in the Foreword, Public Interest Law: Five Years Later. A Report of the Ford Foundation and ABA Special Committee on Public Interest Practice, 1976.