By linking federal funding to silence on law reform, the attorney-general is turning his back on community feedback. By Liz Curran.

Liz Curran
Attorney-general George Brandis set to silence CLCs

“Everyone is in favour of free speech,” Winston Churchill said. “Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.” 

The attorney-general, George Brandis, appears to agree. In 2012 he told Quadrant: “The measure of a society’s commitment to political freedom is the extent of its willingness to respect the right of every one of its citizens to express their views, no matter how offensive, unattractive or eccentric they may seem to others.”

Yet moves are afoot by the Attorney-General’s Department that would restrain hard-hit members of the community from having a voice through community service agencies. The government proposes to reframe the funding and service agreements to limit the freedom of agencies such as community legal centres to advocate for legal reform. 

As front-line services, particularly working for those without the means for expensive legal representation, community legal centres (CLCs) are the best placed to assess the efficacy of laws and their administration. CLCs see a broad cross-section of the Australian community, from people in difficulty with credit providers and energy services, to families in breakdown. Their clients are often people who are on the margins. This provides CLCs with a strong perspective on whether laws are having a harmful or unintended impact on human lives. Their feedback to policymakers plays a critical role in ensuring our legal system is responsive, efficient and effective. Such feedback is often provided through advocacy and law reform work. 

Some of the advice of CLCs can lead to reforming efficiencies that can prevent problems escalating, identify opportunities for efficiencies, and save the government money. The government’s ongoing Productivity Commission inquiry into Access to Justice Arrangements agrees. Its draft report states: “Legal assistance lawyers are uniquely placed to identify systemic issues, particularly those affecting disadvantaged Australians ... Strategic advocacy can benefit those people affected by a particular systemic issue, but, by clarifying the law, it can also benefit the community more broadly and improve access to justice.”

In a May 2013 ANU report, “Encouraging Good Practice: Measuring Effectiveness in the Legal Services Sector”, I illustrated how casework such as that provided by CLCs can inform law reform and policy. By identifying trends in their work, rather than responding to individual cases on a revolving door basis, the experience of CLCs can be vital in identifying areas of reform that can save expensive court time and duplication. 

One of the studies documented in the report was the well-known national campaign of “Do not knock” stickers. This was an idea emerging from the Consumer Action Law Centre to combat doorknockers who were targeting vulnerable community members and often acting fraudulently to sign them up to loans and contracts. The CALC’s advocacy has led to the stickers being enforced by the courts, and energy retailers in particular refraining from the practice. 

Another example was the Bulk Debt Negotiation Project, which identified a range of debts being pursued from individuals but which, for various reasons, were unenforceable. In many cases, hardship, disability, mental illness and other factors indicated the debts – with creditors such as major banks, insurance companies, credit providers, debt collectors and utility providers – ought not be pursued. Rather than negotiating on a case-by-case basis, this ongoing project bundled them together and has been estimated to have saved some 2500 debtors $15 million. It has led to changes in industry practice to avoid pursuing people in error. 

Governments of all levels and political persuasions, and their agencies, can easily lose sight of the on-the-ground experiences of members of the public. They can fail to appreciate the difficulties a person with a disability may face in accessing services, or of a person who left school aged 12 in understanding complex forms and procedures. They may not be aware of the refusal of a pizza shop to serve an Aboriginal, or the struggles of the farmer who has been the victim of dodgy credit arrangements, or the child who has been in state care. Bodies such as CLCs can keep governments informed of the unjust impacts of their legislation. Their influence and input into policy should be welcomed, rather than curtailed. Yet the federal government is determined to do just that, by linking the funding of already cash-strapped services to their public advocacy profile. 

The federal government has notified CLCs that its new funding agreements will include a requirement that CLCs will not engage in law reform advocacy using Commonwealth funds. This would be achieved by removing existing conditions in clause 5 that currently protect CLCs from measures “that could be used to stifle legitimate debate” and from having to “obtain advance approval of any public debate or advocacy activities”.

The attorney-general’s edict comes at a time when the impacts of proposed budget changes could harshly affect the CLCs’ typical client groups, who have little power and often little education and will now have even less voice. Often such people’s experiences only find expression through the advocacy of community agencies such as CLCs.

It is ironic that many of the law reform bodies that CLCs participate in are initiated by the federal government expressly to provide them with advice. Why would the government want to reverse or delete a clause allowing “legitimate debate”? This proposal makes Brandis’s recent championing of free speech seem contradictory. Why should it not apply to community agencies that advocate on behalf of their clients? Why does a democratically elected government fear hearing from agencies reporting back on community experiences on the ground?

This article was first published in the print edition of The Saturday Paper on Jun 14, 2014 as "Blind justice".

A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.

Liz Curran is a senior lecturer in law at Australian National University.