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Estimates: Community Legal Centres Program

Estimates & Committees
Penny Wright 29 May 2014

Penny Wright asks questions about the Community Legal Centres Program in Legal and Constitutional Affairs Estimates.

Senator WRIGHT: I might move away from this. I might come back to it. I am going to ask now about the Community Legal Services Program. I will start off with the restriction on advocacy that is apparently being included in Commonwealth funding arrangements for community legal centres. This month, community legal centres were advised that they will no longer be able to do advocacy or law reform work with Commonwealth funding. First of all, I am interested to know how this restriction will be effected.

Senator Brandis: You say restriction, but in the way in which you have put your question you actually demonstrate my point that it is not a restriction at all. There are a range of tasks, a range of kinds of work, in legal services, or in the legal sphere, broadly understood, that community legal centres or access-to-justice providers could potentially do. The Commonwealth has decided to direct its funding to some of those activities in particular—that is, front-line services for people in need—

Senator WRIGHT: All right—

Senator Brandis: Please may I finish my answer? I have not finished.

Senator WRIGHT: Please do. I think we are playing semantics in terms of whether it is a restriction or not.

Senator Brandis: No, we are not playing semantics, and the fact that you think it is a semantic difference, I think, really reveals how you are missing the point.

Senator WRIGHT: It is the definition of 'restriction' that is semantic.

Senator Brandis: The Commonwealth funds some community groups to do certain things and it does not fund community groups to do other things. What it funds community groups to do reflects its priorities, in a budget-constrained environment, as to what is most important. What I have decided to do in this area of policy, where I am sure we would all agree there is not as much money as we would like to see to go around, is to spend all the money on the most important work—that is, acting for clients, for needy people in difficult circumstances, providing front-line services—rather than to spend that finite pot of money doing other things.

Senator WRIGHT: I come back to the question then. Whether we call it a restriction or not, it is a direction as to what work can be done and it is now saying that work that previously could be done with Commonwealth funding cannot be done.

Senator Brandis: So that it can be all spent on the people who need it most.

Senator WRIGHT: I call that a restriction; you may not—that is fine, but how will it be effected? My question is: will the Community Legal Services Program guidelines be varied to that effect? How will it be effected?

Senator Brandis: At the moment, as you are probably aware, because I acknowledge that you take a great interest in this area, Senator Wright—and your objectives are probably the same as mine, but I think I am just a bit more realistic about need—

Senator WRIGHT: How will it be effected?

Senator Brandis: We are at the moment waiting to receive the final Productivity Commission report into access to justice services. I think that you would understand that, if we are to develop the right policies, they should be as well informed as possible, and they will be informed in the end having regard, among other things, to the Productivity Commission report.

Senator WRIGHT: I am actually very pleased that you came to that, because that is a nice segue into the next question I had, which was about the interim Productivity Commission report that we have received. It is interesting because I would like to come back to the rationale, but I would go to the Productivity Commission report itself which strongly concluded in its draft report on access to justice arrangements in Australia that the legal assistance sector, which includes community legal centres of course as you know, is uniquely placed to conduct advocacy, and advocacy is a useful and efficient—that was the word they used—use of its funding. I was heartened to read that, because that is certainly a view that many community legal centres and legal stakeholders have put to me, and I will ask you more about that—

Senator Brandis: I know a lot of people agree with you, Senator.

Senator WRIGHT: What is interesting is that the productivity commission draft report actually acknowledged that very clearly, and also I saw reported in The Australian today—and it may or may not be accurate, but I would be interested to know—that the Attorney General's Department apparently told the ABC:

The findings of the Productivity Commission's inquiry into access to justice arrangements and the recent Review of the National Partnerships Agreement will inform future decisions concerning legal aid services …

You have that in the report, you have that acknowledgement, so what is the rationale? How does that square with what you have just said?

Senator Brandis: I think I, in fact, may have signed off on those words, Senator Wright.

Senator WRIGHT: You may have.

Senator Brandis: The fact is that advocacy services may be a useful thing. I do not dispute that. They may be a desirable thing. But I come back to the point I am at pains to make to you that, where resources are finite, we need to spend them on the people who need them most, and it is my view that spending those resources on flesh and blood men and women and children, actual clients in needy circumstances, should be the first call on the resources in the access to justice budget. If all of the needy people who need those services were to be catered for there would be no money left. In fact there is not even enough money in the system at the moment to cater for their needs. Advocacy services, a good thing though they may be, are in my view a secondary matter.

Senator WRIGHT: I hear that that is your belief, and I know you genuinely agree.

Senator Brandis: I have said that time and time again.

Senator WRIGHT: I know that we both would be wanting the same outcome, which is more access to justice for Australians. I have no doubt about that. What I am interested in is that you clearly said then that that was your view. You have also said that you will be guided by the Productivity Commission's review. You have employed an expert body to look into it, and they are renowned.

Senator Brandis: I think 'informed' rather than 'guided'. Let's not have a semantic difference.

Senator WRIGHT: Well, let's go back and look at that, because I think that is quite important.

CHAIR: Well, get to the question, would you?

Senator WRIGHT: I will, and the question is following on from the answer that I have already received, and I think I am entitled to do that because I am trying to make sense of it. You have said that you will be guided or informed. Basically you have asked an expert body, expert in efficiency indeed,—that is certainly what they would say about themselves—to give you advice on access to justice arrangements in Australia. Unless there is some reason to think that their final report would be different to their interim report, they have said that the legal assistance sector is uniquely placed to conduct advocacy and advocacy is a useful and efficient use of its funding. Will you be guided by that sentiment or not?

Senator Brandis: Two things, Senator. First of all, I think we should wait for the final report. Secondly, I share that sentiment, by the way, I am not disputing that sentiment, but it does not follow from the proposition you have put to me that, nevertheless, in the allocation of resources the first call on resources should be needy people. If there were more money in the system, it may be that other things that access to justice providers can usefully do would also be able to be funded, but given the finite resources available—do not forget that our public finances today are in the worst shape they have ever been in in Australian history by a factor of many times—

Senator WRIGHT: With respect, I am just watching the clock and I am going to come back to you. What if there were evidence that, in fact, by allowing advocacy to rectify systemic injustice you could actually assure that you would assist more of those very flesh and blood, needy Australians than by having services where you have a lawyer go to court, attend to them in court, spend a couple of hours dealing with their case and coming back?
What about the change of legislation through advocacy? You could actually change a situation where you would not have those very flesh-and-blood Australians going to court. Would that be something that you would take on board or would that be something that would convince you of the efficacy of meeting the needs and addressing injustice in that way?

Senator Brandis: My view is that where people are missing out on legal representation and legal advice, then that is a bad thing. If they miss out because there are not enough resources in the system, then an injustice is done. Whereas, the kind of advocacy work or law reform work of which you are speaking can still be done by those very access to justice providers in a voluntary way, rather than funded through government, and often they do. The many witnesses before this very committee over the years, who have come and commented on various pieces of legislation, very often do so in a voluntary capacity. It is not an either/or question. If the unrepresented litigate misses out on their day in court, they will never get that day in court back again. But if money is not provided for advocacy services, it does not mean that the legal aid provider cannot be an advocate anyway by volunteering their services in writing papers, appearing before parliamentary committee or all the other range of activity comprehended by that term.

Senator WRIGHT: What if effective law reform meant that they did not need their day in court because they were not going to be caught up in court without legal representation?

Senator Brandis: I understand the argument. It is a bit of an amorphous argument though, if I may say so, because you never know for sure, do you?

Senator WRIGHT: There are clear case studies that have been put to the Productivity Commission and, presumably, that is the basis on which they have formed their view about law reform that has then meant that people do not need to have legal representation in court because they are not ending up in court. There is evidence there if you want to see it. I will—

Senator Brandis: There are opinions there. I do not think we should fall for the delusion that all people who purport to speak as experts necessarily approach this issue value free. They are entitled to their values and opinions, of course.

Senator WRIGHT: What are the values of the Productivity Commission then? I would have thought efficiency and effectiveness would be—

Senator Brandis: No, you referred to evidence before the Productivity Commission.

Senator WRIGHT: That is what I am saying. I am presuming that they—

Senator Brandis: You referred your submissions before the Productivity Commission.

Senator WRIGHT: I am presuming that they looked at the evidence. Their interim report is based on the evidence that they have seen, so I am interested in what values they are bringing—

Senator Brandis: No. I think we are slightly at cross purposes. I was referring to your earlier question about the people who made submissions to the Productivity Commission.

Senator WRIGHT: Yes. Well, would you agree that the Productivity Commission is probably basing their recommendations on the basis of the evidence and submissions that they have received?

Senator Brandis: The Productivity Commission, as I say, is yet to deliver its final report. I am sorry to be repeating myself, but the sentence that you have quoted from its interim report is not inconsistent with anything I have said. It is a question of priorities where there are finite resources.

Senator WRIGHT: You raised the issue of evidence before parliamentary inquiries. We are all aware here that there is a plethora of inquiries into law reform in Australia, both in states and territories and also the Commonwealth—

Senator Brandis: Maybe too many.

Senator WRIGHT: Does the 'no advocacy' clause include submissions to government inquiries?

Senator Brandis: When we say the 'no advocacy' clause: 'no spending of Commonwealth money on advocacy' clause—that is what it is

Senator WRIGHT: All right, does that include—

Senator Brandis: They are as free as anybody else in the community to be advocates.

Senator WRIGHT: Does that include work during work time or using resources that have been purchased with Commonwealth money on making submissions to government inquiries, such as submissions to inquiries held by this committee? I think they will need to know the detail.

Senator Brandis: In general, the answer to your question is 'yes'. There may be definitional issues at the margin. For example, you say, 'using Commonwealth provided resources'. If a particular legal service decides to spend some of their voluntary time preparing a submission to a parliamentary inquiry and wants to use the photocopier to print off copies of their submission, I do not think anybody is going to complain about that. But I think it is pretty clear what the government's position is, that the money that is used to fund access to justice should be used on access to justice—not on policies about access to justice.

Senator WRIGHT: Have you consulted with federal or state based policy makers, other governments who may have government inquiries and rely on the value that is provided by people at the coalface, often, in relation to the reform about the potential impacts of this?

Senator Brandis: I consult with people all the time and I visit community legal centres and legal aid providers very frequently.

Senator WRIGHT: Have you consulted specifically with your federal or state counterparts, both policymakers and people involved in political decision making, about the possible impacts of this restriction on the work that can be carried out with Commonwealth money in relation to providing information or submissions to law reform processes and inquiries?

Senator Brandis: There, as I think you should be aware, a framework whereby the Commonwealth and the state attorneys consult each other on a regular basis. It used to be called the Standing Council on Law and Justice, before that it was called the Standing Committee of Attorneys-General, and in future it is going to be called the Standing Committee on Law, Justice and Community Safety. That is the framework through which there is regular consultation between the law officers.

Senator WRIGHT: Did you raise this issue with them?

Senator Brandis: I have discussed this with various stakeholders, including other law officers, very frequently.

Senator WRIGHT: Have any of them expressed concern about the potential implications about the range of views they may be able to receive in relation to law reform inquiries?

Senator Brandis: There is no limitation on the range of views that they may receive, just as there is no restriction on the range of views that may be expressed. The fact is that people in the legal profession can and do and should give of their time voluntarily to provide access to justice, both in casework and in making submissions.

Senator WRIGHT: You say you visited community legal centres. You would be aware that many of the community legal centre lawyers work extremely long hours just in terms of trying to meet the demand.

Senator Brandis: I have very high regard for them.

Senator WRIGHT: There is the suggestion that somehow they will be able to find additional time. They already often work extra time, so the proposal that if they are committed enough they will find extra time to put together a submission to a government inquiry is—

Senator Brandis: I am not suggesting they are not committed enough. In fact, the very observation that you make in your question makes my point. These people work under tremendous pressure, both time constraint and resource constraint, and I want to see as much of that time as possible focused on their clients.

Senator WRIGHT: So that they can do the extra work in their own voluntary time, when they already put into the community in every way?

Senator Brandis: They can. You say they are stretched, and they are. I know that because I visit these centres and I have friends who work in these centres. The fact that you say they are stretched makes the point that there are not enough resources in the system already to deal with the problems of their clients. That is where the money should be spent.

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