The release of a draft National Compact between the 'Third Sector' and Federal Government has raised hopes for a new era in the relationship between Government and the not-for-profit sector. Through PilchConnect, our specialist legal service for not-for-profit community organisations, PILCH has played a key role in shaping the draft Compact by participating in an expert National Compact Joint Taskforce.

The 'Third Sector', a term somewhat new to the Australian vernacular, is intended to cover a diverse range of not-for-profit organisations ranging from unions and churches, to sporting associations, environment and arts organisations, self-help groups and community services organisations. The Government has deliberately cast the net wide to capture the diversity of the sector and to promote national and holistic responses to common issues. While this is to be encouraged, marshalling the often diverse and divergent views of the sector will not be without its challenges as the Compact is refined and implemented.

The draft Compact is a non-binding agreement that will establish a set of core principles aimed at underpinning the way that the Government and sector relate to each other, strengthening sector viability and delivering better policy and programs. Its lofty (but laudable) vision is to contribute 'to a more inclusive Australian community with better quality of life for all'.

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The often tortured path towards national harmonisation of laws regarding the conduct and regulation of the legal profession has taken a new turn, with the issue being elevated earlier this year from the agenda of the Standing Committee of Attorneys-General to that of the Council of Australian Governments. The Rudd Government has set a May 2010 deadline for the reforms and established a specialist taskforce to draft legislation to form a single national legal profession.

In response, the Victorian Government has convened the Legal Profession Reform Consultative Group, consisting of representatives from peak bodies including the Law Institute of Victoria, the Legal Services Board, the Legal Practitioners Liability Committee and the Federation of Community Legal Centres. PILCH is represented on the Group, which will work alongside the national taskforce, headed by former federal Attorney-General Professor Michael Lavarch. PILCH will advocate strongly for the reform agenda to be seen as an opportunity to reduce barriers for practitioners to engage in pro bono work, and to encourage more lawyers into the community legal sector.

South Australia’s new pro bono legal assistance centre, JusticeNet SA, was launched by Federal Court Judge, the Honourable Justice Mansfield, on 2 July 2024 at the University of Adelaide’s Moot Court.

Justice Mansfield said, "We have not yet achieved an ideal system of access to justice in this country, despite the often heroic efforts of the legal profession." He reminded the audience of the "many instances of selfless contribution by private lawyers to provide disadvantaged Australians with pro bono legal representation. The private profession was being called on even more urgently since the winding back of legal aid for most civil matters over the last few decades."

“JusticeNet will help close the gaps in current legal service delivery in South Australia,” says JusticeNet’s Executive Director, Tim Graham. Like its interstate counterparts, JusticeNet will operate as a ‘clearing-house’ that matches clients with member lawyers willing to act pro bono. The scheme will provide a coordinated and targeted service rather than the current ad hoc approach.

Graham noted that “There is strong support for JusticeNet in the profession. JusticeNet already has approximately 30 individual members, and looks forward to signing on its first law firms.”

The launch event was used as the opportunity for a colloquium of the PILCHs from QLD, NSW and Victoria to share their experience with SA and discuss how to enhance co-operation. A workshop the following day, attended by the community legal sector and the private profession, and involving Mat Tinkler, Susannah Sage-Jacobson and Melanie Dye from PILCH vic, looked at how JusticeNet might best operate.

The establishment of JusticeNet has been made possible by a grant from the Law Foundation of South Australia, and the provision of accommodation from the University of Adelaide.

^{Firms and members of the legal profession who would like to become members of JusticeNet can do so by contacting Tim Graham on (08) 8303 5005 or tim.graham@justicenet.org.au}

PILCH and VBLAS have long assisted applicants who have had their residency visas cancelled pursuant to the character grounds in section 501 of the Migration Act (the Act). On 15 June 2024 the Minister for Immigration and Citizenship, Chris Evans, brought into effect “Direction No 41 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958” (Direction 41).

Direction 41, which supersedes Direction 21, affords greater discretion to decision-makers when deciding on whether to cancel or refuse to grant a person’s visa. The new direction now includes the following primary considerations:

• whether the person began living in Australia as a minor
• the length of time the person has been living lawfully in Australia prior to engaging in the criminal activity, and
• Australia's international law obligations including but not limited to:
• the best interests of a child as described in the Convention on the Rights of a Child, and
• the non-refoulement obligations contained in the Convention and Protocol Relating to the Status of Refugees, the Internationals Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Other new factors which must be taken into consideration, if relevant, include the person's age, their health and level of education, and what links that person has to the country to which they would be removed.

PILCH and VBLAS welcome the introduction of Direction 41 as for the first time Australia’s Treaty Obligations and the age of the person when they arrived in Australia have rightly become primary considerations. PILCH hopes that this Direction will be used to avoid outcomes that are as unjust as those in Nystrom and Jovicic; in which two long term Australian residents were deported to their countries of birth.

The meeting of like minds - National PILCH Meeting
On 2 July this year, representatives from the National Pro Bono Clearing Houses met in Adelaide to coincide with the launch of JusticeNet SA.

The meeting, kindly hosted by Fisher Jeffries, allowed interstate colleagues the chance to share and learn from individual experiences. In particular, the meeting provided the new Executive Director of JusticeNet SA, Tim Graham, the opportunity to understand the operational aspects of running a pro bono referral scheme.

Executive Directors of their respective organisations, Mat Tinkler (Vic), Amy Kilpatrick (NSW) and Tony Woodyatt (Qld) also used the meeting to discuss ways to enhance co-operation. Following the success of discussions, it was resolved that the executive team will hold a bi-monthly teleconference. 

John Corker, from the National Pro Bono Resource Centre, joined the meeting to discuss the promotion and encouragement of pro bono. The group congratulated the Centre's initiative in introducing a professional indemnity insurance scheme to encourage lawyers that work inhouse and in government to undertake pro bono legal work.

HPLC lawyers trade pens for soccer boots at the HPLC Street Soccer Challenge
To mark National Homeless Persons' Week (3-7 August), in conjunction with the Big Issue’s Street Soccer program, the HPLC challenged its volunteer lawyers to a round robin soccer tournament. As well as being a fundraiser for the HPLC and Street Soccer, the tournament allowed HPLC volunteers and members of the Victorian Bar the opportunity to step outside the law and team up with street soccer players to start ‘kicking goals’ and raising awareness of homelessness in the community.

PILCH congratulates the Clayton Utz team who rose to the challenge and took home the prize for the day. However, as HPLC CAG member and Street Soccer devotee Dazzler said, "Winning is great, but having fun and meeting new people is even better. At the end of the day we are all winners".

Increased demand for assistance in family law matters
In February of last year Victoria Legal Aid announced cuts to its funding of family law matters. As a result, LIVLAS has observed a steep rise in the number of people seeking pro bono assistance for family law matters, particularly in relation to contravention of court orders. Examples have included refusal to disclose a child’s medical information to the other parent of the child, denial of court-ordered child access and a parent moving suburb and changing a child’s school without notifying the other parent.  Individuals in these stressful situations are often not in a good position to self-represent. With no state funding available to ensure compliance with court orders, the burden is being placed on limited pro bono services. LIVLAS is in need of more family law practitioners to meet the growing demand for pro bono services. Please contact LIVLAS on 8636 4425 or livlas@pilch.org.au for further information.

Workplace rights - a new era
PILCH and LIVLAS are grateful to Clayton Utz who on 22 July 2009, hosted a LIVLAS seminar by lawyer Jack O’Brien on the new Fair Work Act for pro bono and community lawyers.

1 July 2024 saw the commencement (in part) of the much anticipated Fair Work Act.  Mr O’Brien advised that the new Act has significantly changed the workplace rights environment for employers and employees alike.

Attendees were informed that whilst the new regime expands unfair dismissal rights for employees (and even prospective employees) of businesses, it appears that it will be increasingly difficult for lawyers to get a foot in the door at the new Fair Work Australia. LIVLAS anticipates that this will significantly limit the assistance that pro bono lawyers can provide in these matters.

Further, Mr O’Brien outlined that not-for-profit organisations in Victoria and other employers will need to be aware of the new laws relating to redundancy. For example, before making an employee redundant employers must consider whether there is a similar position in any 'related entity' in addition to the organisation in the employment relationship with the employee. There are also additional protections for employees on the transfer of a business.

We are grateful to Clayton Utz for their support of the scheme and for assisting LIVLAS and community lawyers to navigate these new waters.

PilchConnect training
PilchConnect continues to draw upon the  broad expertise of its member law firms to provide legal training seminars for not-for-profit community organisations. In July, Clayton Utz hosted and presented a well-attended seminar on civil liability for employees and volunteers in community organisations. Freehills have also recently presented a well-timed seminar on the ins and outs of running an Annual General Meeting which was attended by over 60 people working or volunteering in the NFP sector. Feedback from both sessions confirms the value and importance of the pro bono legal assistance provided by member firms for small NFP community organisations.

PilchConnect continues to run outer-metropolitan and regional training for NFPs, including seminars on the roles and legal responsibilities of NFP board and committee members in Castlemaine (with VCOSS) and at North West Migrant Resource Centre in St Albans. The same training will run in Geelong in September - further details at PilchConnect NFP Training. 

Amendments broaden scope of Bushfire Appeal Fund, Third Sector magazine, 18 August 2009. PilchConnect and PILCH ED Mat Tinkler welcome changes to Federal tax law that widen the permitted use of the donations to the Victorian Bushfire Appeal Fund.
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Pro bono in the house, Law Institute Journal, August 2009. PILCH ED Mat Tinkler and Secondee Solicitor David Glasgow (Mallesons Stephen Jaques) discuss the restrictions that professional indemnity insurance requirements and practising certificates put on lawyers wanting to engage with pro bono work.  

Inspectors to blitz dodgy rooming houses, Whittlesea Leader, 15 July 2009. HPLC Manager/Principal Lawyer Caroline Adler comments on the Victorian Government's announcement of a new rooming house taskforce and the creation of minimum standards.
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Justice needs funding, The Law Institute Journal, July 2009. Secondee Solicitor Emily Webster (Corrs Chambers Westgarth) discusses why pro bono legal services are not a substitute for adequate legal aid funding.

Vendor profile, The Big Issue, July 2009. Profile on Big Issue vendor Warren, who has received assistance through the HPLC.

Productivity Commission must urge reduction offered tape for non-profits, Productivity Commision media release, 2009. For more details on the PilchConnect submission, see Advocacy and Law Reform section below.

Response to Victoria Law Reform Commision (VLRC) Consultation Paper on Surveillance in Public Places
People experiencing homelessness use public space in different ways. Those who sleep rough may have little choice about where they perform intimate activities such as sleeping, bathing, urinating/defecating. For others, public space provides a place to exist in a broad sense; to be safe and warm, to eat and drink, to be with friends and family, and to rest. For this group of people, public space can provide a welcome respite from the squalid or dangerous conditions at the bottom end of the Victorian accommodation market.

“On Camera, 24/7” is a submission made by the HPLC in response to the VLRC’s Consultation Paper on Surveillance in Public Places. The submission highlights that, for many people experiencing homelessness, being watched (by surveillance cameras / security personnel / police) is a fact of life.  It is an unfortunate paradox that the people who rely so much on public space for their basic existence are the same people who are watched, monitored, moved on and generally excluded from that space. 

The HPLC considers that addressing the way in which surveillance is used in public places provides a good opportunity to better protect the rights of people experiencing homelessness to privacy and to non-discrimination. The submission makes a number of key recommendations in this area, including that:

• any recommendations for reform or regulation of surveillance in public places should be guided by and seek to uphold the full range of human rights including the right to privacy, the right to non-discrimination and the right to freedom of movement
• surveillance principles be adopted to provide an overarching framework guiding regulation of public place surveillance, including a principle to the effect that public place surveillance should not be used to profile particular groups of people or to discriminate against people
• funding be provided for a detailed examination of the ways in which surveillance (a) deters crime in respect of people experiencing homelessness and (b) results in increased apprehension rates where acts of violence are caught on camera.

Download the submission 

Standing Committee Inquiry on Procedure into the effectiveness of Commonwealth House Standing Committees 
In August 2009, PILCH lodged a submission to the inquiry of the Standing Committee on Procedure into the effectiveness of Commonwealth House Standing Committees.

In its submission, PILCH outlined the need to improve Parliament’s engagement with human rights and how House Standing Committees could effectively assist Australia meet its human rights obligations. The submission also examined the imperatives for increasing efficiency and accountability of House Standing Committees.

PILCH broadly made two sets of recommendations:

• that there be established a Joint Parliamentary Committee on Human Rights which would lead parliamentary engagement with human rights issues; and
• that amendments to the Standing Orders be made to avoid duplication of effort and increase accountability, such as requiring committees to identify and consider previous reviews on similar topics and inclusion of mechanisms to track the government’s response to recommendations.

Thanks to Amelia Hanscombe, Maddocks lawyers, the Human Rights Law Resource Centre and Julan Wan for their contributions.

Download the submission

Insurance Council of Australia’s review of the General Insurance Code of Practice
In July 2009, PILCH and the Flemington Kensington Community Legal Centre made a joint submission to the Insurance Council of Australia’s review of the General Insurance Code of Practice. The submission makes recommendations for reform of the Code so as to better address third party disputes, and recommended that the Code be amended by:

• Expanding on those provisions which are applicable to, or enforceable by, third parties
• The itemisation of specific factors which would require an insurer to consider alternative repayment terms, and debt waiver in particular circumstances
• Improved training of advisors and collection agents to ensure adherence to the ACCC and ASIC ‘Debt Collection Guidelines: for Collectors and Creditors’
• Amendment of Code 3.12 so that an inability to pay, or a dispute as to liability or quantum, will be considered a failure to reach a repayment agreement and trigger the provision of information requirements
• Amendment of Code 3.12 so that an insurer must provide information about Victorian Legal Aid and community legal centres in the case of unresolved disputes.

Download the submission 

Response to the Interim Report to the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
On 3 August 2009, PILCH provided a response to the Interim Report to the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act). The response provides further commentary and recommendations to those which were provided in PILCH’s original submission to the review in May 2009.

In its response, PILCH clarifies and reinforces the human rights imperative and logic for the introduction of a climate change trigger, which was not addressed in the Interim Report. The PILCH response also describes how human rights considerations can assist and be utilised in making a climate change assessment under the Act.

The PILCH response also emphasises the importance of appropriate mechanisms to facilitate public participation in environmental management, by commenting upon aspects of the Interim Report which relate to that part of our original submission

Download the submission

Productivity Commission Study into the contribution of the not-for-profit (NFP) sector 
PilchConnect recently made a comprehensive submission to the Productivity Commission's Study into the contribution of the NFP sector. PilchConnect recommended urgent reform to the legal framework for the NFP sector, focussing on the undue level of red tape that continues to be a barrier to efficiency and innovation.

Download the submission

Victorian Department of Education and Early Childhood Development
Also on the topic of reducing regulatory burden for NFP's, PilchConnect responded to a request from the Victorian Department of Education and Early Childhood Development to make a submission to their Reducing Red Tape Project. Emily Webster, secondee from Corrs Chambers Westgarth, and Sue Woodward of PilchConnect worked on this submission.

Download the submission

PilchConnect has also been participating in a Regulatory Reform Reference Group (RRRG) about Victorian incorporated associations, organised by the Victorian State Government's Office for the Community Sector and Consumer Affairs Victoria. Lisa Mortimer, secondee from Allens Arthur Robinson has assisted PilchConnect with comprehensive background research and legal policy work for this project.

Character Visa Cancellation
PILCH approached Maddocks to provide pro bono assistance to Mr N. Mr N's transitional (permanent) visa was cancelled by the Minister for Immigration and Citizenship on character grounds, pursuant to section 501(2) of the Migration Act 1958, and he was facing deportation to Vietnam.  

Mr N was in all but visa status, an Australian. He has lived in Australia since he was 16 years of age (now 40 years of age). In 1985, Mr N and his mother travelled by boat to Malaysia where they lived in a displaced persons' camp for six months before obtaining refugee status in Australia. 

At appeal, the Administrative Appeals Tribunal (AAT) affirmed the visa cancellation on character grounds and upheld the decision to remove Mr N from Australia. Maddocks applied for review of the AAT decision to the Federal Court and the matter was remitted by consent after it was accepted that the AAT Member had erred in his application of the 501(2) cancellation power. 

After being granted parole from prison, Mr N was immediately transported to a detention centre. As submissions were being finalised for the second AAT hearing, the Full Court of the Federal Court handed down its decision in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 (Sales). 

In Scales, the Federal Court held that the Minister's power to cancel a visa on character grounds applied only to visas that had been 'granted' to a person. The Court found that a transitional (permanent) visa (as held by Mr N) is not 'granted' to a person, rather it is 'held' by virtue of transitional arrangements. Fortunately for Mr N, his circumstances fell within the scope of this decision and Mr N was released from detention and re-instated with his transitional permanent visa.  

The Migration Legislation Amendment Bill (No.1) 2008 was introduced to the Senate on 25 June 2024 and effectively overturned the decision made in Sales (with retrospective application). This meant that the transitional (permanent) visa held by Mr N was again deemed to be granted rather than held and his visa could, again, be subject to cancellation. 

One day after proclamation, the delegate for the Minister telephoned Maddocks to advise that they would issue another, Notice of Intention to Cancel, to Mr N's visa and have him deported to Vietnam. After extensive submissions and evidence to show that Mr N was of ‘good character’, the delegate for the Minster issued Mr N with a warning and decided not to cancel his visa. 

^{Many thanks to pro bono counsel and the following Maddocks lawyers for their work to obtain this fair and just outcome: Carmen McElwain, Umberto Torresi, Farzeen Alam, Penny Alexander (now at AAR), Nathan MacDonald (now an employee at PILCH), and Noosheen Mogadam.} 

Protection Visa
Holding Reidlich accepted a referral from PILCH to assist Mr H, an Iraqi refugee and now Australian citizen, to obtain pro bono legal advice regarding the protection visa of his mother, Ms A.

Mr H requested a Sponsored Family Visitor Visa to allow his mother to visit Australia for a limited period and provided a substantial monetary bond as insurance that Ms A would abide by the visa conditions. The month before Ms A was to return, it became too dangerous for her to go back to Iraq and subsequently she was granted a protection visa. As Ms A no longer required sponsorship to remain in Australia, Mr H requested a refund of his bond. This request was refused.

LIVLAS referred the matter to Laura Smyth, who kindly agreed to advise the merits of the case. Mr H’s bond was refunded and he was extremely grateful to both Ms Smyth and PILCH for achieving such a successful outcome.

NFP-Government Funding Agreements
PilchConnect was contacted by a small NFP that provides financial counselling, and ongoing assistance in general debt and credit matters, for marginalised and disadvantaged individuals. The NFP had concerns that a number of clauses in a new draft funding agreement with the State Government were unduly onerous and could threaten the long-term viability of the organisation.

Blake Dawson kindly accepted this matter and upon review of the agreement identified a number of clauses that were unacceptable and beyond the scope of the organisation's constitution. Had the NFP signed the agreement without proper legal advice, it would have jeopardised its operations, which in turn would have had a significantly adverse effect on those individuals whom it is set-up to assist.

The pro bono assistance from Blake Dawson assisted in rectifying the imbalance that exists in many funding agreements between the NFP sector and government, and in this case, allowed the NFP to enter into informed discussions with the government agency about its funding conditions.