August 2009 marked the 25th anniversary of the enactment of the Sex Discrimination Act 1984 (Cth) (SDA), Australia's primary law on sex discrimination. In the 25 years since this Act was introduced, there have been important changes in how the Australian community responds to discrimination against, and the unequal treatment of, women. Community understanding of sex discrimination and the obligations to secure its elimination has improved. There has also been progress in eliminating some of the most overt forms of sex discrimination. 

Notwithstanding these developments, as evidenced in the 2008 report of the Senate Legal and Constitutional Affairs Committee on the effectiveness of the SDA, significant challenges remain in the struggle to eliminate all forms of discrimination against women and to achieve substantive equality between men and women. For example, evidence suggests that women are underrepresented on boards and in leadership positions, and are significantly more likely than men to be impoverished in retirement, since superannuation balances and payouts for women are approximately half of those of men. Research also shows that approximately 1 in 3 women in Australia will experience gender-based violence in their lifetime.  

In an important step forward for women's rights, the Australian Government recently became a party to a human rights treaty - the UN Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women - that provides women with a means to hold the Government legally accountable where it fails to protect and promote their human rights. 

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^{For further information about PILCH's work on women's rights, please contact Simone Cusack at simone.cusack@pilch.org.au.}

On 1 October 2006, Leigh Sinclair and Christopher Giorgi died in a rooming house fire at 211A Sydney Rd, Brunswick. Five other residents, including a seven year old child, were lucky to escape alive.  A few weeks ago Coroner Peter White found that, “These two young lives were lost against a backdrop, which included a failure in the administration of applicable building code fire safety, planning and rooming house regulations”. 

The PILCH Homeless Persons’ Legal Clinic (HPLC) has welcomed the findings of the Coroner into Leigh and Christopher's deaths, and demanded that the Government act to implement these changes and save lives. Many clients of the HPLC are rooming/boarding house residents, and the HPLC has long been concerned about the inadequate regulation of rooming house accommodation. The HPLC, together with the Tenants Union of Victoria (TUV) and the Council to Homeless Persons (CHP), were granted standing at the inquest to raise these issues.

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Environment East Gippsland Inc v VicForests (No 2) [2009] VSC 421 (unreported, 17 September 2009, Forrest J)

The Supreme Court has recently recognised the public interest nature of litigation as an important consideration in determining whether to order security in respect of an undertaking as to damages.

The case concerned an undertaking as to damages proffered by the applicant, Environment East Gippsland (EEG), in support of its application for an interlocutory injunction. The interlocutory injunction concerned logging activities in what EEG argued was a major native fauna habitat. EEG alleged that the logging was in breach of VicForest’s (the respondent) legislative obligations relating to conservation. VicForest submitted that EEG’s financial position made the undertaking inadequate, and that security should be imposed as a condition of the injunction. Forrest J rejected the respondent’s submissions on public interest grounds.

Forrest J stated that where an undertaking may be of dubious value, the court is required to exercise its judgement as to what is appropriate to ensure adequate compensation. Generally an applicant will be required to provide the undertaking or applicable security, unless ‘exceptional circumstances’ are present.  

Forrest J found that ‘exceptional circumstances’ were present given:

• the imperative of native fauna protection, and its public interest significance, was important to the purpose of the legislation in question;
• an order that EEG should provide security would probably ‘stultify its ability to conduct its case against VicForests and therefore run contrary to the public interest’;
• there is a ‘genuine risk of irremediable harm or serious damage’ to an endangered and threatened species, and in particular to its habitat; and that
• there is a ‘prima facie case that VicForests may, if it carries out its harvesting operations in the two coupes, breach statutory obligations’.

His Honour therefore concluded that security should not be ordered in addition to the usual undertaking as to damages.

Melbourne Award for the HPLC
Last month the HPLC was awarded the prestigious Melbourne Award for Contribution to Community in recognition of the outstanding work of the HPLC team at PILCH and the many wonderful volunteers and that have contributed to the work of the HPLC over the years. It is also testament to the fantastic contribution of PILCH law firm members and volunteer lawyers who provide assistance and advocacy for some of our community’s most marginalised and disadvantaged people. According to the Lord Mayor, the awards “celebrate the achievements and courage upon which out city is founded. As well as honouring our shining lights, they also inspire other potential achievers to make their contribution.”

Protecting and Promoting Women’s Rights: A Seminar for Lawyers and Barristers on Using the Optional Protocol to the UN Women’s Convention - 17 November 2024
This seminar, introduced by special guest speaker Dr. Cassandra Goldie and presented by Simone Cusack and Lucy McKernan of PILCH, will examine how the communication and inquiry procedures can be used to better protect and promote women’s rights, both domestically and internationally. 
_{Note: the seminar is intended for lawyers/barristers. PILCH will be conducting community workshops at a later date.}
Read more and register

HPLC calls for a new Homelessness Act
In a recent submission to the House of Representatives’ Standing Committee on Family, Community, Housing and Youth (Committee), and in an address to the Committee in Canberra, the HPLC has called for the introduction of a new Homelessness Act to protect and promote Australians’ right to adequate housing. The HPLC proposes a paradigm shift in Australia's legislative and policy approach to homelessness which would allow the Government to develop and deliver more responsive, efficient, effective and empowering homelessness policy and services. The HPLC is calling for a new Act to enshrine the right to adequate housing as recognised in international human rights law, and to incorporate other rights-based mechanisms such as core minimum standards for homelessness services, participation models and funding that is linked to individual outcomes.
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Migration training - VBLAS
Although VBLAS has seen a marked decline in applications in Asylum Seeker matters over the past two years, this jurisdiction still remains one of its most important. With the support of the Victorian’s Bar Pro Bono Committee, the Refugee and Immigration Legal Centre (RILC) and the Federal Court of Australia, VBLAS has again hosted comprehensive Migration Training, led by Debbie Mortimer SC, for members of the Victorian Bar, with over sixty barristers registering. VBLAS is proud to coordinate an important training event for a jurisdiction that is desperately under funded and populated by applicants whose situation is often grave. Thank you to all those who contributed to and supported the training.

PilchConnect training
PilchConnect continues to draw upon the broad expertise of its member law firms to provide legal training seminars for not-for-profit (NFP) community organisations. The next seminar is being hosted by Russell Kennedy, on the topic: ‘Handling employee & volunteer complaints: discrimination, bullying & harassment’. The seminar will also look at the new Fair Work Act 2009 (Cth) and how this impacts on NFPs in Victoria. This seminar for NFP organisations will be held on Thursday 12 November 2009. Further details about the seminar and how to register can be found on the training section of the PilchConnect website.

In the last two months PILCH has written, contributed to or been featured in the following media and publications: 

Damning report should open doors to safer rooming houses, The Age, 7 October 2024
An opinion piece by James Farrell, HPLC Manager/Principal Lawyer, and Caris Cadd, HPLC Secondee Lawyer
Read online

Calls for tenancy reforms following deaths, The Age, 30 September 2024
The Victorian Council of Social Service, Tenants Union of Victoria and Homeless Persons Legal Clinic called on the Government to implement the Coroner's recent recommendations in relation to improved rooming house regulations following the deaths of Leigh Sinclair and Christopher Giorgi in a Brunswick rooming house in 2006
Read online

Deaths in rooming house fire highlight the need for regulation, The Wire, 29 September 2024
Interview with HPLC Manager/Principal Lawyer James Farrell and Homeground CEO Stephen Nash
Listen online

NFP sector sweeps 2009 Melbourne Awards, Third Sector Magazine, September 2009
Read online

HPLC lawyers trade pens for soccer boots and 2XU tees at HPLC Street Soccer Challenge, 2XU News, September 2009
Read online

More than a sum of its parts, Law Institute Journal, September 2009
HPLC lawyer Chris Povey comments on the benefit of pro bono legal work on the overall justice system, including the pro bono contribution to the recent VCAT review.

Falling on deaf ears: a consumer's perspective of being heard in the homelessness sector, Parity, August 2009
An article by a member of the HPLC's Consumer Advisory Group for the Parity edition 'Homeless Voices'

Discrimination against Women: Eliminating its Compounded and Systemic Forms, Alternative Law Journal (2009), Simone Cusack

Combating Discrimination Based on Sex and Gender, in Catarina Krause and Martin Scheinin, eds., International Protection of Human Rights: A Textbook (Turku/Abo: Abo Akademi University Institute for Human Rights, 2009), 205-226, by Simone Cusack and Rebecca J Cook

Advancing Women’s Rights Through Human Rights Law: Possibilities and Practical Action, Australian Domestic & Family Violence Clearinghouse, Simone Cusack, 2009

PilchConnect in the Victorian Government’s Legal Services Annual Report
PILCH’s specialist legal service for community organisations, PilchConnect, was recently acknowledged in the Victorian Government’s Legal Services Annual Report for 2007-08. In that Report, the Department of Justice recognised that PilchConnect 'is a positive step in providing assistance to many non-profit organisations in a manner that understands the commonalities of their issues and reserves direct referrals for advice when things go wrong.’ 
The full Report is available from the Department of Justice website. 

Inquiry into the Migration (Complementary Protection) Bill 2009
In September 2009 PILCH made a submission to the Standing Committee on Legal and Constitutional Affairs into the Migration (Complementary Protection) Bill 2009. PILCH’s submission dealt with the Bill in in relation to Australia's treaty obligations pursuant to the Convention against Torture and the International Covenant on Civil and Political Rights.
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Inquiry into the Marriage Equality Amendment Bill
In August 2009, PILCH made a submission to the Senate Standing Committee on Legal and Constitutional Affairs on its inquiry into the Marriage Equality Amendment Bill 2009 (Cth) (Bill). In its submission, PILCH highlighted the need to adopt a human rights-based approach to the Marriage Act 1961 (Cth) (Act) and, in so doing, endorsed the legal recognition of same-sex marriages. 
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Inquiry into the Extradition and Mutual Assistance Bill
In August 2009, PILCH made a submission to the Attorney-General’s Department on the Exposure Draft of the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 (Cth).  PILCH’s submission addressed those parts of the draft legislation that relate to discrimination, torture and the death penalty.  
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Inquiry into Homelessness Legislation
In August 2009, the HPLC made a submission to the House of Representatives’ Standing Committee on Family, Community, Housing and Youth (Committee) in response to its inquiry into homelessness legislation.
Read more

Migration submission
Mick to provide

LIVLAS:
Assistance to obtain Legal Aid
LIVLAS not only assists clients to obtain pro bono advice and representation, but also works with individuals to obtain Legal Aid funding that has been initially denied. The difficulty often arises where clients are only given limited advice before applying for Legal Aid funding and abandoned when funding is rejected. The clients are then left to self-represent and end up in a mess of interim proceedings and delays. This has been particularly the case in Family law and Children’s Court matters whereby a complex relationship exists at times between clients’ expectations, Legal Aid funding requirements, and the ability of private practitioners to offer pro bono assistance for proceedings that are often long and resource intensive.

Added to the mix is an expectation from the private profession that Legal Aid funding should be available in these matters and to always expect pro bono services to step in and fill the gap is both unfair and unrealistic. For its part, Legal Aid expects applicants to seek outcomes that have reasonable prospects of success and will not provide funding for ambit submissions.

The case of Ms W highlights these issues. Ms W lives in a regional area and has a mild intellectual disability. She required legal representation in Children’s Court Proceedings regarding her son who also has a disability. Legal Aid was refused on the basis that her application for full custody of her son did not have reasonable prospects of success. A solicitor assisted her to appeal the decision, however, the appeal was unsuccessful and the solicitor withdrew.

Ms W contacted LIVLAS in a distressed state seeking pro bono representation. Given that pro bono assistance is difficult to obtain in Children’s Court proceedings and that the application for legal aid did not include a desired outcome that had reasonable prospects of success, LIVLAS approached solicitor Bruce Caulfield to assist Ms W for another application for Legal Aid. Mr Caulfield worked with her to devise a graduated plan for increased access to her son, rather than full custody all at once. That proposal was acceptable to Legal Aid and Ms W obtained funding to have full representation at Court.

The matter of Ms X is also a case on point. Ms X sought legal aid assistance in opposing an application for child contact by her ex-husband, Mr Y, due to allegations of sexual assault against their two daughters who required counseling as a result of the alleged abuse. Ms X was adamant that the father should have no further contact with the girls or with her other child. The application for Legal Aid funding was rejected on the grounds that she would have no reasonable prospects of success. When her solicitor appealed the decision, funding was again refused and the solicitor withdrew. 

Ms X obtained multiple adjournments whilst seeking alternative representation and grew increasingly frantic. LIVLAS approached Glenys Jardine of counsel to represent her in interim proceedings, with her original solicitor remaining on the record as pro bono instructor. Ms Jardine counseled Ms X to modify her submission to Legal Aid to allow contact by cards and letters only, following the recommendations of the court-ordered psychologist’s report. Ms X resubmitted her application to Legal Aid on that basis and was successful in obtaining funding. Final orders allowed the father written contact with the children. Ms X recently had a party to celebrate the end of her ordeal.

PilchConnect:
Social Enterprises
PilchConnect was approached by a not-for-profit (NFP) organisation which provides practical assistance to social enterprises across Australia. The NFP provides direct support for those organisations which trade for a social purpose and create employment for people who are disadvantaged in the labour market (eg. because of a disability or mental illness). 

PilchConnect was asked to assist with facilitating legal assistance on behalf of the NFP, who sought legal advice on potential legal barriers or impediments to setting up an innovative funding model for social enterprises under Australia’s current legal system. Given the potential broad public benefit of this project for the NFP sector as a whole, PilchConnect accepted the matter and worked with the client to document the key legal issues. Allens Arthur Robinson (AAR) generously agreed to provide pro bono assistance on this matter.

While the matter is ongoing, the NFP client has stated that the assistance received from both PilchConnect and AAR has ‘been has instrumental in refining and directing how we best structure the fund to enable greater social outcomes’.

VBLAS:
Eviction from Community Residential Unit
Villamanta Disability Rights Legal Service contacted VBLAS in August 2008 seeking representation for their client, a 49 year old with cerebral palsy. The client relies on a wheelchair for mobility and has lived in a Community Residential Unit (CRU) operated by a Disability Service Provider (DSP) for over 12 years.

In July 2008 the DSP served on the client a Notice to Vacate (the Notice) pursuant to section 74 of the Disability Services Act (the Act). The specific reasons for relocation were that the client had endangered the safety of other residents or staff in the CRU and had caused serious disruption to the proper use and enjoyment of the CRU. The client wanted to challenge the Notice on the grounds that it was invalid, as it was not issued in accordance with the Act.

Anthony Strahan of Counsel accepted a referral from VBLAS to provide pro bono assistance to the client. After a series of protracted mediations the matter proceeded to hearing in the Victorian Civil and Administrative Tribunal (the Tribunal), at which time the Notice was withdrawn, it being conceded by the DSP that it was not valid.

In May 2009 the DSP served the client with another two Notices for the same reasons as above. Again, the client challenged the validity of the notices. Mr Strahan represented the client at the preliminary hearing in August 2009. The parties asked the Tribunal to limit the hearing to the validity of the Notices without reference to the evidence that could be called in support of the application, to avoid inconvenience to a number of witnesses with disabilities.

Based on the submissions of Counsel, the Tribunal ordered and declared that each Notice was invalid as:

• they did not identify with a sufficient degree of detail the facts said to constitute the endangerment/serious disruption
• they did not identify any current or continuing endangerment/serious disruption.

Accordingly, the client was not required to vacate the CRU.

PILCH has recently been granted leave to appear as amicus curiae in a Supreme Court proceeding before Justice Kyrou, specifically to provide assistance to the Court in managing the proceeding which was being disrupted by the behaviour of the Plaintiff, a litigant-in-person.

PILCH was contacted by the Plaintiff requesting urgent assistance in relation to a Supreme Court proceeding that he had brought against the State of Victoria and 19 individual defendants (all police officers) alleging civil wrongdoing and claiming damages. The Plaintiff had recently been directed by Justice Kyrou to seek legal assistance for himself and/or the Court and to provide a copy of the transcript of proceedings to confirm the Court’s strong desire for assistance. 

The transcript indicated that there had been a number of disruptions by the Plaintiff in Court, including abusive language and behaviour, continuous interruptions and an apparent attempt at self-harm.  Justice Kyrou indicated that some of the behaviour may amount to contempt of Court and he was concerned about the safety of the other persons in Court. The judge also stated that he was concerned that the Plaintiff was unwell and was unable to continue to conduct the proceedings as a litigant-in-person and in that context it was highly desirable that the Plaintiff have legal representation. The pertinent parts of the transcript read: 

‘ …perhaps photocopy the transcript of what I've just said, take it to the Public Advocate, Human Rights Commission, say this is what this judge has said, there's a risk here that my husband's case maybe not proceeded with, we need help. The judge needs help, the judge wants help, the judge invites assistance so that I can hear your point of view and how I can best look after the interests of someone with an illness in [the Plaintiff]’s situation as best as possible, in fairness to him as well as the defendants.  That's what I would like to have, to have assistance.
…………
Now the best thing that can happen is that you do your best to get proper legal representation and tell people that it's a very important precedent where this judge requires assistance from properly briefed legal representatives to help the judge decide what the best way forward is, in fairness to all the parties and in the proper administration of the justice system in this state.‘ 

PILCH instructed pro bono counsel Josh Wilson SC and Tim Scotter to appear on its behalf and made an application for leave to appear as amicus curiae in the proceeding, to assist the Court to determine the best way forward in managing the Plaintiff’s behaviour and ensuring natural justice for the parties.  PILCH was granted leave to appear as amicus and made submissions as to the future conduct of the proceeding, in particular that medical evidence should be obtained to determine whether it was appropriate to appoint a litigation guardian in respect of the Plaintiff. PILCH was asked by the Court to play a role in nominating and briefing an independent psychiatrist to undertake an assessment of the Plaintiff.  The matter has been adjourned.

PILCH may have further involvement in this case in the future in relation to: the appointment of a litigation guardian; the application of the Victorian Charter of Human Rights and Responsibilities and in particular the right to a fair hearing as it applies to legal representation; contempt of court; and the grounds for a permanent stay of proceedings. Justice Kyrou was very grateful for the assistance provided by PILCH and pro bono counsel. He thanked PILCH on more than 1 occasion, for instance saying: 

‘[to Mr S] Everyone from PILCH and so on is doing a marvelous job in assisting this court as a friend of the court and also you, they are not getting paid for it … [to Mr Wilson] This court really cannot do its job properly in the case of self-represented individuals without the assistance of the Bar in the form of the Barristers Assistance Scheme and also organisations like PILCH which step up when they’re required to and I just express my gratitude to you…'