It seems to be a case of history repeating, as the Victorian government gets set to enact the Summary Offences and Control of Weapons Acts Amendment Bill 2009 (Bill), which provides police with increased and largely unrestrained search and directive powers, including random searches, move-on powers and stricter penalty and arrest powers. 

The new police powers will breach human rights, given that the exercise of the powers will be based on subjective predictions of possible future behaviour by individual police officers, and the test for the exercise of the powers is broad, vague and arbitrary. This creates the danger that the powers could be applied in a discriminatory and disproportionate way, thus limiting Victorians’ human rights under the Charter of Human Rights and Responsibilities. Indeed, in introducing the legislation into Parliament, the Government has conceded that the Bill is incompatible with Victorians’ human rights, and are unjustifiable, disproportionate and unreasonable at law – but the powers have been introduced anyway!

Manoeuvred into Parliament as a populist ‘tough on crime’ strategy in responding to the public outcry over the perceived recent rise in alcohol-influenced and weapon-related street violence, this is not the first example of misguided legislative showmanship to have been adopted by a State government.  Looking back a decade, NSW enacted the Crimes Legislation Amendment (Police and Public Safety) Act 1998, which outlined almost parallel measures. 

In the NSW Ombudsman’s 1999 report on the NSW Act, increased police powers were found to have lead to illegitimate discrimination. The report presented statistics indicating that only one in every five weapon searches carried out by police actually produced a weapon, revealing the risk that such powers are over-applied and abused. Considering the highly subjective and vague safeguard requirement in the proposed Victorian legislation, which merely requires reasonable suspicion that the person may pose a danger, the scope for abuse of new police powers in Victoria is a very real concern. 

Furthermore, the NSW Ombudsman’s report found that whilst “people from 15 to 19 years of age are much more likely to be stopped and searched… the proportion of productive searches is comparatively low for teenage suspects” (at 1.40). This reflects the inevitable discriminatory function of such laws, which disproportionately target young people, Aboriginal Australians and people experiencing homelessness, whom the report acknowledged as receiving the majority of police move-on directions. 

This finding is mirrored in a recent survey by the Queensland Public Interest Law Clearing House (QPILCH), which found that 76.5% of surveyed Queenslanders experiencing homelessness had been told to ‘move on’ one or more times in the last six months, under the controversial Police Powers and Responsibilities Act 2000 (Qld). With no secure housing, homeless Australians are forced to carry out basic daily living activities in public spaces, unduly exposing them to liability under such legislation. 

Such discriminatory measures infringe upon many human rights as recognised by the Victorian Charter of Human Rights and Responsibilities, such as freedom of movement, association and expression.

A report by Queensland Legal Aid states that there is “no evidence that move on powers would lead to any reduction in public nuisance and other street offences” (p.8) from either domestic or international sources. Rather, available evidence suggests that such ‘zero tolerance’ policing methods tend to divert people to places without police presence or divert them into the commission of more serious crimes. Thus, such policies only serve to sideline more pressing social issues, such as the need to address urban poverty and current mental health approaches.

The PILCH Homeless Persons’ Legal Clinic (HPLC) advocates a community-oriented solution that more narrowly targets the problem of alcohol-fuelled violence, that is informed by experienced community groups, not politicians out to score cheap points, and is founded upon evidence-based strategies.  In her 1999 report, the NSW Ombudsman, relying on the recommendations of a National Crime Prevention study, endorsed a more developmental approach to crime prevention, as opposed to the current proposed coercive approach. A developmental approach involves diverting offenders away from anti-social or criminal behaviour through the provision of educational opportunities, inclusive community attitudes and social environments. Similarly, Victoria’s Chief Commissioner has rejected the need for increased police powers, and suggested that better planning and licensing laws would better protect people from alcohol-fuelled violence.

A more holistic approach to crime and community safety may not have the sensationalist appeal of ‘tough-on-crime’ political posturing, but it does stand as a more effective means of achieving community safety.

_{- Deborah Liebhaber, HPLC Volunteer}

Public interest cases that have merit and are reasonably arguable can usually be supported with legal assistance through organisations such as PILCH. Lawyers provide their skills and advice pro bono in the belief that the fundamental right to be heard also requires that litigants have the ability to be heard.

In Australia’s legal system, which is interwoven with complex statutes and judicial decisions, legal representation is often an essential element of access to justice. But the ability to obtain legal representation is only half the equation. In Australia, the prospect of being ordered to pay the defendant’s costs in the event of an unsuccessful claim is potentially an even more significant practical barrier to access to justice.

For more than 35 years judges, law reform commissions, commentators and litigants have argued that public interest litigation requires a different approach to costs. In 1973, Justice Fox said in Kent v Cavanagh 1 ACTR 43, 55, “It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at the risk of paying costs to the Government if they fail”. The Australian Law Reform Commission in its 1995 report took up this complaint. In Costs Shifting-who pays for litigation? the Commission concluded “…the significant benefits of public interest litigation mean it should not be impeded by the costs allocation rules.” Successive governments – both federal and state - have failed to heed calls for costs reform. The recent Commonwealth Access to Justice Task Force recommended that the Government provide the Federal Court with the discretion to make a public interest costs order. Asking governments to legislate to increase the ability of citizens to bring public interest litigation is like asking a dog to give up its bone. Governments are by far the most common defendant in public interest litigation. The present cost rules effectively provide governments with court-sanctioned protection against judicial scrutiny. It will be a measure of the Government’s commitment to access to justice if it acts on the Task Force’s recommendation.

In 1992, the Federal Court, recognising that the cost of litigation had placed access to justice beyond the reach of “persons of ordinary means”, reformed its rules to allow judges to specify the maximum costs that could be recovered on a party and party basis. This reform was not aimed at increasing access to justice for public interest litigants. Its focus instead was low level commercial litigation. However, a few lawyers have recognised that these reforms, set out in Order 62A of the Federal Court Rules, are not expressed as being limited to commercial cases and may be utilised in public interest cases. In Corcoran v Virgin Blue Airlines Pty Ltd, [2008] FCA 864, the Federal Court made the first protective costs order in a public interest case in more than 13 years. The Court found the application “very finely balanced”, concluding: “A successful litigant is entitled to the usual order for costs. The existence of a public interest is not, of itself, sufficient to alter that entitlement.”

In a more recent case Blue Mountains Conservation Society v Delta Electricity [2009] NSWLEC 150, the NSW Land and Environment Court made, what appears to be the first protective costs order under NSW Civil Procedure Rule 42.4. The Court ordered that the maximum costs that could be recovered by one party from another party would be limited to $20,000. Both the Federal Court and the Land and Environment Court have concluded that the maximum costs order must apply equally to each party. This is in contrast to the position in England. In England courts are prepared to recognise financial disparity between parties and shape their orders accordingly. The English approach recognises that the fundamental principle is access to justice, which includes consideration of the financial resources of both parties. In the Blue Mountain case, relative to the parties assets, a $20,000 cost order would equal some 1/7th of Blue Mountains’ assets; the proportional equivalent costs for Blue Mountains would be 98 cents.

Potential public interest litigants and their lawyers should be considering whether to apply for a protective costs order as part of their litigation planning. Courts in Australia, England and Canada have recognised that access to justice in public interest litigation requires a new approach to costs. It is now up to litigants to ask the courts.

_{- Gary Cazalet, Law School, University of Melbourne, g.cazalet@unimelb.edu.au
A more extensive discussion of these issues is contained in Gary's forthcoming paper Unresolved Issues – Costs in Public Interest Litigation in Australia (2010) 29 Civil Justice Quarterly}

PILCH wishes to thank all of its members, community legal centres, pro bono and volunteer lawyers who have worked with us this year. Thank you for

We wish you a happy festive season

Bushfire Legal Help Award
The Law Institute of Victoria Legal Awards 2009 were awarded in November. PILCH, along with collaborating organisations, was presented with an award of excellence from the LIV for its role in Bushfire Legal Help. The Award recognises PILCH’s outstanding involvement in the Bushfire Legal Help project. LIV President Danny Barlow said the legal profession was united in providing free legal advice and support to victims of the bushfires in the days and months that followed. “More than 580 legal practitioners volunteered their time and expertise and the organisations involved have agreed to keep this going into the current fire season,” Mr Barlow said. “This commitment went above and beyond what we would expect lawyers to provide pro bono.”

National Reform of the Legal Profession
PILCH is participating in Victorian stakeholder consultative meetings, as part of the Council of Australian Government’s (COAG) national legal profession reform. The project is considering options for a national regulatory framework for the legal profession, including practicing certificates and complaints and disciplinary processes.

PILCH is calling for reform of practicing certificate rules to enhance pro bono opportunities. In our submission, government and corporate lawyers should hold practicing certificates that expressly allow them to provide pro bono legal services. PILCH is also advocating free practicing certificates for lawyers engaging only in pro bono legal work.

Other areas of interest to PILCH include the recoverability of legal costs where parties are represented pro bono; adequate consumer protection under the proposed national ombudsman scheme (with complaints resolved independently and prior to any disciplinary action); and adequate provision and awareness of professional indemnity insurance in pro bono legal matters.

Attorney-General support for public interest cost orders & PILCH seminar
A recent access to justice report from the federal Attorney-General’s Department has lent support to legislative amendments which would give federal courts discretion to grant protective cost orders (PCO) in public interest litigation. Link: A Strategic Framework for Access to Justice in the Federal Civil Justice System [PDF 1.8MB] p114. The report recognises the benefit of public interest litigation to “clarify an important right and obligation affecting the community” and to advance the rule of law and reduce legal uncertainty. 

PILCH strongly endorses the recommendation, which reflects its own PCO Submission to the Attorney General: http://www.pilch.org.au/2009_submissions/. PILCH considers PCOs are a fundamental platform for enhancing the public interest and access to the courts.

PILCH Annual Report
Our Annual Report 2008-09 is now available on our website. 

PILCH AGM with guest speaker Christine Nixon

PilchConnect Training
PilchConnect’s last CBD training session for NFP for the year was held on 14 November 2024 - a well-attended session on ‘Handling complaints in the workplace’ presented by Paul Ronfeldt, Principal, Russell Kennedy. We thank Paul for his significant pro bono contribution to the NFP sector.

Seminar series on the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
In November, PILCH commenced its seminar series on women’s rights, hosting a seminar for community advocates in Bendigo and a seminar for the legal profession in Melbourne.  The first seminar, which was co-hosted with Loddon Campaspe Community Legal Centre, examined how community advocates can use human rights to protect women against violence.  The second seminar, hosted jointly with the Australian Human Rights Commission, examined the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, and provided information on how to use that instrument to protect and promote the human rights of women in Australia.  Participants have said that the seminars have helped to improve their understanding of women’s rights, and have brought to light the importance of ensuring that they are effectively protected and promoted.  PILCH looks forward to running further seminars for community advocates in the New Year.  For further information about the seminars series, please contact Simone Cusack at simone.cusack@pilch.org.au.   

PILCH thanks the Victorian Women’s Trust for generously supporting the seminar series.

Death Sentence: A Conversation with Sally Warhaft, Jeff Sparrow and Brigid Delaney
On 17 November, an engaged and passionate crowd gathered at the Trades Hall bar to hear 3 writers talk about their experiences researching and writing about the death penalty. This event, entitled ‘Death Sentence: A Conversation with Sally Warhaft, Jeff Sparrow and Brigid Delaney’, was jointly hosted by PILCH and Reprieve Australia, and succeeded demonstrating in the power of books and writing in illuminating the barbarity and immorality of the death penalty. Sally Warhaft discussed her experiences commissioning Luke Davies’ exquisite piece in The Monthly about the 2 members of the notorious ‘Bali 9’ who are facing the death penalty in Indonesia and conveyed the devastating impact of the death penalty on the families of those committed to death. Jeff Sparrow described his often bizarre experiences meeting with former executioners and a self-proclaimed ‘execution expert’, as he investigated the psychological impact of killing, for his book Killing: Misadventures in Violence. The speakers generated stimulating discussion amongst the audience and reinforced the value of non-legal avenues like books and writing, in advancing the fight against the death penalty.