The business case for maintaining pro bono output when demand is at its peak

Keeping good lawyers busy is a challenge for every law firm as they adjust to a changing economy. Firms invest huge resources in attracting and retaining quality staff and a new business cycle will often mean that the work dries up in one practice group to the benefit of another.

The community legal sector has a clear message for law firms in this economic climate: rather than turn to retrenchments and restructures, consider pro bono as a solution.

Commentators in the US were quick to point out that fallout from the turmoil on ‘Wall Street' will be most acutely felt by those living in ‘Main Street'. The analogy applies equally to the Australian legal market, where the top-end grapples with profit margins and excess capacity, while the community legal sector deals with a spike in demand and uncertainty in funding and resources.

Whether via redundancies, relationship breakdowns, spiralling debt, or mortgage foreclosures, in one way or another many people who are unable to afford legal advice will encounter the justice system for the first time as the economy slows. For those at the coal face of social service delivery, this means more work. Services such as the PILCH Homeless Person's Legal Clinic are already observing an increase in demand and expect the trend to continue over the coming months.

Increasing access to justice for public interest litigants

In a recent speech to the Judicial Conference of Australia, the Commonwealth Attorney-General, the Hon. Robert McClelland MP, said that "[j]ustice should be available for everyone, not merely for those who can afford to participate in protracted litigation". This is none more so than in the case of public interest litigation.

PILCH has observed that many meritorious public interest matters are not ultimately pursued because of the risk of an adverse costs order. In this way, the costs regime acts as a disincentive to public interest litigation, particularly for marginalised and disadvantaged people. The problem is heightened where novel or untested issues arise, such that legal advisors are not able to advise with certainty on the likely outcome of litigation. This costs barrier also operates as a limitation on the right to access to, and equality before the courts, contained in sections 8 and 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

In September, the Commonwealth Attorney-General, the Hon. Robert McClelland MP, announced reforms that will make the pro bono contribution of law firms tendering for federal Government work a relevant consideration in evaluating their legal services tenders.

The cost of legal advice undoubtedly acts as a barrier to access to justice for many Australians. PILCH believes that the tender arrangements, which will require government panel firms to report against defined pro bono targets, will encourage firms across Australia to build upon and improve their pro bono programs and facilitate access to justice for more people.

PILCH and our clients are major beneficiaries of the generosity of Victorian law firms that donate their time and expertise to many marginalised and disadvantaged people who would not otherwise access legal assistance. PILCH believes that the Victorian Government model, which makes a minimum pro bono contribution for an ‘approved cause' a contractual requirement of Government work, has been a driving force behind the development of sophisticated and targeted pro bono programs in Victorian firms, and increased the amount of pro bono work undertaken.

Victorian lawyers complete more hours of pro bono work than any other state. In a 2007 survey by the National Pro Bono Resource Centre, the median numbers of hours of pro bono work completed by lawyers were: 50 in Victoria; 40 in NSW and 31-40 in Queensland. It is a credit to the firms and the legal profession that such work is undertaken and it is fitting that the Commonwealth follows Victoria's lead by recognising and rewarding this contribution with its purchasing power.

However, there are strong arguments for making the pro bono targets binding. While law firm pro bono targets are not mandatory under the Commonwealth arrangements, they will undoubtedly create an incentive for panel firms to take pro bono seriously or risk jeopardising their placement on government panels. Notwithstanding, there is a risk that the non-binding nature of the targets might mean that little weight is afforded to the targets by Government agencies when assessing panel arrangements.

If a firm is providing a Government agency with good legal advice, but hasn't reached its pro bono target, there is no mechanism under the proposed arrangements for a firm to be held accountable. There is a danger, therefore, that pro bono targets will become dispensable.

PILCH welcomes the Commonwealth's renewed focus on pro bono, but considers that the Commonwealth should incorporate pro bono requirements into legal services contracts, in line with the Victorian model. Moreover, the federal Government should use the pro bono model for the procurement of legal services as the benchmark for other sectors in their commercial dealings with Government.

A year in review

Amy Kilpatrick, PILCH NSW Executive Director, Tony Woodyatt, QPILCH Executive Director, and Nicholas Linke, Partner at Fisher Jeffries in South Australia, report on the exciting developments in pro bono and public interest law across the country in 2008.

Calling on the Victorian government to legalise begging 

The HPLC is conducting a law reform project, entitled ‘We Want Change', to lobby the Victorian government to repeal the current begging offence under section 49A of the Summary Offences Act 1966 (Vic). The project aims to bring about positive change by reforming a current law which has a disproportionate impact on people experiencing homelessness.

An essential component of the project is the development of a report on begging in Melbourne, which will analyse quantitative and qualitative data on the nature, extent and causes of begging and examine the government's policy response to begging within a human rights framework. This report will build upon previous research and reporting conducted in 2001 by Hanover Welfare Services and in 2005 by the HPLC. The report will be finalised and submitted to the Attorney-General in mid-December 2008, calling for the immediate repeal of the begging offence and a broad review of public space offences contained in Victorian legislation and policies.

PILCH has moved!
PILCH is now located at Level 17, 461 Bourke St, Melbourne 3000
PO Box 16013 Melbourne 8007
DX 128 Melbourne

General number - 03 8636 4400
Legal inquiries - 03 8636 4444
Fax - 03 8636 4455

Media release: human rights consultation will enhance democracy
PILCH welcomes the federal Government's launch of a national consultation on the protection and promotion of human rights and responsibilities. PILCH will be active in the consultation and is happy to field expressions of interest from lawyers.
 Download the media release

PILCH AGM with guest speaker Tim Costello
Climate change & social disadvantage: how lawyers can help
Guest speaker Tim Costello, CEO of World Vision Australia, launched PILCH's Climate Change Justice Project at PILCH's AGM, held at DLA Phillips Fox last week. Rev Costello provided a fascinating insight into World Vision's climate change initiatives aimed at equipping disadvantaged communities in Africa to deal with the effects of global warming, and how lawyers can contribute to that process.

PilchConnect launch
PilchConnect officially launched its webportal service on 19th November. The launch featured a panel discussion and Q & A about key regulatory issues facing the not-for-profit sector. The distinguished panel was made up of Senator Ursula Stephens (Parliamentary Secretary for Social Inclusion and Parliamentary Secretary for the Voluntary Sector), Ms Adele Ferguson (Journalist, The Australian) and Prof Myles McGregor-Lowndes (Director, Australian Centre for Philanthropy and Nonprofit Studies at QUT), and moderated by Ms Sue Woodward, (Manager PilchConnect.)

 Listen to the audio recording of the panel discussion

Staff & Board
PILCH welcomes three new staff members: Belinda Johnson, VBLAS Lawyer; Chris Povey, HPLC Lawyer, and; Nathan McDonald, PilchConnect Lawyer.

PILCH welcomes Sarah Matheson, Partner at Allens Arthur Robinson, as the new President of PILCH. PILCH would also like to thank and acknowledge the outstanding work and commitment of retiring President David Krasnostein of National Australia Bank, and retiring board member John Emerson of Freehills. PILCH welcomes to the board Di Otto of Melbourne University Law School, Malcolm Cooke of Freehills, and Will Irving of Telstra.

Justice for all, Law Institute Journal, December 2008
by Lucy Mckernan, Public Interest Scheme Manager, and Mat Tinkler, Acting PILCH Executive Director
PILCH supports the implementation of protective costs orders

Victorian firms lead in giving, Law Institute Journal, November 2008
by Mat Tinkler, Acting PILCH Executive Director
A National Pro Bono Resource Centre survey gives the first national picture of the pro bono contributions of large and mid-tier firms

rightnow radio, 3CR, 27 November 2024
Simone Cusack, public interest lawyer, discusses Australia's moves to accede to the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women

Breakfast show, RRR, 12 November 2008
Lucy McKernan, Co-Manager of the Public Interest Law Scheme, discusses the death penalty in the context of the execution of the Bali Bombers, and PILCH's work on the review of the AFP Guidelines regarding co-operation with foreign law enforcement agencies in death penalty cases

Seven interns will head to four continents, Castan Centre for Human Rights Law Newsletter, November 2008
PILCH volunteer Tania Marcello is among 7 Monash Law students to be selected for the Castan Centre's Global Internship Program. Tania will be undertaking the internship at Human Rights First in New York

Blaze evidence, Moreland Leader, 27 October 2024
Man heard screams, Herald Sun, 23 October 2024
HPLC's involvement in the Coronial Inquest into the deaths of Leigh Sinclair and Christopher Giorgi who died when the Brunswick rooming house in which they were staying caught fire in 2006. At the inquest, the HPLC, TUV and CHP sought to highlight sub-standard fire safety conditions and the need for regulatory improvement and accountability and enforcement by the Victorian Government in relation to rooming houses
 Read more about HPLC's rooming house law reform project

Palliative legal care, Law Institute Journal, October 2008
by Peter Noble Noble, Principal Solicitor, Loddon Campaspe Community Legal Centre
The monthly pro bono LIJ column coordinated by PILCH

Seniors Rights Victoria: working to stop abuse of the Elderly, Parity, August 2008 
by Caroline Adler (Manager/Principal Solicitor, HPLC) and Susannah Sage Jacobson (Pro Bono Manager, Seniors Rights Victoria

The Henry Inquiry 

PILCH and PilchConnect have recently written a formal submission to the Australia's Future Tax System Review Panel (otherwise known as the Henry Inquiry) advocating for a review of the system that provides tax concessions to charities and not-for-profit organisations.

The submission:

• draws attention to the difficulties that not-for-profit organisations face in obtaining endorsement as charitable institutions and applying for deductible gift recipient status; and
• notes that over 40% of the requests for assistance PILCH receives relate to eligibility and the process of obtaining or disputing tax concessions.

As a result of this work PILCH was also recently invited to participate in a Taxation Roundtable Conference addressing taxation issues raised by the Henry Inquiry organised by the Australian Council of Trade Unions, Australian Council Of Social Service and the Consumer Federation of Australia.

In order to provide assistance to the not-for-profit sector more efficiently, PILCH and PilchConnect have organised a number of seminars at member law firms and are establishing a dedicated web and phone inquiry service.

 Download the submission

Independent Reviewer of Terrorism Laws Bill

On 4 September 2008, the Australian Senate Standing Committee on Legal and Constitutional Affairs invited PILCH to make a submission in relation to the Independent Reviewer of Terrorism Laws Bill 2008.

The Bill proposes to establish an Independent Reviewer of Terrorism Laws to ensure ongoing and integrated review of the operation, effectiveness and implications of laws in Australia relating to terrorism. In its submission, PILCH supports the establishment of an independent reviewer of terrorism laws but recommends a number of amendments to improve the Bill, including that the Independent Reviewer be:

• appointed in a transparent and accountable manner;
• required to have regard to relevant international human rights law standards;
• granted the power to review any legislation which impacts upon the prevention, detection or prosecution of a terrorist act; and
• required to have regard to a non-exhaustive list of relevant considerations when determining review priorities.

Despite a tight deadline, the submission was lodged on 12 September 2024 due to the invaluable assistance provided by Mallesons Human Rights Law Group, in particular Sharyn Broomhead, Peter Henley, Robert Kovacs, James McCarthy and Jayani Nadaraj.

 Download the submission

Public Interest Law Scheme: challenge to OPA

Clayton Utz accepted a PILCH referral to provide pro bono assistance to Mr and Mrs X, Iraqi Muslim immigrants to Australia. Mr and Mrs X wished to challenge the appointment of the Office of the Public Advocate (OPA) as guardian of their adult son Mr Y, who has an intellectual disability. OPA, as Mr Y’s guardian, had decided to place Mr Y in supported accommodation but Mr and Mrs X became concerned that Mr Y’s cultural and religious needs were not being met there. Mr and Mrs X felt strongly that it was in their son’s best interests to live in the family home instead. Chris Brown (Lawyer) and Heidi Vesper (Articled Clerk) represented Mr and Mrs X at a VCAT hearing in October and successfully argued that the guardianship order should be revoked.
_{Read more about the Public Interest Law Scheme}

Victorian Bar Legal Assistance Scheme: unfair contract

VBLAS received an application from the Monash-Oakleigh Legal Service on behalf of Mrs Z. On the pretence of buying her a birthday present, Mrs Z and her husband Mr W purchased a motor vehicle and obtained finance from Mercedes Benz Financial Services (MBFS) to do so. Mrs Z and Mr W signed the contract together as co-borrowers. Both Mrs Z and Mr W speak Mandarin and require an interpreter.

An MBFS employee who speaks fluent Mandarin assisted in completion of the contract at the time of signing. Mrs Z asked for documents to be explained to her by the employee, which he did not do. Mrs Z told the employee that she would not be in a position to meet the repayments in the event of default as she is not in paid employment, but she was told by the employee not to worry.

Mrs Z's marriage subsequently broke down and Mr W stopped making payments. MBFS wished to enforce the credit contract against Mrs Z on the basis that Mr W was unemployed and had no assets. Mrs Z wished to be released from the Credit Contract on the basis that she had not intended to become part of this contract.

Josh Wilson SC agreed to appear pro bono in a 3 day hearing at the Victorian Civil and Administrative Tribunal. The length of the hearing was largely due to Mrs Z's evidence having to be interpreted from Mandarin to English. Mr Wilson was successful in arguing that the contract was unfair pursuant to the terms of the Consumer Credit (Victoria) Code. As a result, VCAT made orders setting aside the Credit Contract between Mrs Z and MBFS, and preventing MBFS from taking any further enforcement proceedings.
_{Read more about VBLAS} 

Law Institute Legal Assistance Scheme: Legal Aid cuts impact on pro bono

The idea of legal aid facilitating access to justice is more than 100 years old and led to the establishment of the Legal Aid Commission of Victoria in 1978 which was then replaced by Victoria Legal Aid in December 1995. Throughout its existence legal aid in Victoria has been used to champion the cause of the disadvantaged and marginalized in accessing the legal system and ensuring that they receive a fair hearing, a right that is only truly meaningful in many respects through legal representation.

Yet despite its noble objectives, legal aid is not available to some disadvantaged Victorians through the application of a narrow means test that over time keeps shrinking the amount of assets that an individual may have to qualify for legal aid assistance. LIVLAS has provided pro bono legal assistance and representation to many disadvantaged Victorians who could not afford private representation but failed the legal aid means test. The matters have ranged from criminal charges relating to alleged serious assaults and stalking, as well as intervention order matters and family law issues involving contact and residence.

These individuals failed the means test in some instances due to the amount of equity that they had in their home, which was just over the $100,000 limit recently inserted into the Victoria Legal Aid Guidelines. Yet these individuals were also on limited incomes including government benefits whereby they were not in a position to obtain a loan from a bank to pay for legal advice and representation. If it were not for pro bono legal assistance, they would have been denied a fair hearing in our courts. Other individuals were refused assistance because financial issues particular to their circumstances were not considered since they were not covered by the guidelines.

This unsatisfactory situation is highlighted by a recent applicant to LIVLAS who had been refused legal aid despite being on a small wage with a dependent child. The client summed up the situation as follows: "Legal aid is not available for the working poor. Where's the justice in that?"

Given the above, it would be advantageous for a more flexible means test to be used for assessing applications for legal aid assistance. In addition, there is a need to broaden the guidelines for civil matters - an issue that LIVLAS and PILCH have advocated for in policy and submission work for many years.
_{Read more about LIVLAS}