‘Please, sir, I want some more’

The begging bowl method of funding community legal centres has got to go

In April of this year — thanks largely to stellar advocacy from many organisations, including the Queensland Law Society and the Law Council of Australia — Australia avoided going over the ‘funding cliff’ for community legal centres, with federal Attorney-General George Brandis announcing that planned cuts to community legal centre (CLC) funding would not go ahead.

The decision means that tens of thousands of people around Australia who cannot afford legal representation and who slip through the cracks of Legal Aid will continue to be able to access legal assistance from CLCs. The effect of this is that they will be able to get professional help from real solicitors and experienced legal support staff — in short, access to justice; it is a win for the clients of these centres, the community in general and indeed common sense.

Unfortunately, the reversal of the funding cuts does not address the real problem-the fact that the funding for CLCs remains an item in consolidated revenue, and subject to the vagaries of the government of the day, the fluctuating economy and populist belt-tightening exercises by a cash-strapped Treasury. Although the funding cliff has been avoided this time, it will remain a danger lurking on the horizon for as long as funding remains something the government can dial up or down based on economic considerations rather than what is needed to take care of our most vulnerable citizens.

To exacerbate matters, it is not the case that the current funding is even close to adequate. There are many who are beyond the resources of CLCs, and every year around 120 000 people are turned away. For those people, they have no choice but to navigate the legal system alone, which will likely result in unjust outcomes for them.

Ironically, it isn’t just clients who are turned away by CLCs — solicitors are turned away in droves. That is, qualified legal practitioners who are happy to give up their free time to assist those in need, but for whom the centres cannot even find a place to sit. This is a tragic embarrassment in a wealthy country like Australia — that professionals are willing to give up their time for free to assist society’s most vulnerable people, and cannot do so.

Governments are rarely moved by the plight of CLC clients, because the voting public isn’t either. It is too easy to dismiss them as criminals and unemployed slackers, stereotypes regularly revisited and reinforced by a shallow and dilettante media. These stereotypes are as false as most, and in fact true criminals accused of something serious enough will probably find funding through legal aid; many of those simply caught up in the system rely solely on CLC assistance.

Life without legal representation

In a crowded suburban Magistrates Court, in the very back row of the gallery, sits a young mother nervously fidgeting as she waits for her case to be called. She has been waiting a long time and has begun to worry that she won’t get her matter heard in time to collect her oldest child from school, meaning she will have to pay for after-school care — an expense she can ill afford.

In the seat next to her is her mother, who has come along for support — and to entertain her younger child, for whom the busy courtroom provides little in the way of fun. The task of amusing the three-year-old has become more difficult with each hour and the child’s breaking point is fast approaching. A seemingly endless cavalcade of lawyers and clients has passed through before the young mother, who for the hundredth time reads documents that have been served on her in relation to an alleged debt, which she disputes; given the legalese in which the documents are drafted, however, they may as well be written in Martian as far as she is concerned.

Finally her name is called and she presents at the bar table and struggles to get the magistrate to understand her position. Against her is a professional debt collector — not a lawyer, but someone who spends a great many days running matters in court; he shows none of the nerves plaguing the young mum. The magistrate has great sympathy for the young woman before her and does what she can to make her feel at ease and to explain the situation to her — but the magistrate cannot run the matter for her and has a dozen more matters to go before she can grab a short lunch and then head on to hear a trial in the afternoon. Like all of the state’s hard-working magistrates, her day started early and will run very late; there is no other way to get through the mountain of cases in her court.

At last the young woman understands some of the case against her and knows what records she will need to have when the matter is finally heard — which will not be for 12 months as the court calendar is simply too crowded. The young mum hurries off — if she is quick she can be on time to collect her son from school — but she remains confused and frustrated that it will be so long before this matter no longer hangs over her head.

Her place at the bar table is taken by a young man who isn’t really sure why he is there. He has received a fine in the mail, but as he is illiterate the details escape him, and he is too ashamed to ask a friend to read it. He simply wanted to pay the fine but ticked the wrong box, and now finds himself facing a hearing date. The magistrate quickly determines the error and soon the young man understands what he needs to do to pay the fine, but the magistrate is frustrated; she doesn’t blame the young man (who cannot hide his illiteracy from her shrewd mind) but he has taken more of her valuable and inadequate time on a matter that should never have come to her in the first place.

These scenes are invented, but something very like them happened today, yesterday and last week — and will happen tomorrow and next week too. Our hardworking but under-resourced magistrates and judges regularly deal with unrepresented litigants stumbling through the court system, often dealing with illiteracy and similar problems. Unfamiliar with the system and unable to understand much of the documentation, such litigants take up more time than those with solicitors, and rarely obtain a good outcome.

If CLC funding was increased to appropriate levels — and inoculated from raiding by the government when the economy dips — there would be far fewer of these stories, with much happier endings. It is incumbent on a society as wealthy and caring as ours to find a way of reliably funding the vital work of CLCs — and the good thing is, we know how to do this because we have done similar things before.

A better way

The idea of creating a statutory fund separated from consolidated revenue to ensure a vital service is maintained is not new, and a perfect example is the way that Queensland’s building regulator, the Queensland Building and Construction Commission (QBCC), is funded. The QBCC is almost entirely funded by licence fee revenue and the interest on the insurance fund, which is constituted by insurance premiums on insured building work; in short, it is not dependant in any way on consolidated revenue.

The downside to that is that the QBCC cannot simply ask for more money to operate — it must be lean and work within its budget; the upside is that the government cannot reduce its funding when looking to pay other bills or reduce debt. This creates a certainty of funding which means that the QBCC regulates the building industry in all economic conditions and regardless of the state of the Queensland budget.

If a similar fund were established for CLCs — and set up with sufficient capital and an ongoing revenue stream — in time the funding for CLCs would be removed from the government’s books altogether, and be self-sustaining even in down times. If that revenue stream were mandated by statute it would be harder for governments to divert it to other purposes.

As long as the initial fund was appropriately funded — for example, by utilising a one-year Medicare surcharge similar to that used to fund the Howard Government’s gun buyback scheme — and an ongoing revenue source was mandated (possibly by diverting a portion of monies confiscated as proceeds of crime) CLC funding would be ensured into the future and completely off the government’s books. A vital service would be guaranteed and our most vulnerable people would be assured the ability to access and assert their legal and human rights.

Whatever funding model is adopted, however, one thing is clear — begging for crumbs from consolidated revenue is not viable. As long as the government can turn the tap on or off based on what is popular or politically prudent at a given time, we will continue to play chicken with CLC funding in the same way that the United States regularly courts financial disaster with its debt ceiling — and that way madness lies.

Queensland Law Society president Christine Smyth noted recently that, while we have avoided going over the funding cliff, we remain standing on the edge — not a smart place to be. We can now be sure that the government has heard Oliver’s tremulous plea, but will it play Mr Bumble or Mr Brownlow?

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