Law reform is a 'frontline service'

Integrated frontline services

Under the Legal Profession Act 2007 (Qld) ('LPA'), the Minister may approve grants for the purpose, amongst other things, of 'the advancement of law reform.' Grants come from the Legal Practitioner Interest on Trust Accounts Fund ('LPITAF'). In 2012 the Attorney-General ordered a review of the application of these funds ('LPITAF Review'). The focus of the review was the alignment of fund distribution with the government's strategic objectives of 'front line' service delivery.

On 26 November, the Queensland government introduced the Justice and Other Legislation Amendment Bill 2014 ('Bill'). The omnibus bill seeks to amend over 30 Acts including s289(1)(h) of the LPA - the provision for grants to advance law reform. Instead, the proposal is that funds may be applied under this subsection only for the purpose of:

facilitating access to the legal system, legal information and education and legal services for members of the community, particularly economically or socially disadvantaged members of the community.

This captures many of the previous purposes of the grants, but not the advancement of law reform.  The Bill states that this amendment

reflect[s] changes as a result of the implementation of recommendations resulting from the Review of the Allocation of Funds from the Legal Practitioner Interest on Trust Accounts Fund

The LPITAF Review, however, did not recommend removing law reform from the purview of the fund. Even if it did so, this amendment ignores substantial evidence about the strategic nature of investment in law reform work in the efficient and effective delivery of justice, particularly to economically and socially disadvantaged members of the community.

In other words, the proposed amendment directly contradicts the government's stated strategic objectives. This proposed amendment should be rejected.

Law reform is a 'frontline service'

Community Legal Services NSW has recently published a report providing evidence as to the public value of community legal centres' (CLCs) engagement in the advancement of law reform. The report commences:

Community legal centres...have historically undertaken policy and law reform as part of an integrated suite of services designed to meet the legal needs of those disadvantaged socially and economically, and to improve access to the legal system and to justice for such individuals and groups. (emphasis added)

It establishes that 'law reform and systemic advocacy activities were a more efficient use of resources than case work alone.' While the report distinguishes between 'frontline legal services' and law reform, it presents the two as part of the integrated services of a CLC to achieve the desired outcomes of 'equitable access to the legal system and...to justice, ...cost efficiency and the...scale of benefits to the community.' This aspect of community legal work has been omitted from the consideration of the LPITAF Review proposed in the Bill.

The frame of thought surrounding the LPITAF Review and therefore the proposed amendments, has been based upon 'frontline services', or services delivered directly to Queenslanders. Omitting law reform activities therefore seems to have been distinguished from 'case work'. There is however an important way in which law reform work is frontline legal service.

Clients of CLCs, principally those who are socially or economically disadvantaged, are less likely to have their voices heard than others who are better able to lobby or advocate for their positions. This is reflected in the LPITAF Review which identifies 'high prevalence vulnerable client groups' who are likely to require specialist legal services and who may suffer complex legal problems.

Complex legal problems experienced by such groups often arise as a consequence of the operation of the law or the justice system itself. In this case, the best and most efficient way to meet their legal needs is through advancing law reform. Law reform may occur through a test case, through singular advocacy or through contribution to a broader debate around the law in question. In each case, advancing law reform is a frontline service to the clients involved.

In private sector delivery of legal services, clients are free to retain their lawyers to advocate on their behalf - including in advancing law reform. This has occurred notably in the case of asbestos regulation. All legal advocacy is law reform in one way or another, and is therefore integral to the delivery of frontline legal services. A system that denies this aspect of frontline delivery to clients who suffer social and economic disadvantage is failing in the administration of justice.

Examples of Advocacy

There are many examples of laws that have been reformed as a response to advocacy by the community legal sector - enhancing access to justice and an improved and responsive legal system. The expertise of the sector, and notably of specialist service providers as acknowledged in the LPITAF Review, is a vital resource of data on the efficacy of existing laws and the operation of the legal system.

For example in 1993, Zoe Rathus of the Women's Legal Service Queensland, authored the seminal report Rougher than Usual Handling: Women and the Criminal Justice System. Based on the knowledge of women's experiences before the law accrued from experience in the community legal sector, this report made an invaluable contribution to the reform of Queensland criminal law.

The community legal sector in Queensland has advocated in numerous other contexts, including:

• successfully arguing that a person who had suffered from domestic violence at the hands of their partner should not be treated as part of a couple in relation to their social security payments;
• the introduction of the Domestic Violence (Family Protection) Act 1989;
• changes to the Coroners Act, to allow Coroners to investigate systemic issues, including the requirement that any death in an institution be investigated;
• actively advocating for police to investigate various criminal acts going on in hostels, including suspicious deaths, theft, torture and people being forced to work and being used as sex slaves;
• submissions to various inquiries associated with the Queensland floods, resulting in recommendations to improve consumer protection in relation to insurance;
• (see also examples cited in Productivity Commission Report, p710).

Law reform is access to justice

Advancing law reform is recognised as a cost effective way of delivering access to justice. The recent Productivity Commission Report on Access to Justice identifies that 'legal assistance lawyers...are uniquely placed to identify systemic issues, particularly those affecting disadvantaged Australians' (see section 21.1). This provides an efficient means, through broad advocacy, to deliver frontline legal services to groups of people.

While the LPITAF Review identifies the importance of ongoing delivery of legal advice and case work, the Productivity Commission observes that there is not always sufficient funding to support individual representation for all cases that come before legal services. In this respect, advocacy and advancing law reform complements other forms of frontline service and 'stretches the funding dollar'.

Relationship with Department of Justice and Attorney General ('DJAG')

The LPITAF Review identifies the importance of maintaining excellent working relationship between the community legal sector and DJAG, including the application of LPITAF to that end. Indeed the Review is premised on the DJAG having access to information about 'geographical gaps and evidence about where service is needed.' This is predicated upon the advocacy and advancement of law reform of the community legal sector. This acknowledged role of the sector and the application of the LPITAF validates the advancement of law reform as a strategic objective implicit in the Review's recommendations.

Through the aggregation of their experiences and collaborative state-wide approach, the community legal sector is well placed to alert government to unmet needs in the community and how they can best be met. To the extent that this involves contribution to a broader discussion about advancing law reform to meet such community need, this is a frontline service. It aligns directly with the strategic objectives of the DJAG and the Queensland government.

Summary

The proposed amendment to s289(h)(1) of the Legal Profession Act 2007 (Qld) should be withdrawn because the advancement of law reform:

• is a frontline legal service
• aligns with the government's strategic objectives 
• aligns with the objectives of the DJAG
• is not precluded by the LPITAF Review
• supports the LPITAF Review recommendations
• enhances access to justice
• is an efficient application of funding to support access to justice

Can you offer other examples of effective frontline law reform?

You can make a submission to the Queensland Parliament Legal Affairs and Community Safety Committee. Submissions close on 2 January 2015.