Glanville, Louise --- "Community Legal Centres: Can CLCs advocate for themselves?" [1999] AltLawJl 27; (1999) 24(3) Alternative Law Journal 154

The Government recognises that community legal centres’ close links to their communities are an important part of their effectiveness and accessibility.[5]

These statements suggest that there is a crucial connection between CLCs and their communities and that this concept of community leads to a ‘common identity’ as a consequence of such factors as geographical location, issue of interest, shared class or gender, shared experience or other such matters.[6]

It is my contention that communities are comprised of citizens rather than consumers, of individuals who can potentially exercise civil, political and social rights to achieve particular ends. And that it is this form of participation, not participation as a customer or a consumer, that enables CLCs to develop unique connections with those they represent.

It is also this form of participation which can potentially locate CLCs in an influential position at the margins of the legal system. This would be one way of guarding against the continuing co-option of CLCs, as identified by Noone in her article on the ‘mid-life crisis’ of CLCs, in which she states that there is a danger of placing at risk the ‘sense of political purpose and ... innovative tendencies’ of CLCs by such co-option.[7]

The support and active involvement of both citizens and communities connected to CLCs should be a key focus of any activity which is seeking to consolidate the position of CLCs generally. While this may be seen by some as stating the obvious, the tendency in times of significant change and crisis may well be for organisations to focus inward to ensure a continued existence, rather than reaching outward for a survival which is meaningful in the context of the rights and expectations of citizens and communities. Indeed, and this is a personal view, if the latter is not possible then the former may well be a very inadequate alternative that is not worth the energy of pursuit. Survival at any cost is not necessarily the answer.

CLCs, competition and the economic rationalist agenda

Considerable evidence now exists to question whether competition, in every instance, will lead to lower cost and better quality outcomes for individuals, communities and society at large.[8] This is particularly the case with human services, such as CLCs, and may be a consequence of some of the following features:[9]

•	Services are often personal and individual and generally involve direct interaction between service provider and recipient; there is often an ongoing relationship established and hence continuity of service provision is important.
•	They deal regularly with sensitive areas of peoples’ lives, and where people may feel particularly vulnerable. This necessitates the provision of particular ‘service guarantees’ in relation to matters like confidentiality, respect, fair treatment and non-discrimination.
•	People are part of the process. This has implications for the design and delivery of services: the issues involved are not merely technical but value-laden; service users are active agents, they form an important part of the input and the end product and hence have a right to be consulted and to participate more broadly.
•	Activities are often relatively unpredictable, non-routine; requiring individual judgement, flexibility, adaptability and the use of discretion on the part of the service provider. These factors present particular challenges in the task of the drawing up of contract specifications in a competitive environment.
•	The individual transactions/exchanges that make up a service are sometimes difficult to isolate and define as discrete units and hence present difficulties for quantification and the attribution of cost (for the purposes of unit costing).
•	Determining an unambiguous service–service user relationship can be complicated and unclear; as for example in community legal education projects and in law reform activities.
•	The extent of ‘co-production’ and joint production, that is, the contribution of the user or others to the service system, is often strong.
•	The nature of the ‘product’ means that service performance criteria and measures are complex and multi-dimensional; and as such will require a substantially qualitative, as well as a quantitative dimension. This will add an additional layer of difficulty to the critical task of monitoring.
•	Human service outcomes can be invisible, intangible, imprecise, indeterminate and not apparent over the short term — so how can they be adequately measured (particularly in a policy context dominated by a focus on immediate cost-benefit)?
•	Equity principles are central to the formulation of policy and to the provision of services, education and advocacy activities.

Some of these features could be used to develop thinking around the ‘public benefit test’ under National Competition Policy in the context of CLCs. This test has received limited attention in terms of its practical application even though it was referred to, at least in part, in Professor Hilmer’s original 1993 report:

The promotion of competition will often be consistent with a range of other social goals, including the empowerment of consumers. However, there may be situations where competition, although consistent with efficiency objectives and in the interests of the community as a whole, is regarded as inconsistent with some other social objectives.[10]

Furthermore, the National Competition Council, in its 1996 report on the public interest, stated that there was a capacity to modify market testing regimes to take account of broader social objectives.[11]

CLCs are ideally placed to explore the concept of public benefit in greater detail. This activity would make a significant contribution not only to the future of the CLC movement itself but to our analysis of competition policy and the public interest more broadly. This approach may also enhance CLCs capacity to take some control of the economic rationalist agenda that may clearly not be in the best interests of CLCs if a competitive regime is advocated at all costs. In other words, while perhaps ambitious in light of the ‘reform’ experiences of other sectors, CLCs could attempt to define or set the agenda, in part around the relevance of the public benefit test to its own activities, be these direct service, legal education or law reform.

Conclusion

CLCs must not become impotent within the threatening environment in which they now find themselves and I have suggested several strategies in this vein. They must remember their capacity, demonstrated time and time again over the past 25 years, to challenge the status quo and to use both political and legal processes to effect change. Most importantly, they must not become alienated from the communities out of which they have grown, or to which they are connected.

References

---

[1] Finlay, S., ‘Order to Release Prison Contracts’, Age, 21 May 1999, p.2; see (1999) 81 FoI Review for a summary of the VCAT decision (published by LSB Co-op Ltd, tel [phone]).
[2] In this context, the status quo could be defined as the primacy which is currently given to ‘commercial-in confidence’ contracts over the interests of democracy and open government. For further consideration of this see chapters 8 and 9 in P.D. Finn, Essays on Law and Government, Volume 1, Principles and Values, Law Book Company, 1995.

[3] Ernst, J. and Glanville, L., Teaching resources developed for the Victoria University of Technology Bachelor of Social Work, Melbourne, 1994.
[4] Keating, P., One Nation Statement, AGPS, 1993.
[5] Commonwealth Government, Justice Statement, May 1995 , p.109.
[6] Kenny, S., Developing Communities for the Future: Community Development in Australia, Nelson, 1994, p.32.
[7] Noone, M. A., ‘Mid-Life Crisis. Australian Community Legal Centres’[1997] AltLawJl 8; , (1997) 22(1) Alternative Law Journal 25-29.
[8] See, for example, Hodge, G., Contracting and Government Services: A Review of International Evidence, Montach, Melbourne; National Competition Council, National Competition Policy: Some Impacts on Society and the Economy, 1999; Escott, K. and Whitfield, D., The Gender Impact of CCT in Local Government, Equal Opportunity Commission, Manchester, 1995.
[9] Ernst, J., Glanville, L., Herbert, B. and Williams, M., Contesting Quality!, Developing a Value Driven Approach to Compulsory Competitive Tendering and Contracting Out, VUT, Outer Urban Research and Policy Unit, 1994.
[10] Report of the Independent Committee of Inquiry, National Competition Policy, AGPS, 1993, p.5.
[11] National Competition Council, 1996, Considering the Public Interest under the National Competition Policy, p.16.