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Samantha Burchell and Emma Hunt[*]
PILCH, now in its ninth year, has significantly shaped the public interest pro bono work of the Victorian legal profession.
The Public Interest Law Clearing House in Victoria (PILCH) occupies a small office in central Melbourne. It is staffed by a handful of lawyers and para legals, supported by numerous volunteers. It aims to help others who require it to find lawyers to work pro bono; or in other words, for free. Often the clients that PILCH assists are those who through misfortune, circumstance or injustice find themselves in need. Generally they are excluded from effective participation in the legal system. Without assistance they are unlikely to know or assert their rights.
The pro bono legal assistance provided by PILCH also aims to serve the public interest. That is, it is intended to have the potential to affect or impact on a significant number of people, particularly those who are disadvantaged or marginalised.
This article examines the establishment of PILCH, which revolutionalised the way in which pro bono legal assistance is administered in Victoria. It considers the impetus for its inception, and how the changing focus of PILCH reflects its contemporary social context. It also reflects upon the role of PILCH in developing the nature and direction of the public interest pro bono work of the Victorian legal profession.
When the then Chief Justice of the High Court of Australia, Sir Anthony Mason, officially launched PILCH in 1994, he spoke of the emergence of the organisation primarily as a response to a need and desire to improve access to justice.[1] Sir Anthony also identified two ‘subsidiary purposes’ for PILCH. The first was to provide an avenue by which lawyers could help recover the professional ideals of ‘dedication to standards of professional excellence and to the service of the public’ and counter the tarnished public perception of the profession that had concerned itself principally with commercialism. The second, was the ‘taking up of public interest cases’ as a means of protecting and promoting the interests of particular classes or sections of the community. In so doing ‘the law and lawyers have a fundamental part to play in enhancing the quality of our public life and the workings of our democratic form of government’, his Honour said.[2]
These goals of improving access to justice and commitment to professionalism were not exceptional. However, almost a decade ago, the involvement of lawyers in private practice in public interest work was an innovative and curious idea. Until then, the practice of public interest law had generally been confined to lawyers working in legal aid services and community legal centres (CLCs).
In 1994, even the most visionary could not have foreseen the role PILCH would ultimately play in galvanising the private legal profession, which had traditionally been characterised by conservatism, to become involved in public interest pro bono work. Then it would have been unrealistic to envisage that lawyers in private practice, particularly in commercial law firms or even corporate legal departments, would regularly involve themselves, without expectation of fee, in legal matters that were political, controversial, unpopular and which have the potential to divide the community. Nor would it have been contemplated that through involvement in public interest work a number of private legal practitioners would be seen in some quarters as ‘agitators’, ‘activists’ or even, in the words of the current Federal Attorney General, ‘promoting unlawful activity’.[3]
PILCH, and before it the Public Interest Law Clearing House in NSW (PILCH NSW) were modelled on an organisation founded in the mid 1970s in the United States known as the New York Lawyers for the Public Interest (NYLPI). NYLPI emerged from a period in American history in the 1960s and early 1970s marked by the civil rights movement and the anti-Vietnam War movement.[4] This era saw previously marginalised sectors of American society, such as racial and ethnic minorities, women and the poor, have their interests and rights addressed.
NYLPI is a partnership that combines the pro bono activities of major law firms and corporate legal departments with a public interest practice staffed by NYLPI lawyers. It is based on a concept of membership, with members committed to handle pro bono projects referred through NYLPI and to support the organisation financially by paying an annual membership fee. Aside from directly representing some clients, NYLPI performs a ‘clearinghouse’ function that recruits, screens and refers requests for pro bono legal assistance to member law firms and corporate legal departments. The matters referred encompass a broad range of clients, issues and legal work and involve both litigious and non-litigious matters.[5]
Leaving aside the direct delivery of legal services by staff lawyers and taking into account a few idiosyncratic local differences, the above description of the ‘clearinghouse’ could equally apply to the core referral service of PILCH.
Similarly, a retrospective assessment made in 1999 of the founding of NYLPI by its Executive Director, Joan Vermeulen, could be just as applicable to PILCH (and equally to PILCH NSW and the more recently established QPILCH in Queensland):
… NYLPI’s approach was innovative. For the first time, in a systematic and effective manner, pro bono work was being screened and referred to major law firms. The work was being done by the firms, not by individual attorneys on their own time. It was not perceived as a matter of noblesse oblige and individual interest, but rather as a responsibility of the profession. In time, pro bono work would come to be seen as an essential component of the legal delivery system for low income people.[6]
PILCH began as a project of the Consumer Law Centre Victoria (CLCV), with support from Fitzroy Legal Service and six Melbourne law firms.[7] It aimed to mirror the model of PILCH NSW established by the Public Interest Advocacy Centre in NSW several years earlier. PILCH NSW had in turn been inspired and modelled on NYLPI.
At the beginning, although separately incorporated, PILCH was managed by CLCV. A membership model was adopted, but early membership fees were minimal (perhaps suggesting a cautiousness about requiring firms both to financially support the organisation and to undertake referrals on a pro bono basis). Until 2000, PILCH’s main source of financial support was from the Victoria Law Foundation (VLF) with supplementary financial support from CLCV.
The relationship with CLCV (and to a lesser extent Fitzroy Legal Service) had distinct benefits. It ensured the involvement of CLCs and created a partnership between the CLC sector and private law firms. On a practical level PILCH was provided with accommodation, infrastructure and management services.
In late 1999, PILCH’s relationship with CLCV came to an end. PILCH had grown and matured, and was effectively functioning as an independent organisation. The management agreement with CLCV concluded amicably and PILCH sought premises of its own.
The next couple of years were marked by contradictory influences. On the one hand, PILCH faced rapid development and expansion and increased demand for its services. On the other hand, it encountered considerable financial insecurity, with the VLF finally ceasing its progressively reducing financial support. It was at once both an exciting and troubling time.
Now as PILCH heads into its ninth year it has a membership of 39, principally comprised of law firms, the Victorian Bar, corporate legal departments, CLCs and university law schools. Its core public interest pro bono referral service is wholly financially supported by its members. Significantly, it also administers the other two major pro bono legal referral services in Victoria; namely, the Law Institute of Victoria Legal Assistance Scheme and the Victorian Bar Legal Assistance Scheme, and in doing so receives financial support from those two professional organisations. These schemes differ from the PILCH referral service in that matters need not meet a public interest criterion. PILCH also conducts the Homeless Persons’ Legal Clinic (discussed more fully below). In addition, it carries on diverse projects aimed at encouraging, fostering and supporting the pro bono work of the private legal profession in public interest law. Projects include running student Fellowship, intern and volunteer programs, the production of regular publications and involvement in continuing legal education.
Unlike the New York experience, PILCH did not have its genesis in a distinct and turbulent period in history. Nonetheless, social and political factors provided the initial impetus for its formation and influenced its focus.
PILCH emerged in the context of a community debate on access to justice. This debate was manifested in the 1994 Report of the federal government appointed Access to Justice Advisory Committee, Access to Justice: An Action Plan,[8]and followed by the Access to Justice Forum in Canberra in the same year. The PILCH model of operation was a practical response to this debate.
While responding to the need to improve access to the legal system, from the beginning PILCH had the delicate task of defining its role. In so doing, it has often had to contend with sometimes contradictory considerations.
Amongst these considerations is the ongoing desire not to relieve governments, federal and state, of their obligation to provide access to the legal system by properly funding legal aid services. Related to this has been the intention for PILCH to complement rather than compete with or encroach on the role of legal aid and CLCs.
Despite these intentions, PILCH’s emergence coincided with a marked decline in legal aid funding and services, driven by the economic rationalist approach of government policy at the time. This significant factor would impact on the need for pro bono services. A study by the Law Council of Australia of the period immediately preceding the establishment of PILCH, indicated that from 1987–88 to 1992–93 there was both a restriction in funding and a tightening of legal aid criteria, to counter a substantial increase in the demands on legal aid services over the same period.[9]
In particular, in Victoria in 1992 the then Attorney General, Jan Wade, announced considerable changes to the funding of services offered by Victoria Legal Aid (VLA). As a result of these funding cuts, VLA amended its guidelines for assistance, in particular to provide for very limited aid in civil matters, which are, not inconsequentially, often against government.
In addition, publicly funded CLCs were becoming less inclined to take on complex civil litigation, a fact that reflects their diminishing resources and the impact of several periods of review.
PILCH’s response to the above considerations has been to assist only clients not otherwise eligible for legal aid, to focus mainly on areas of civil law and to distinguish its pro bono referral service by its public interest criterion.
For clients the arrival of PILCH saw a more organised and less ad hoc approach to public interest pro bono work. For individuals and organisations alike there was new accessibility to high quality and well resourced pro bono legal services.
Other than in the 2000 calendar year, the majority of PILCH’s clients have been not for profit community organisations, which generally outnumber individuals by approximately two to one. To be eligible for assistance PILCH has required that these organisations demonstrate public interest objectives. In this way the public interest criterion of the scheme is met and the resources of the organisation are not diverted from carrying out its aims.
Public interest organisations most often require non-litigious, commercially oriented legal services. This is generally the drafting of documents or transactional or advice work in areas such as tax, property and corporate law. Such services are not, and will never be, provided by legal aid or CLCs.
For the lawyers who provide these services (in most cases those in commercial law firms) pro bono work of this nature helps fulfill a professional aspiration or obligation. It also provides a valuable service to the community and gives the lawyers involved an opportunity to undertake socially useful work.
Pro bono work for public interest organisations also represents a safe or cautious and, some would say, conservative approach. It is an extension of the pro bono activities historically performed by lawyers in private practice. Traditionally it is not unusual for individual lawyers to undertake community service activities or to establish relationships with, and provide services to, charities or community organisations. But despite a willingness of some law firms to extend the provision of these services by their employees, most firms do not have access to or well-established contact with diverse community sector networks. Before PILCH, this limited the opportunities for firms to provide their services to community- based clients and to expand their pro bono programs to do more such work. PILCH provided both a referral service and an avenue for ‘client development in the community sector’.[10]
As to the nature of the work, more often than not it falls within the usual areas of practice and expertise for commercial law firms and is of the type already provided on a daily basis. Generally it is non-controversial and has a more predictable and containable quality than litigation, with no potential for costs ramifications. Such work is unlikely to give rise to conflicts of interest. It also provides an avenue for lawyers not practising in litigious areas to nonetheless participate in pro bono activities.
Public interest litigation comprises only a relatively small proportion of the pro bono work undertaken by PILCH members. But it is an important part. Some would argue that litigation of this nature is potentially more challenging, visible, politicised and controversial than technically oriented transactional and advice work. The latter aims to indirectly serve the public interest by playing a supportive role in advancing the objectives of the public interest organisation. It is the objectives of the client that establish the nexus with the public interest. In contrast, public interest litigation is generally motivated by a desire to have a direct impact both through the remedy sought for the individual and beyond for a sector of the community. It is principally the nature of the legal issue that gives the litigation its public interest quality. At its most ambitious public interest litigation aims to use the courts to challenge the status quo and effect social change.
Over the years the public interest litigation carried out by PILCH members has been largely a legal response to major social movements, political issues or current events. As time has gone on, particular cases have suggested that the responses have become progressively more creative and courageous, with members demonstrating a preparedness to work on social justice or human rights matters, unpopular causes or issues of a politicised nature. For instance, in 1995 a major current issue in Victoria was the widespread installation of gaming machines, and PILCH was involved in several cases disputing the installation of these machines in shopping centres. In 1998, the ‘Stolen Generation’ and indigenous issues dominated referrals. The 2000 calendar year saw a legal challenge to mass DNA sampling of prison inmates. Since 2001 and the rescue of asylum seekers by the MV Tampa, PILCH has been very involved in organising representation for detained asylum seekers.
Indeed, in its short history the ultimate ’coming of age’ for PILCH, was the now historic Tampa case.[11] It is an example of creative and fearless public interest litigation by lawyers in private practice. The story of the case warrants revisiting to analyse its place and influence in the development of public interest pro bono work in Australia.
Tampa has become a benchmark in public interest litigation. The background to the case is now well known. It involved urgent and dramatic proceedings commenced on 31 August 2001 in the Federal Court of Australia by the Victorian Council for Civil Liberties (Liberty Victoria) and Mr Eric Vadarlis seeking to compel the release and delivery onto Australian soil of the 433 asylum seekers detained by the Commonwealth on the Norwegian vessel, MV Tampa. The applicants were successful at first instance before North J, but lost on appeal in the Full Court comprising Black CJ (dissenting) and Beaumont and French JJ. PILCH’s involvement in the case initially was to attempt to contact the asylum seekers detained and held incommunicado aboard the vessel. When PILCH was unsuccessful, Liberty Victoria assumed the role of applicant seeking orders in the nature of habeus corpus and mandamus. PILCH also assembled the legal team, comprising a Melbourne commercial law firm and senior and junior counsel, to act on a pro bono basis on behalf of Liberty Victoria.
Despite the ultimate legal loss, the impact of the Tampa litigation was profound. The issues underlying the case divided the community. Striking were the roles of the lawyers, and how they were perceived both within the legal profession and more broadly. ‘How much money do you make out of defending these worthless scum?’, senior counsel was asked by a member of the public.[12] On another occasion it was ‘[w]hy don’t you and all of your tree-hugging, libertarian, do-gooder, wanker buddies go to Afghanistan and practise your law?’[13] In contrast, his Honour Justice French (one of the judges in the majority in the Full Court) characterised the lawyers as ‘acting according to the highest ideals of the law’ and of ‘[serving] the rule of law and so the whole community’.[14] On both counts the perceptions were a dramatic contradiction to the usual popular image of lawyers as conservative, mercenary, and selfish.
The actions of the lawyers were bold. Amongst other things, these were proceedings against the highest echelons of government. They involved a challenge to executive power to ensure the lawful exercise of discretion and concerned conspicuous and controversial government policy. The issues were highly politicised, as the events unfolded in the weeks leading up to a federal election campaign. The federal government’s actions and the subsequent case attracted widespread attention and criticism in Australia and internationally.
The litigation strategy itself was fraught with difficulties. The case was brought in a atmosphere of extreme urgency. There was no time for careful planning. It was impossible to make contact with the vessel, let alone any of the asylum seekers aboard it to get instructions and determine if any were prepared to act as applicants. It became necessary to find another client prepared to act as the applicant and to bear the risks. Not inconsequentially, the costs ramifications were potentially devastating. There was every possibility that an order for costs of enormous proportions could be made against the applicants, or even their legal representatives.
So what did Tampa ‘achieve’? It certainly did not get the 433 asylum seekers brought to the Australian mainland. It did not appear to cause any direct social change, nor even change government policy, for instance, about the mandatory detention of asylum seekers in Australia. Ironically, it may even have contributed to the government’s hasty implementation of its planned ‘Pacific solution’, which saw the Tampa asylum seekers and subsequently others being sent to destinations outside Australia, including New Zealand, Nauru and Papua New Guinea. However, it did serve to challenge the actions of a government that appeared to be acting with impunity, riding roughshod over people’s rights and liberties, and held it accountable for its actions. It did focus the attention of the government and the public on the issue in a way that had not previously been done through the political process. It raised the plight of asylum seekers to new levels of openness and debate. Indirectly, it gave the asylum seekers a voice and a visibility that until then had been carefully expunged by the authorities. The case was a mobiliser. Subsequently, it has brought together people who want to help, who want to do something to counter the injustices that continue to be perpetrated against people held in detention in Australia.[15] It threw out a challenge for otherwise conservative lawyers to become activists.
But the case also clearly demonstrates the frustrations and limitations of litigation-based strategies in public interest pro bono work. Such cases are often emotionally and financially draining. They are frequently protracted and the outcomes uncertain. The courts are constrained by the system in which they operate. Without broader public or political support for the goals of the litigation, the litigation in no way guarantees bringing about a transformation of government policy or social change.
Nonetheless we do not doubt that if appropriate facts and circumstances arose again, the same would be done again. As one member of PILCH remarked, ‘[it] would be wonderful if every case were a Tampa’. But involvement in a case like Tampa may come along only once in a professional lifetime. There are large numbers of lawyers in private practice who want to do more on a regular basis. There is a hunger for public interest work that is interesting, challenging, even confronting and political, and involves direct contact with ‘real’ people. There is also a desire to see an outcome or a challenge to the status quo, not just on a micro level for individual clients, but also on a larger scale. Hence the impetus for PILCH to take public interest pro bono work in another direction again.
The PILCH Homeless Persons’ Legal Clinic (HPLC) was established in October 2001 as a joint project between PILCH and the Council to Homeless Persons. On an ongoing weekly basis, the HPLC provides the services of lawyers from PILCH member law firms and corporate legal departments at crisis accommodation services and welfare agencies frequented by homeless people. PILCH employs a Co-ordinator, organises training for participating lawyers and, when necessary, operates as an ongoing point of contact for clients.
Principally the HPLC provides pro bono legal assistance in the form of advice, casework and advocacy for individuals. In addition, as systemic issues emerge it undertakes relevant law and policy reform work using the considerable resources of law firms.[16] As part of its law reform work, the HPLC seeks effective ways to communicate directly with law makers and government to lobby and advocate on behalf of the community it aims to serve.
The HPLC does not represent a move away from the provision of transactional and advice work or public interest litigation undertaken pro bono by lawyers in private practice. But it does demonstrate a new strategy; a new way of working for a disenfranchised and disadvantaged sector of the community. In this case the community is not one defined by locality but rather by elements of common circumstance. The HPLC incorporates well-established forms of public interest work, and introduces some others, into a new co-operative and proactive approach.
The HPLC grew out of an awareness that lawyers could better connect with the communities they seek to assist. PILCH knew both from the American experience and from discussion with its members and wider networks that law firms and their employees are seeking ways to expand and diversify their pro bono practices while simultaneously providing opportunities for professionally challenging and satisfying work. Homeless people were identified as a client group whose needs were not being adequately met by legal aid, CLCs or existing pro bono services.
The HPLC is a creative way for PILCH to more directly serve and work with the community, garner the pro bono legal services and resources available to it and to provide the types of public interest opportunities sought by lawyers.
Symbolically PILCH will celebrate its tenth anniversary in about 18 months time. It will provide an occasion to thank those who had the vision to establish PILCH. Hopefully also it will be an opportunity to reflect on ten years of growth, survival, change and consolidation.
To date PILCH has helped shape the public interest pro bono work of the Victorian legal profession. It has seen lawyers increase their commitment. It has helped their pro bono efforts to become more organised and services more accessible. It has brokered relationships and assisted lawyers engage with and serve the community, particularly in some of its most needy sectors. PILCH has played a role in making pro bono work and public interest law accepted areas of mainstream private legal practice and in encouraging lawyers to become more activist.
What has become apparent over the years is that PILCH is not a static organisation. Its aims and priorities are constantly changing. New needs and demands present themselves. Challenges are constantly been thrown out and embraced. It is important that PILCH shapes new themes and directions for the future, so that it can continue to drive the momentum that has gathered in public interest pro bono work in Victoria.
So it is that ten years will mark a milestone, not an end.
[*] Samantha Burchell and Emma Hunt are Co-Executive Directors of the Public Interest Law Clearing House (Victoria) Inc.email: pilch@vicbar.com.auThe authors wish to acknowledge and thank Alexandra Farrar and Emily Anderson who, while participating in the PILCH Fellowship Program, undertook research for this article.© 2003 Samantha Burchell and Emma Hunt (text)
[1] Mason, The Honourable Sir Anthony, address delivered at the launch of PILCH, 16 September 1994.
[2] See above, ref 1.
[3] ABC Radio Melbourne, transcript of interview between Jon Faine and the Hon. Daryl Williams, 23 October 2001.
[4] New York Lawyers for the Public Interest, ‘New York Lawyers for the Public Interest: Celebrating 15 years’, 1991, p.2.
[5] New York Lawyers for the Public Interest, above, pp.6-9.
[6] Vermeulen, J., ‘Public Interest, Private Lawyers: The New York Experience’, New York Lawyers for the Public Interest, 28 April 1999.
[7] Consumer Law Centre Victoria, ‘Public Interest Law Clearing House in Victoria: Application for funding to the Victoria Law Foundation’, May 1994, p.2.
[8] Access to Justice Advisory Committee, Access to Justice: An Action Plan, AGPS, 1994.
[9] Law Council of Australia, ‘Legal Aid Funding in the ‘90s’, 1994, quoted at <http://www.naclc.org.au/intro.html> .
[10] Consumer Law Centre Victoria, above, ref 7, p.3.
[11] Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; Ruddock v Vadarlis [2001] FCA 1329.
[12] Australian, 4 September 2001, p.6.
[13] See above, ref 12.
[14] Ruddock v Vadarlis, above, para 216.
[15] By way of example, individuals and organisations have come together to contribute to submissions made to the Human Rights and Equal Opportunity Commission inquiry into children in immigration detention. Organisations or networks such as ‘Spare Lawyers for Refugees’ and ‘Australians for Just Refugee Programs’ have also been established post Tampa.
[16] Since October 2001 the HPLC has undertaken law reform projects including: Preparation of submissions regarding reform of the Commonwealth Electoral Act 1918 (Cth), the Vagrancy Act 1966 (Vic) and the Equal Opportunity Act 1995 (Vic); and Involvement in the ‘Enforcement Review Project’ coordinated by the Department of Justice and the Magistrates’ Court, and ‘Communities Against the Pokie Plague’, a coalition of organisations advocating for reform of the gambling industry.
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