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Mark Rix[*]
New public management (NPM) strategies have been used in Australia by the Commonwealth Government (and all of the state and two territory governments) not only to manage the public sector and administer the services it directly provides, but also to define and underpin the relationship between government and citizens. This relationship is often mediated through community organisations, particularly, but by no means exclusively, those in the welfare sector.
As governments have outsourced the services they were once regarded as obligated to provide to citizens, so have community organisations developed into key service providers. However, taking on this role has put these organisations in an invidious position with respect to the communities they serve. While serving the community is the very reason-for-being of community organisations, many rely almost exclusively on government funding in order to fulfill this role. The service agreements with government that prescribe the funding and governance arrangements under which community organisations operate, impose performance standards that follow the NPM agenda and accordingly emphasise cost cutting and efficiency. Thus, citizens are transformed into consumers of services that are directly provided by community organisations but which are at the same time almost totally funded by government. This funding severely constrains how effectively these organisations are able to serve their communities, especially in terms of the amounts of money they actually receive from government and the regulatory and administrative practices they are compelled to adopt as a condition of government financial support. Under these circumstances, community organisations not only become unwilling agents of government policy but by being forced to follow the NPM agenda these organisations also play an important part in redefining citizens as consumers whose rights are thus narrowly defined, even as they seek to enforce, defend and extend citizen rights. As citizens are recast as consumers, and community organisations as agents of government, so is the government itself transformed into a mere funding and regulatory authority having the duties and obligations to match.
This article considers these issues in the light of the experience over the past decade or so of community legal centres (CLCs). By examining this experience, the article explores the implications for democratic institutions and practices of the changing relationship between government and citizenry wrought by NPM. It also investigates the implications for CLCs of being transformed into agents of government policy. Of particular concern will be the difficulties and tensions faced by CLCs in enforcing and defending the legal rights of citizens while they act in effect as agents of the government as it seeks to curtail these fundamental citizen rights by redefining citizens as consumers. Finally, the article considers the growth over recent years in pro bono work, which is an integral part of the Commonwealth Government's NPM agenda. It will analyse how this has affected relationships between government and citizens and how it has affected the role and integrity of CLCs.
As is well known in the sector, community legal centres (CLCs) have for some time been put in the uncomfortable position of having to accept clients for whom under-funded legal aid commissions (LACs) have not had the resources to provide support or assistance. This has occurred at the same time as CLCs' own client base has seen rapid expansion stretching to breaking point their already derisory funding. The combination of an expanding client base and severely restricted government funding has resulted in a legal aid crisis.[1] Moreover, according to Melville, 'pro bono work provided to state Legal Aid Commissions is not keeping pace with increased client demand caused by funding shortfalls'.[2] However, as Camilleri points out, more generally 'the growth in pro bono over the last six years has been exponential'.[3] The implications of this exponential growth in pro bono work will be analysed in the following section. Suffice it to say here that, while this growth has been far from adequate in terms of the ability to meet increased client demand, it is part of the Commonwealth Government's agenda of outsourcing legal service delivery to the private sector. For, hopelessly inadequate funding for legal aid and CLCs and the rapid but stunted growth in pro bono work are two sides of the same NPM coin.
According to Noone, not only are CLCs now receiving some increased support and funding from government, 'in recent years CLCS have been embraced by government in an attempt to solve the "legal aid crisis"'.[4] The point, of course, is that this crisis was the outcome of sustained government funding cuts to state LACs, beginning in the late 1980s under the federal Labor government, continuing and becoming even more drastic with the election of the federal coalition government in 1996.[5] In addition to the funding cuts, in 1997 the coalition government decided that the legal aid funding it provided to the states could be used only for Commonwealth law matters. A 1994 Law Council study demonstrated that between 1987/88 and 1992/93 funding for legal aid had been severely restricted. At the same time, eligibility criteria for legal aid were tightened while the demand for legal services continued to grow.[6]
Subsequent to the release of the Law Council's survey, some small increases to funding for legal aid were granted.[7] However, these modest increases failed to address the problem of increased demand and shrinking services. An inquiry conducted by the Senate in the period 1996-1998 'confirmed that legal aid is available to an increasingly restricted and exceptionally small group of Australian citizens'.[8] While the Commonwealth Government relies more and more on CLCs to provide legal services to the most disadvantaged members of the Australian community, this has not been reflected in corresponding amounts of additional funding. Thus, at the same time as the Commonwealth has considerably tightened the funding and performance criteria under which CLCs operate, it has embraced legal centres in the sense of attempting to limit their autonomy and weaken their community links. In other words, it is trying to force CLCs to become government agencies (albeit, low-cost and under-resourced ones).
Evidence to support the contention that the Commonwealth regards CLCs as government agencies is found in the willingness of the Commonwealth to fund the establishment of new centres even in the absence of community involvement and consultation. While 'most CLCs still receive insufficient core funding (from state and Commonwealth sources combined) to enable them to employ the equivalent of three full time staff, the Commonwealth has given some small funding increases to CLCs.[9] Among other things, this has enabled eleven new centres to be established in regional and rural areas of Australia. This amounts to a complete about-face in the longstanding approach of the Commonwealth to the funding oflegal centres. According to Noone: '[p]reviously a CLC would only receive government funding after proving local support and involvement by operating as a voluntary service for a substantial period of time'.[10] The new approach is to allocate funds for installation of a CLC in a town or rural area where a need has been identified, and then to invite community participation and support. This clearly demonstrates that the Commonwealth no longer regards community participation and support as being integral to the integrity, operation, effectiveness and success of CLCs. It also demonstrates incontrovertibly that it regards CLCs as de facto government agencies.
Noone also claims that CLCs now 'live in harmony with the legal profession'. [11] Irrespective of whether this is generally the case or not, any harmony with the legal profession has come at some cost to legal centres, and it is closely related to the adoption of the NPM agenda by government. For, harmony has been imposed on legal centres as the Commonwealth, by encouraging pro bono work, increasingly turns from the community sector to the private sector to lower the costs and tighten control of legal service delivery. The changing relationship of CLCs with government and the private legal profession raises a number of issues that will be discussed and analysed in the next section.
The relationship between CLCs and government has become a much more problematic one as service delivery and funding models have increasingly been driven by the rationale of the NPM and the strategies to which it gives rise. Cost-cutting and efficiency are now to the fore in the delivery of public services, as are contracting out, increasing use of private and community or 'third sector' organisations in government service delivery, and new partnerships and associated purchaser/provider arrangements with these organisations. Together, these developments in effect relegate community organisations to little more than agencies of government. Indeed, the use ofCLCs as agencies of government is largely driven by cost considerations. CLCs provide services to the community at a much lower cost than could be achieved by government departments and agencies, with the added advantage that services can more effectively be targeted and tailored to the needs of individual communities. Such targeting and tailoring, however, take place only in accordance with the funding and performance criteria imposed by government. This gives rise to a number of very pressing concerns: how the exact nature of the relationship between government and the citizenry is to be conceived and defined; whether the rights that individuals once enjoyed as citizens have been usurped in favour of narrowly conceived individual consumer rights; and, whether government has effectively demoted itself to nothing more than a funding and regulatory authority. As a sole or major funding authority and through the 'partnerships' it establishes with community organisations like CLCs, government dictates the manner in which services are to be delivered to the community on its behalf. Government also largely determines the types and range of services to be offered, and the performance criteria and standards which these organisations must meet in order to qualify for continued funding. The service standards and performance criteria are enshrined in the service agreements that the Commonwealth makes with CLCs (in accordance with a national template).
According to Daryl Williams, the Federal Attorney General, '[p]rior to the introduction of service agreements in 1996-97, funds were provided to community legal services with very few accountability mechanisms'. [12] In Williams' view, not only were targets for service delivery not identified, management decisions were not based on strategic planning. However, service agreements have made CLCs much more accountable to the government. Moreover, the entire Commonwealth Community Legal Services Program is 'currently in transition from a grants based model to one that adopts the general framework of the purchaser/provider model', a move which Williams welcomes because he believes it also will raise the level of accountability and of government control. Not only do service agreements define the relationship between the Commonwealth and CLCs qua contracted organisations as one of a purchaser/provider sort, they have for Williams focused the energies of CLCs 'on what is best for the target client group-disadvantaged Australians'. He adds, '[n]ew program guidelines also reflect the shift in emphasis to client need, service delivery and accountability'. [13] By defining the core functions of CLCs, the Service Standards and Performance Indicators Project initiated by the Commonwealth in the late 1990s sought to develop standards and criteria that were appropriate to CLCs. The development and implementation of a new data collection and reporting system 'consistent with the outcomes/outputs framework [underpinned by accrual budgeting]' to assist in the 'planning and evaluation of service delivery' were an integral part of this Project. In other words, adoption of the purchaser/provider model was motivated predominantly by the desire of the Commonwealth Government more effectively to manage CLCs as government agencies.
As the AGD website points out, CLCs 'provide a range of assistance on legal and related matters to people on low incomes and those with special needs', thus being integral to the delivery of legal services in Australia. These services include: front-line legal advice and information; 'minor assistance'; programs designed to educate members of the community about their legal rights, important changes to law and legislation; referral to more appropriate sources of support and assistance; and, law reform campaigns. The website also notes that these services 'make extensive use of volunteers and pro bono work'.[14] According to Daryl Williams, '[i]t is pleasing to note that today pro bono schemes exist on a large scale in an organised framework ... [and] are largely initiatives ofthe private sector, and set up by law societies, bar associations, and law firms'. [15]
Notwithstanding Attorney General Williams' ringing endorsement, pro bono schemes and work are particularly troublesome, not only for the future viability of CLCs, but more importantly for citizen rights and the relationship between government and citizenry. Broadly defined, 'pro bono' refers to 'legal assistance provided without fee, or at a significantly reduced fee, to clients or organisations who cannot afford ordinary market rates or to clients whose cases raise wider issues of public interest'. A range of legal services can be provided pro bono, including: legal advice; court representation; legal assistance to non-profit organisations; community legal education; submissions to government on legal or policy matters of public interest (law reform); and a range of other kinds of legal work, such as the drafting of contracts and other documents.[16]
Anderson and Renouf note that pro bono legal services serve the public interest in two ways.[17] First, by giving poor and otherwise disadvantaged people access to legal services that they may otherwise not have had. Second, because much ofthe pro bono work undertaken deals with issues that have a pronounced public interest dimension. Anderson and Renouf also observe that the motivations for providing free or low cost legal assistance range from charity, through acknowledgement of a professional obligation and the belief that legal assistance is a right, to any combination of these. Additionally they admit that '[t]here are also commercial considerations that may influence a lawyer or law firm undertaking to provide free or reduced cost legal services and the types of services offered'.[18] It is these commercial considerations that are especially worrying for the viability and integrity of legal centres, the clients they seek to serve, and for governments and their relationship with the citizenry.
Reliance on pro bono legal services raises the issue of further outsourcing and privatisation of legal service delivery, one of the government's fundamental obligations to its citizens. In a sense, use of pro bono services is a double outsourcing in that a commercial legal practice is at one further remove from the community than CLCs. Pro bono services are also a much cheaper form of service delivery for government, cheaper even than low-cost, community-based CLCs. Whatever the mix of motivations for offering legal services pro bono which obtains for a law firm or private lawyer in any particular case, the range of services offered, the choice of clients, and the standard of service provided will all to some extent be subject to commercial considerations. Often under these circumstances, citizens, particularly low-income and disadvantaged ones, will have the opportunity to operationalise their legal and citizen rights only when a legal firm or private lawyer has calculated that there is money to be made out of the enterprise. This amounts to a significant downgrading of these rights, and to a measuring of their value and importance against the base standards, conduct and priorities of the market.
The increasing reliance by government on pro bono services also threatens to make CLCs redundant. All of the services that can be delivered pro bono are provided by CLCs. And it is not only reduced costs that attract government to the provision of services by pro bono arrangements. It is likely that commercial practices would be much more acquiescent than their community counterparts. In undertaking community legal education and policy reform activities, CLCs represent the interests and needs of their constituent communities, and advocate on their behalf. This often means that they are in open and public opposition to government. This said, many low income and disadvantaged clients ofCLCs 'need assistance in relation to matters against or involving government agencies - for example matters involving social security, community services, migration, public housing or public education'.[19]
It was noted above, that one of the government's important responsibilities is educating citizens about their legal and citizen rights and supporting people in activating their rights. This obviously presents serious difficulties in situations where citizens are in actual or potential conflict with government or its agencies. However, CLCs are in a much better position than a commercial legal practice to seek redress on behalf of their clients even in their dealings with government. This is because CLCs strongly and successfully assert their autonomy and independence of government, despite their heavy reliance on government funding.[20] In addition the cases they accept are not subject to considerations of present or future commercial gain.
Beyond the foregoing, many of the matters on which CLCs provide advice and support are constitutive of what has come to be known as 'community law'.[21] At present, CLCs are the only specialists in this area of the law in Australia.[22] Community law matters represent most people's experience of the law and account for many people's dealings with government and its agencies. In taking up such matters, CLCs play a pivotal advice and advocacy role for their clients. Not only do CLCs help to reduce the power, resource and information disparities that often obtain in the relationship between citizens and their government, they in effect become mediator in that relationship especially in situations of conflict and dispute.
This does not of course directly address the issue of outsourcing and privatisation of government services which is a real concern for citizens just as it is for legal centres. It does nevertheless highlight the fact that any outsourcing of service provision to CLCs is outsourcing to community-based providers whose raison d'etre therefore is community service. However, as seen above, the establishment of CLCs by the Commonwealth Government in the absence of community support and participation does strongly suggest that the 'community' in community legal centres is becoming much less relevant as far as the government is concerned. And, as again seen above, it also indicates that the government wants CLCs to play the role of agencies delivering low-cost legal services to those who cannot afford to enter the private legal services market. Despite the uses and benefits that CLCs offer the government, however, pro bono has the distinct advantage over CLCs both of lower cost and greater control, and it is this which explains the growth in pro bono work over recent years.
The NPM policy agenda, so enthusiastically endorsed and pursued by the Commonwealth Government, has had a very real and corrosive impact on the role and integrity of CLCs. Not only has it and the purchaser/provider model it encompasses challenged CLCs to look at themselves in the way that they relate to the communities from which they emerge and seek to serve, it has also forced them into forging a new but not altogether welcome relationship with government. This relationship is underpinned by the desire of the government to convert CLCs into its agencies. As agencies of government, CLCs are compelled to treat citizens as consumers of services that they otherwise might have expected to receive by virtue of being citizens having certain rights. The service agreements between CLCs and government, and the performance criteria they require CLCs to meet, severely constrain CLCs in the types and range of services they provide, the number of clients they are able to serve, and their ability genuinely to meet the actual needs of their clients in legal service delivery. The growth in pro bono work has taken the NPM agenda a step further, by allowing the Government to circumscribe the role and activities of CLCs or even bypass them altogether. While this has enabled the government to reduce the cost of delivering legal services at the same time as giving it greater control over service delivery, it has further and drastically downgraded citizen rights.
This all suggests that there are considerable challenges ahead for CLCs, especially in respect of their viability, integrity and community orientation. However, it could be that as representatives and advocates on behalf of citizens in their dealings and disputes with government CLCs may be able to assert for themselves a leading role in the reinvigoration of Australian democracy and democratic institutions. For, as specialists in community law, which encompasses the matters over which many people find themselves in dispute and conflict with government, CLCs have an indispensable part to play in defending and extending the rights of citizens. The privatisation and outsourcing of government services mean that increasingly CLCs will also have to defend the rights of citizens when problems arise in their dealings with business.
[*] Mark Rix teaches in the Graduate School of Business and Professional Development, University of Wollongong. This paper is based on a paper presented at the 19th European Group for Organizational Studies (EGOS) Colloquium, Copenhagen, July 3-5, 2003.
The author serves as Secretary and Public Officer on the Committee of Management of the Illawarra Legal Centre, located in Wollongong. The views expressed in this paper are the author's own and do not necessarily reflect those of the Committee of Management or of the other Committee members.
email: mrix@uow.edu.au
© 2003 Mark Rix (text)
© 2003 Kim Davies (cartoon)
[1] For more on the effects of the crisis see eg Carrie Chan and Chris Cunneen, 'Federal Programs for Access to Justice under a Conservative Australian Government' (I998) 10 Current Issues in Criminal Justice 15-35.
[2] Rose Melville, My Time is Not a Gift to Government: An Exploratory Study of NSW Community Legal Centre Volunteers (Institute of Social Change & Critical Inquiry, University of Wollongong 2002) I 0.
[3] Margaret Camilleri, 'Will the Real Pro Bono Please Stand Up?' (Paper presented at the National Community Legal Centre Conference, Melbourne, 2-4 September 2002).
[4] Mary Anne Noone, 'Australian Community Legal Centres - A Mid-life Crisis', [1997] AltLawJl 8; (1997) 22(1) Alternative Law Journal 25-9.
[5] According to Regan, 'It is common knowledge that in the 1996 budget the Commonwealth cut $33 million from its legal aid budget for each of the following three years. This represented a cut of approximately 20% to the Commonwealth's legal aid expenditure.'(Francis Regan, 'Rolls Royce or Rundown 1970s Kingswood: Australia's Legal Aid in Comparative Perspective' (I997) 22(5) Alternative Law Journal225. Also, as Chan and Cunneen (above n 3, 20) note, 'The Justice Statement introduced by the previous Labor Government in May 1995 specifically set aside $160 million for policies and program designed to ensure access to justice ... it appears that cuts by the current Coalition government in the area of access to justice [including legal aid] ... have amounted to $320 million.'
[6] NACLC, Community Legal Centres in Australia (2003) National Association of Community Legal Centres <http://www.naclc.org.au> at 22 May 2003.
[7] As seen above, the Labor government which preceded the coalition government had modestly funded access to justice programs. As part of this program of improving access to justice, it had begun to allocate small increases in funding for legal aid (in the order of about $16 million per year). However, these increases did little to alleviate the legal aid crisis. Since the election of the coalition government, the crisis has grown in enormity. Ibid.
[8] The continuing legal aid crisis has triggered yet another inquiry: the Senate Standing Committee on Legal and Constitutional Affairs is currently conducting an Inquiry into Legal Aid, which is due to report in March 2004.
[9] NACLC, above n 6 [emphasis added].
[10] Noone, above n 4.
[11] Ibid.
[12] Daryl Williams, 'Keynote Address' (speech delivered at the Legal Aid Forum- Towards 2010, Canberra, April 1999).
[13] Ibid.
[14] Attorney General's Department, Commonwealth Community Legal Services Programme (2003) Attorney General's Department <http://www.ag.gov.aulwww/familylawHome.nst> at 22 May 2003.
[15] Williams, above n 14.
[16] For some of the background to the establishment of the National Pro Bono Resource Centre in August 2002, see National Pro Bono Task Force, Recommended Action Plan for National Co-ordination and Development of Pro Bono Legal Services (2001) National Pro Bono Resource Centre, <http://www.nationalprobono.org.aul> at 22 May 2003. For details of the activities that the National Centre proposes to undertake during the year 2003-2004, see National Pro Bono Resource Centre, Supporting and Promoting Pro Bono in Australia (2003) National Pro Bono Resource Centre, <http://www.nationalprobono. org.au/> at 22 May 2003.
[17] Jill Anderson and Gordon Renouf, 'Legal Services "for the public good'" [2003] AltLawJl 3; (2003) 28(1) Alternative Law Journal 13. See also Gordon Rcnolif, 'A Client Centred Approach to Access to Justice' (Revised Paper for the NSW Law and Justice Foundation 'Access to Justice' Workshop, Parliament House, Sydney, July 2002).
[18] Anderson and Renouf, above n 17, 13.
[19] National Pro Bono Resource Centre, Pro Bono, Conflict and Government (2003) National Pro Bono Resource Centre, <http://www.nationalprobono.org.au/> at 21 May 2003.
[20] Noone, above n 4.
[21] Community law matters include consumer protection, victims of crime, compensation for injury, court support, credit and debt, and aspects of the employment relationship.
[22] Criminal injuries compensation law, which is practised by some commercial law firms in jurisdictions such as South Australia, may be a partial exception to this generalisation. The fees received by these firms from the government for practising in this area of the law do not cover costs.
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