Jukes, Janet; Spencer, Pauline --- "Buying and selling justice: the future of CLCs" [1998] ALRCRefJl 18; (1998) 73 Australian Law Reform Commission Reform Journal 5

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While most other organisations strive to stay in business, the original vision of the Community Legal Centre (CLC) movement was to put itself out of business by eliminating injustice. Unfortunately, continuing disadvantage in our society has ensured that CLCs are needed more than ever.

It has been 25 years since the advent of the first CLCs and there are now about 160 in Australia. Specialist centres exist for a range of disadvantaged groups including women, people with disabilities and refugees and in substantive areas including those related to domestic violence, the environment, employment and welfare rights. Staff may include lawyers, financial counsellors, community workers, youth workers, social workers and other professionals. CLCs are linked to many other community organisations for referral, community education, community development and law reform purposes. As well as paid workers, CLCs are made up of dedicated volunteers, who enable CLCs to provide services far in excess of those that could be provided by paid workers alone. Through volunteering, CLCs provide members of the private legal profession with excellent opportunities to bring about system-wide change and contribute to their communities.

From radical and innovative beginnings, CLCs now play a vital role in the legal aid system. This system consists of a co-operative partnership between the private profession, legal aid commissions and CLCs. This ‘mixed model’ is an ideal model of poverty law service delivery.¹ Co-operative partnership has ensured a higher level and quality of legal service delivery than would otherwise be possible given inadequate levels of legal aid funding.

Like any system, however, changes to one part will affect the performance of all other parts and the system as a whole. For example, recent and savage cuts to legal aid have jeopardised the partnership by undermining the private legal profession’s ability to continue the level of pro bono support upon which the underfunded legal aid system has been reliant for so long. In the co-operative partnership, CLCs have been regarded as providing a “distinctive and effective form of legal service delivery, different from both Legal Aid Commissions and the private profession”.²

Is this distinctive and effective form of legal service delivery going to continue into the future? Current indications are that the forces of change are now approaching. Governments are changing the way they fund programs and there are increasing indications that they will do so with respect to CLCs.

This altered approach to CLC funding is being driven by the policy environment in which governments are operating. The economic, social and political framework - including the decline of the welfare state - has changed from when CLCs first opened their doors.³ What is also clear is that justice is increasingly being regarded by governments as a commodity rather than a human right.

The economic rationalist trend will no doubt manifest, as it has in other sectors, in the push towards contracting and competitive tendering, user pays and other similar policies. Indeed these issues were put firmly on the agenda in the recent review of Victorian CLCs.⁴ There are many, however, who are alarmed about the application of such principles to CLCs and not without foundation.

National competition policy (NCP) as shaped by Hilmer in the 1993 report⁵ is having a significant impact on the way community services are offered and funded throughout Australia. It is founded on new interpretations of the traditional liberal economic model. Doctrines such as public choice theory, agency theory and economic rationalism, which underpin NCP, maintain that the market, and the competition essential to a healthy market process, provide the best mechanism for delivering services. It claims that markets provide choices to the individual consumer, who acts from rational self-interest.⁶

Competitive tendering and contracting (CTC) policies are based on a number of assumptions, which are drawn from the increasing focus on national competitiveness. The most pervasive and largely unchallenged (by economists) belief is that the private sector, or the market, is inherently more efficient in allocating resources and benefits than the public sector.⁷ It is suggested that these efficiencies are delivered in two ways. Firstly, through financial gains: competition drives the price down. Secondly, through structural improvements: in a competitive environment the organisation will restructure and provide a leaner, meaner fighting machine.

The assumption that a market is inherently more efficient in allocating resources is erroneous. Efficiencies in service delivery come from good management, clear planning and priority setting, and having sufficient resources to provide services necessary to get the job done well.

Further, most CLC clients do not have choices. Many services provided by CLCs are not available elsewhere. In fact, CLCs grew out of the failure of the market to provide an adequate level of access to legal advice and representation, particularly for those disadvantaged by their circumstances.

Competition, so say the advocates of CTC, is the mechanism by which the market becomes more efficient. That is, competitive markets deliver lower prices to the purchaser, which in this sense is the taxpayer via the government. Without competition or the potential for it there is no incentive to become more efficient. According to this view, competition is the linchpin to efficiency.

In a recent paper on the practice of CTC in local government, the following use of CTC was explained:

The Australian Council of Social Services (ACOSS) claims that “human services are fundamentally different from other types of business and production, and this needs to be reflected in the way in which governments fund and deliver human services”.⁹ This view is explored more generally by Hodge who argues that “the community expects different things of government than of business. The values underlying public sector actions are fundamentally different to the values underlying private sector actions”.¹⁰

Private sector model	Public sector model
Individual choice in the market	Collective choice in the policy
Demand and price	Need for resources
Closure for private action	Openness for public action
The equity of the market	The equity of need
The search for market satisfaction	The search for justice
Customer sovereignty	Citizenship
Competition as the instrument of the market	Collective action as the instrument of the polity
Exit as the stimulus	Voice as the condition

This table illustrates Hodge’s view that the values which underpin the actions of private and public sector workers, managers and stakeholders (eg. clients or consumers) are different. He suggests the public sector is concerned with the collective and the private sector with the individual. Competition does not feature in the public sector model. Openness and public accountability are also issues of difference between the public and private sector value bases. The values underpinning the philosophy of CLCs are closely identifiable with the values of the public sector model listed above.

According to ACOSS, national competition policy has been misapplied to the community sector:

Community legal centres and their clients have much to lose by the introduction of competitive markets into a sector which prides itself on qualities such as client focus services and independence from government.

Ryan, commenting on the implications of introducing competition into the service delivery of social services, claims, “the most detrimental feature of competitive delivery strategies appears to be its effect on promoting division and fragmentation between implementing actors”.¹² These ‘implementing actors’ include the government department who takes on the role of the purchaser of the service and the community service organisation, as the provider.

This breakdown of collaborative models is potentially fatal, not only to the CLC movement, but the whole legal aid system. Partnerships and the high level of collaboration that have developed over many years between legal aid, CLCs and the private profession hold the legal aid system together, enabling it to keep functioning despite extremely low levels of funding.

While conceding that it is too early to determine the longer term impact of competitive tendering on collaborative service arrangements, Murfett argues that “anecdotal evidence from council (local government) staff strongly suggests that in many aspects the ‘walls have gone up’ between councils and between councils and other agencies, because of the competitive and secretive nature”¹³ of the competitive tendering and contracting environment.

This concern is echoed among workers and managers in community organisations. Once used to providing support to each other as they tackled the complexities of working with various client groups,¹⁴ many community organisations in Victoria are now in direct competition with each other.

Community legal services are regarded as agents of change and respected players in the broader policy context. The Fitzroy Legal Service, for example, considers its ability to provide innovative services and to be responsive to its constituent communities as a core feature of its operations. The CTC model is prescriptive in terms of ‘output’ and has significant limitations in terms of contributing to broad social policy development.

Community ties mean that services can be more closely targeted at the local level. Working at the local level ensures that, where possible, local solutions are found to local problems. In addition, monitoring and evaluation of local initiatives and the community’s response to them is more relevant and manageable. This local knowledge enables centres to identify groups within the community for whom justice is inaccessible, and develop strategies to encourage their participation. The location of CLCs in the communities they serve and initiatives such as shop front offices, night services, on-call lawyers for young people in custody, interpreter services and outreach services ensure that CLCs are accessible. Furthermore, clients should have a say in the services which are provided to them and, by doing this, clients become empowered to help themselves.

Major stakeholders for community organisations are identified as their constituent communities, for example in the case of the Fitzroy Legal Service, people in necessitous circumstances who live in a geographically determined catchment area. The Fitzroy Legal Service is concerned that there is a real risk that constituent communities will lose commitment to their community legal services which they previously struggled to develop. This move is certainly in the opposite direction of the stated goals of many CLCs and of broader social policy, which recognises the value of community development.

Further, the power of constituent communities to determine the direction of their organisations is threatened by the introduction of CTC. Aulich and Reynolds suggest that this has certainly been the case for local residents in relation to the changes to local government:

In their current form, CLCs are independent from government. Not only is this independence essential in engendering trust amongst the disadvantaged groups and individuals, it also enables CLCs to be fearless advocates for systemic change. While from time to time, the worth of the CLC movement has been questioned by those who have been the target of CLC campaigns, independence has prevented the CLC movement from being silenced.

There is legitimate concern that shifts to CTC will result in CLCs being silenced. This may happen overtly through the withdrawal of funding for CLCs that speak out or through draconian secrecy clauses in service contracts. Alternatively, it may happen indirectly through the purchase of legal services only, as distinct from law reform and community development.

CLCs are not just about service delivery, but about change. They operate within an integrated model of service delivery including casework, community legal education, law reform, community development and lobbying. While individual problems require individual solutions, where the same problem is repeatedly experienced throughout the community then proactive systemic solutions are required.

The clients that access CLCs are very different from those who approach the private profession. There is often a level of complexity and multiple disadvantage that necessitates a holistic approach to service provision and the exploration of responses, which may or may not be legal in orientation. This holistic approach may mean spending extra time taking instructions, familiarisation with cultural aspects, involving clients in the process of solving their problems, dealing with other agencies, being a source of comfort for the client and their family, conducting community development and law reform activities.

CLCs have achieved a great deal by remaining flexible and responsive to client needs. In the area of law reform, it is difficult to predict what will be the main issue of concern. Indeed, the Fitzroy Legal Service, for example, could not have predicted the combination of the police baton charge at Richmond Secondary College, the use of pressure point compliance techniques in East Melbourne and the mass strip search of patrons at the Tasty Nightclub. However, these cases have provided an important vehicle to push for necessary reforms within the Victorian police service.

Another feature of many community service organisations, particularly the community legal service movement is their extensive reliance on the use of volunteers. How will volunteers fit in an open competitive market for service provision?

There has been a noticeable absence in research undertaken into the effects of CTC on services provided by volunteers. Will volunteers continue to work for organisations which are profit driven, or compete in an open competitive market? How do volunteers feel about donating their labour so that the government can cut costs in relation to service provision? Are volunteers undercutting the wages of paid workers performing the same or similar tasks? Is it ethical or proper for agencies to competitively tender to provide services with the donated labour of volunteers?

In the case of the Fitzroy Legal Service, volunteers indicate, through application forms and surveys, that the major incentive for volunteering is to provide an opportunity to ‘make a difference’, that is, to bring about structural change. The feeling of being able to participate in decisions that impact on all participants of the service is also a deeply cherished value of the service.¹⁶ Volunteers are unlikely to continue to work at the Fitzroy Legal Service if they are unable to participate in an integrated service that works to achieve systemic change for its clients.

At a meeting of volunteers and members of Victorian community legal centres in November 1997, community legal centre volunteers indicated by resolution that they would withdraw their services should the mix of casework, community legal education, law reform and community development be altered. Further, informal discussion with many Fitzroy Legal Service volunteers suggests they would not continue to volunteer for the service if it was competing with private law firms (places of employment for many of the volunteers) to provide legal advice services.

Community legal centres demonstrate, through their actions, many of their values about how they see themselves as agents of change and advocates for their constituent communities. This view presents a number of critical dilemmas in the introduction of competitive tendering and contracting in community legal services which include the shift in power to make decisions about what services are offered, how they will be offered, the changed role of clients, how the resource of volunteers are considered and threats to the fearless voice.

While there is always room for improvement in service delivery, any changes to the community legal centre funding program must be undertaken in close consultation at the community level and retain the key features of CLCs.

The Fitzroy Legal Service led the government into understanding the need for shop front legal services and has continued to demonstrate its value to the Australian community over the past 25 years by having a significant impact on the way legal services are provided. To appropriate this initiative and try to deliver these services in a ‘top down’ manner demonstrates a misunderstanding of the philosophy of community legal centres such as the Fitzroy Legal Service.

All those involved in CLCs, particularly the many dedicated volunteers, have much to be proud of. As more and more human rights, such as the right to legal representation, are taken away and avenues that give voice to the voiceless and advocate for change fall foul of the axe of economic rationalism, disadvantaged people in our community need more than ever a strong, independent and vocal CLC movement.

* Janet Jukes is the Coordinator and Pauline Spencer the Legal Projects Officer of the Fitzroy Legal Service

1. Huxtable, P.,‘Producing The Goods’ (1996) 21 Alternative Law Journal, pp. 273-275.

2. Office of Legal Aid and Family Services, Attorney General’s Department, Commonwealth Guidelines for Funding of Community Legal Centres, Canberra: AGPS, 1993.

3. Noone, M.A., ‘Mid-Life Crisis - Australian Community Legal Centres’ (1997) 22 Alternative Law Journal, pp. 25-26.

5. Hilmer, F.G., National Competition Policy: Report by the Independent Committee of Inquiry, Commonwealth of Australia 1993.

6. Trifiletti, G., Contracting Out: The Case for Consumer Rights in the Provision of Local Government Services, Consumer Law Centre of Victoria, 1996.

7. Adams, M., ‘CCT a Time Bomb for the Arts’, VACVIC Bits, a Newsletter of the Youth Affairs Council of Victoria, September, 1997, pp. 6-7.

8. Murfett, P., ‘Compulsory Competitive Tendering in Victorian Local Government’, Just Policy, No. 8, November, 1996, p. 38.

9. ACOSS, Keeping sight of the goal: the limits of contracts and competition in community services, Australian Council of Social Services Paper 92, 1997, p. 5.

10. Hodge, G., Contracting Out Government Services: A Review of International Evidence, Melbourne: Montech, 1996, p. 11.

12. Ryan, N., ‘The Competitive Delivery of Social Services: Implications for Program Implementation’, (1993) 52 Australian Journal of Public Administration, p. 361.

15. Aulich, C. & Reynolds, M. ‘Competitive Tendering and Contracting Out’, (1993) 52 Australian Journal of Public Administration, p. 397.

16. Fitzroy Legal Service. Fitzroy Legal Service: 3 Year Strategic Plan 1997-2000, Fitzroy: The Service, 1997.

Australian Law Reform Commission - Reform Journal

Jukes, Janet; Spencer, Pauline --- "Buying and selling justice: the future of CLCs" [1998] ALRCRefJl 18; (1998) 73 Australian Law Reform Commission Reform Journal 5

Reform Issue 73 Spring 1998