Issue 81: July 2013
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Welcome to the July 2013 edition of National Pro Bono News, from the National Pro Bono Resource Centre. We welcome your feedback/contributions/ideas – please email info@probonocentre.org.au. In this edition, read about: |
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In a speech at the National Community Legal Centres Conference in Cairns yesterday, the Commonwealth Attorney General, the Hon Mark Dreyfus QC MP, announced funding of $4 million over four years for a self-represented litigants civil law scheme to operate in the Federal Court and Federal Circuit Court nationwide, based on the successful pro bono self representation schemes pioneered by the Queensland Public Interest Law Clearing House. This should provide an opportunity for more law firms to become involved. This follows a successful pilot project established by QPILCH in the Brisbane District Registry of the Federal Court and Federal Circuit Court, which extended the model established by QPILCH’s long-running and unique Self Representation Service, which operates in the Supreme and District Courts of Queensland, the Queensland Court of Appeal and the Queensland Civil and Administrative Tribunal. QPILCH director Tony Woodyat said, “These schemes are successful as they use the model of going to where the people are. The Federal Court pilot ran for nearly 12 months and concluded in August 2012. It was a one-day-a-week service and assisted people in areas including bankruptcy, employment and migration so it’s great news to hear that the service is going to become national. We would like to run a full-time service in the Federal Court and Federal Circuit Court in Brisbane and expect the newly announced government funds to be allocated to pro bono clearing houses, referral schemes and the courts”. “Under each of our self rep. schemes, clients can talk to pro bono lawyers about their matter a number of times and this usually helps them significantly. However, whilst we try and obtain pro bono counsel to represent them in court in most cases, for the majority of matters this is not successful”, he said. The Self Representation Service in Brisbane offers self-represented litigants who meet a means test and can’t access legal aid the opportunity to make an appointment (in person or via telephone) with a solicitor who can provide advice and assistance with discrete tasks, including:
Not only does this Service assist the disadvantaged clients who may be in most need of assistance, but it also assists the Courts to run smoothly and efficiently, and taps in to the generosity of lawyers and law firms in Queensland who take responsibility for regular shifts. QPILCH assesses applications and sets appointments, based on solicitors’ expertise and availability. The Attorney-General said that the new scheme will assist self-represented litigants in civil law matters, including social security, discrimination, consumer law, judicial review, bankruptcy, and employment law. He congratulated QPILCH not only on the success of its pilot, but also on its history of pioneering work with self-represented litigants.
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The Statements of Principles and definition of ‘pro bono legal services’ have not changed, although based on consultation with signatories, the definition may be amended slightly to reflect that legal assistance for “individuals who can demonstrate need for legal assistance but cannot obtain Legal Aid or otherwise access the legal system” is better described as legal assistance for “low income or disadvantaged people who cannot obtain Legal Aid or otherwise access legal services”. This change will be made simultaneously with a change in the definition of “pro bono legal services” within the Commonwealth Legal Service Directions so that the definition that applies to the pro bono conditions in the Commonwealth Government Legal Services Multi-Use List tender scheme is consistent with the Target definition. |
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These facts and many more are contained in NSW’s first Aboriginal Wills Handbook, written by Professor Prue Vines from the Faculty of Law at UNSW under the auspices of the Indigenous Law Centre and the NSW Trustee and Guardian. The Aboriginal Wills Handbook recognises that in many cases the law of intestacy is not culturally appropriate for Aboriginal people and that those who draft wills for Aboriginal people are often not sure how to make a culturally appropriate will. Accordingly the Handbook contains resources for lawyers and drafters of wills which include how to take instructions, wills precedents and sample wills. In many ways this is a ready-made handbook for pro bono lawyers who want to assist with this type of work. See Professor Prue Vines talk about her book on YouTube. The full handbook is available free of charge for download on the website of the NSW Trustee and Guardian. The Centre is aware of some of the pro bono legal work done in this area drafting wills and seeking law reform particularly by lawyers at Ashurst, DLA Piper and Herbert Smith Freehills (HSF) and by a number of other firms participating in the Arts Law Centre’s Aboriginal Wills project. Since 2009, the Perth office of HSF has been acting for the Arts Law Centre of Australia on behalf of the families of Indigenous artists from Western Australia. The Arts Law Centre initially came to HSF as it was concerned that the Aboriginal Affairs Planning Authority Act 1972 (WA) discriminated against Aboriginal people who died without a will. As a result of HSF writing to the Western Australian Attorney-General and the Minister for Indigenous Affairs, a review of the Act was conducted and amendments were drafted to repeal the intestacy provisions. These became law in late 2012.
Community Legal Centres such as Loddon Campaspe have worked with the Victorian Aboriginal Legal Service to organise Make a Will Day events but it seems that the overall unmet need nationally remains considerable. The Handbook notes that wills which name the NSW Trustee and Guardian as executor are provided free-of-charge to the person making the will but also notes real concern expressed by those consulted at the prospect of paying a commission to NSW Trustee and Guardian for the role of executor in these wills. The research identified the major concerns of the Aboriginal people consulted as: • concerns about the extent of disputes about disposal of the body of the deceased, including concerns about funeral insurance; • dying with dignity and advance care directives;
• misconceptions about what a will achieves and when people are entitled to make a will; • where to keep a will;
• concern about property disputes;
• concern about lack of recognition of kinship obligations and guardianship of children; and • protecting customary law knowledge. Nationally there seems to be a case for a more coordinated approach to address this serious unmet legal need which is very much about providing access to justice. The Centre would like to hear from firms, lawyers, or organisations who would be interested in a discussion about how this issue might be advanced nationally. Call John Corker on 02 93857381.
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“Pigs with ham or chickens with eggs” is the title of the presentation that the Centre will be delivering on pro bono partnerships TOMORROW at the National Community Legal Centre Conference (Session 37 from 9 -10.30am). The title of the presentation reflects a view of the different levels of commitment that are required to deliver pro bono legal services (the amount of commitment required from the pig to provide ham being greater that the chicken’s to provide eggs), and is one of the many perspectives on pro bono partnerships that are contained in the Centre’s recently released resource, Pro Bono Partnerships and Models: A Practical Guide to What Works. The resource will be demonstrated at the NACLC Conference. The demonstration of What Works will focus on what the resource offers CLCs to help them effectively harness pro bono resources for the benefit of the their Centre, their lawyers, and most importantly their clients. The session will also discuss family law as an example of an area of law where it is difficult to obtain pro bono legal assistance, and will preview the Centre’s upcoming research report into the reasons behind this, despite significant unmet legal need. The discussion will provide those seeking to use pro bono resources with an understanding of how pro bono works. Katrina Ironside (Director, Engagement and Development, Public Interest Law Clearing House NSW) and Jillian Mitford-Burgess (Pro Bono Senior Associate, Henry Davis York) who will also be presenting during the same session said they were looking forward to a frank and interactive discussion about how to make the most of pro bono partnerships between CLCs and firms.
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The ‘Safe Way Home’ Project involves DLA Piper and Allens Linklaters’ lawyers working in partnership with the Prisoners Legal Service (“PLS”), Queensland, to assist disadvantaged prisoners right across Queensland to prepare a written parole application. Many clients are Indigenous, illiterate, non-English speaking, or prisoners with a disability. In Queensland, parole applications can only be made in writing and with about 50% of prisoners not having completed a Grade 10 education, and about 30% of prisoners being Aboriginal or Torres Strait Islanders, this service aims to provide equal access to the most disadvantaged of applicants to assist them make a safer, more structured and supervised release back into the community. The partnership was commenced between DLA Piper and PLS in October 2012 with DLA Piper providing one of their Brisbane based paralegals on a four month secondment and providing other pro bono and practical support including contribution to legislation and policy guidance in the ‘Justice Behind Bars’ manual for prisoners published by the PLS. DLA Piper has since seconded a graduate to the PLS for the past 6 months. Allens Linklaters’ Brisbane lawyers became involved with the ‘Safe Way Home’ project early this year and a team of their Perth lawyers will soon also participate. The PLS was established in 1985. It is has a staff of six, is accommodated in the Catholic Prison Ministry in Brisbane and in 2011-2012, it provided 4,616 advices to prisoners and their families on matters relating to incarceration. Parole is the number one topic for advice. Prisoners from all prisons in Queensland are able to access the PLS for assistance and advice. They do this primarily by telephone. PLS is active in litigation, community legal education, law reform and advocacy. Matilda Alexander, Coordinator/Principal Solicitor, PLS said, “We noticed DLA Piper were doing some interesting work supporting prisoners in Victoria and approached them. They were very receptive and the ‘Safe Way Home’ joint project was launched in October last year. The law firm support has significantly expanded our capacity to provide advice and assistance in relation to parole but also helped the PLS more broadly. Both firms have been quite clear that they want to target the most disadvantaged of clients”. “Training in how to write a relapse prevention plan and a reintegration plan, as well as cultural awareness training has been important for the firm’s lawyers in order to equip them to obtain accurate instructions and produce a draft application that adequately and appropriately covers all the relevant matters. The Parole Board might be deciding whether a prisoner should continue to be incarcerated for a number of years. Having regard to the significant implication of their decision there are surprisingly few resources available to providing assistance to prisoners to make an application that seeks to reintegrate them safely back into the community”. Daniel Creasey, Asia Pacific Pro Bono Manager and Pro Bono Counsel for DLA Piper, said, “DLA Piper started partnering with prison community groups in Victoria in 2009, particularly assisting women in prison as this work addressed key areas of focus for the firm, particularly that of equality and education. These are people who would otherwise struggle to participate at all in parole programs. Significant questions of liberty are at stake”. Nicky Friedman, Head of Pro Bono & Community Programs at Allens Linklaters said, “This project works well. The work process is a good match for the way we both work. PLS identifies the client and sends us their name. We obtain instructions through two or three phone link-ups with the prisoner, draft the parole application and send it to PLS, who then check it, put it on their letterhead and send it to their client. It is a great pro bono program because it allows us to work with the PLS to provide access to justice for an extremely disadvantaged group of individuals”.
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After consultation with signatories to the 
The rate of Aboriginal people who make wills is about 2% compared to the general population rate of about 55%. Combine this with the fact that around 70% of the burial disputes that go to court in Australia involve Aboriginal people, and intestacy laws are often inappropriate for Aboriginal people, a clear and significant case of unmet legal need becomes apparent. 
