Welcome to the June 2008 edition of the e-Newsletter of the National Pro Bono Resource Centre (the Centre). We welcome your feedback/contributions/ideas. In this edition, read about:

1. Centre advocates non-mandatory pro bono incentives; Commonwealth adopts conflicts protocol
2. NSW CLCs gain State funding but ALS may lose services
3. Australian Lawyers Walk for Justice
4. Fittler’s case puts accessible voting on the ballot
5. SA Housing Legal Clinic goes from strength to strength
6. “Intellectually disabled let down by criminal justice system”
7. Jobs in Pro Bono
8. Pro bono in the News – June 2008

Informed by these findings, the Centre has developed a draft model it will recommend the Commonwealth adopts that does not create a mandatory obligation to provide pro bono work. The Centre seeks comment from the legal profession on the draft model before providing final advice to the government.

The Commonwealth Legal Service Directions (LSDs) are to be amended from 1 July 2008 with a view to ensuring that Commonwealth agencies do not discriminate against external legal service providers who perform pro bono legal work against the Commonwealth. The Office of Legal Services Coordination intends to issues a Guidance Note to accompany this amendment.

The Centre has been advocating to Commonwealth, State and Territory governments since mid-2003 that a protocol be adopted that makes clear that government should not penalise or prejudice legal service providers who act against them on a pro bono basis. The Victorian Government adopted the protocol as part of its tendering arrangements, but until now no other government has adopted the protocol. The LSDs are a set of binding rules made by the Attorney-General under the Judiciary Act 1903 about the performance of legal work for the Commonwealth.

Unfortunately, the Aboriginal Legal Service NSW/ACT has suffered a 6% cut in real terms for the year 2008–09. Commonwealth funding has stayed the same but with inflation running at 4% and the rising cost of petrol, upon which they rely heavily for the regional and remote work, increasing even faster, they are having to cut staff and services.

The proposed cuts to be made include the following services:

1. The Police Custody Notification Line will cease operation from 30 May 2008.
2. Representation in criminal matters at 16 Sydney suburban and surrounding Local Courts will be replaced by lawyers from the Legal Aid Commission from 1 July 2008.
3. The Family Law practice at Parramatta and the Family/Civil Law practice at Dubbo will cease from Friday 27 June 2008. The Children’s Care and Protection practice will continue unchanged.

As at 11 June 2008 negotiations were continuing with the Federal Government in the context of contract negotiations for ALS funding for the next year. The Police Custody Notification Line was still operational and ALS is hopeful that it will continue.

“It is time for New South Wales to introduce better voting methods for people with disabilities.”

The call comes after the New South Wales Electoral Commission was found to have discriminated against a blind man, who was not able to cast a secret ballot in Braille during the 2004 local government elections.

When Darren Fittler turned up at his local polling booth to vote in the Randwick City Council elections, he asked for a Braille ballot paper so he could vote independently and in secret. But there was no Braille ballot paper to be had.

This was not a capricious, spur-of-the-moment request. Fittler had written to the NSW Electoral Commission (the “Commission”) a month before Election Day, asking for the same thing. However, when he walked into the polling booth, he had still not received any reply from the Commission.

Since then, lawyers from the NSW Disability Discrimination Legal Centre (DDLC) took Fittler’s case against the Commission to the NSW Administrative Decisions Tribunal — and won. Anyone who now asks for a Braille ballot paper should be able to get one. The Commission is also looking at accessible voting as an issue — not just Braille but other forms.

“We saw the case as being one that would have systemic value,” said Joanna Shulman, principal solicitor with the DDLC. “For strategic reasons, we ran the case as being about one man in one election, so the finding relates only to Darren. However, the finding is significant. It sets a precedent that refusal of a ballot paper in an accessible format may be unlawful discrimination.”

The decision is also significant in upholding notions of participatory democracy and, in particular, the right to a secret vote as the central feature of Australia’s democratic electoral system.

Shulman said that by requiring Fittler to vote with assistance, rather than independently, the Commission was requiring him to give up his right to a secret ballot.

“The Electoral Commission fought quite hard,” she said. “One of their defences was that the legislation covering local council elections is highly specific in its requirements and they claimed that Braille wouldn’t satisfy these. They argued that it was almost impossible to provide a Braille ballot paper given the tight time frames for preparation of ballot forms. The Tribunal did not accept these arguments.”

At a federal level, the Australian Electoral Commission has already trialled e-voting, which addresses the issues of all voters with a disability, and the responses have been positive.

“Participatory democracy and the right to a secret vote is an issue on which the DDLC has been working for some time. We’ve directed a lot of energy towards it. Darren has tried to engage the Electoral Commission for a number of years to get Braille ballot papers. He’d be very happy to see e-voting rolled out nationally,” Shulman said.

Fittler was represented by Kate Eastman, of Counsel, on a pro bono basis.

“We are grateful to Kate and Ben Fogarty, previous Principal Solicitor of DDLC who continued to act on a pro bono basis after leaving DDLC. Their commitment and energy was remarkable,” Shulman said.

And what of the $5,000 awarded by the Tribunal to Fittler for hurt and humiliation? It hasn’t arrived yet, but it will be cause for celebration when it does.

The HLC is managed by the Welfare Rights Centre SA (“WRCSA”) and operates through the provision of pro bono legal services to clients at four homelessness services located in the City of Adelaide. The participating law firms are Minter Ellison, Thompson Playford, Kain C+C and Fisher Jeffries. Criminal and Family Law assistance is provided by Michael Dadds and Associates and Johnston Withers. The host organisations are the Magdalene Centre, Byron Place Community Centre, the Hutt Street Centre and Catherine House. A fifth legal clinic, with volunteer lawyers from Andersons, will commence soon at Uniting Care Wesley in Port Adelaide, to be followed by a legal clinic at the state government’s new Common Ground project. Two hundered and fifty-three clients made use of the service in the first year, but this number will be far greater this year.

The Clinic was awarded the prestigious award for initiating a transforming experience for clients, volunteer lawyers, the centres that support the homeless, and the law firms that provide pro bono. The Clinic was extensively evaluated by an outside consultant before the announcement of the award.

Unlike the cities in the eastern states, Adelaide does not have a pro bono law clearing house to foster the pro bono involvement of the legal profession although it hopes to start one.

“The Welfare Rights Centre saw the need for a structured approach and proceeded to develop the HLC as an opportunity for law firms to participate. There is now a level of pro bono work in Adelaide never seen before,” said Bill Manallack, coordinator of the WRCSA.

Ensuring secure housing seems to be the key to many welfare issues. The Clinic evaluation referred to the reduction of anxiety, the improvement in confidence and self-esteem, and the motivation to take control of their lives that clients experienced after accessing the Clinic.

“A team approach is taken to find solutions to complex issues. HLC works in cooperation with state government projects such as Street to Home, and with health, welfare and other professionals working with marginalised people,” said Manallack.

Manallack said that the Clinic reduces the threat of homelessness through preventative action. “Lawyers can help keep people out of jail for trivial matters and can negotiate a reduction or waiving of fines. This has a positive impact on household finances,” he added.

• A client experiencing domestic violence was assisted to leave an abusive relationship. The volunteer lawyer secured an AVO while the Centre’s social worker organised emergency accommodation for the client.

• Required to pay $10,000 in criminal compensation, a client was being pursued through the court system. The client was on a Centrelink payment and used Centrepay to pay his rent. The lawyer successfully negotiated payment of the criminal compensation so the client could afford to stay in his home.

• Unable to find his case listed at court, a client did not attend his hearing. His failure to attend could have led to his imprisonment, but the lawyer managed to keep him out of jail and thus avoid eviction from his accommodation.

• A client was evicted from a boarding house on tenuous grounds. The landlord owed the client money but refused to pay. The volunteer lawyer sent a letter of demand which resulted in payment, and was important in securing new accommodation.

The HLC has been so successful that it is garnering more than awards. The WRCSA is extending the model to the provision of financial counselling services and free dental services.

The HLC is also winning friends. The New Lawyers Committee of the Adelaide Law Society held a Rock for the Homeless concert at the Adelaide Town Hall earlier this year to raise funds for Clinic and to broaden support.

The Clinic is funded by the Department for Families and Communities and has received support from the Morialta Trust and the Law Foundation of SA.

“It is interesting to observe how the various actors and agents of our legal system struggle to properly manage people with an intellectual disability,” Young says. “Whether it is a police office on the street, an officer in a government agency or a magistrate in court, there is an apparent lack of knowledge and understanding in respect of the various legal and non-legal options and remedies that are available.”

Many of the problems arise because of discriminatory approach towards people with intellectual disabilities. Young says the discrimination may not be conscious and individuals were often unaware of its impact.

“Unfavourable treatment in employment conditions, a failure to provide appropriate services in respect of accommodation, or a failure to allow a person with intellectual disability the necessary support, are common examples,” says Young.

There are numerous examples where persons with an intellectual disability find themselves entangled in a complex and serious legal predicament, not necessarily because of the alleged unlawful act but as a result of the manner in which the individual has been treated by enforcement agents in the legal system.

“It will often stem back to the initial contact the person experiences with the law enforcement officer,” he says. “It is extraordinary how circumstances quickly escalate to an acute state. A simple exchange on the street might result in our client becoming overwhelmed and feeling threatened.

“The police, through inexperience or a lack on understanding, treat that person in a manner insensitive to the circumstances. Instead of a caution or fine, our client spends time in the prison system facing four or five charges.”

Young says it is important to divert people from the legal system towards more therapeutic services where better outcomes can be achieved.

The IDRS is regularly involved in discussions with government agencies and private organisations with an aim to redress the systemic barriers that confront people with intellectual disabilities on a daily basis. The IDRS also employs an education officer whose role includes training rail staff and police officers to identify and better manage situations involving people with an intellectual disability.

In relation to his work Young observes: “My clients’ matters often exhibit a history of continuing failure of those in the legal system to properly communicate and manage persons with an intellectual disability. At times, the work was not strictly legal in nature but often involved an attempt to find a more appropriate service or solution for my clients.”

Young advocates a holistic approach because a lot of cases arise out of ignorance, whether it is a consumer, tenancy or care and protection issue. Negotiation and conciliation is often appropriate to resolve the matter at an early stage.

“Obviously, you want to avoid the costs of taking the matter to court,” he says. “A couple of letters citing possible legal action and the basis on which it may be taken or a few telephone conversations explaining your client’s position and the other party will often agree to a suitable outcome. There is a lot of negotiating required in this work.”

Of his time at the service, Young says that he loved it and would have liked to stay on longer.

“Everyday is filled with surprises and exciting legal challenges. One may be required to go down to the cells at the police station, to the Guardianship Tribunal for a hearing on ‘fitness’, to the court for a criminal matter or to negotiate with an employer about employment conditions, he says.

In total, Young spent six months of pro bono secondment away from the firm, including three months with the Mt Druitt Legal Centre.

“That’s a considerable sacrifice for your team to lose a team member for such a long time; however, there is a growing appreciation within the larger law firms of the value and importance of secondments of this kind.”

He also acknowledges the commitment of the Pro Bono partner and his supervising partner whose time is given to the secondment scheme.

“I would like to keep working with IDRS and volunteering. It is a great organisation, and I hope to continue to give my time and knowledge.”

Acting Executive Director, PILCH (Victoria)

This full-time position is available with the temporary departure of the current Executive Director on maternity leave. Reporting to the Board of Directors, the Executive Director is responsible for leading the strategic direction of PILCH and ensuring it remains at the forefront of pro bono and public interest law in Australia.

Key responsibilities include: developing strong relationships with PILCH stakeholders, driving fundraising activities, developing innovative pro bono projects, leading public policy debates and managing all key operational aspects of the organisation, including high level human resources and financial accountability.

Applicants must have the ability to hold a legal practising certificate and have an excellent understanding of the legal profession, the access to justice sector, and the pro bono sector in Victoria and Australia.

The position commences in September 2008. Interested applicants should read the recruitment pack available at www.pilch.org.au. Applications are due by 10 June 2008. Please direct inquiries about the position to Penny Morrow at PILCH on 9225 6672.

The new ALB “Corporate Citizen of the Year” award recognises firms that demonstrate commitment to being socially aware and environmentally responsible in their own practices through pro bono work, community initiatives and greenhouse offset and reduction programs.

Million-dollar-man wins WA’s top community service law award (Get Farming, 6 May)

Mallesons Stephen Jaques partner Bruce Dodd, who has donated the equivalent of $1million in legal fees doing community service work, is the winner of this year’s WA Attorney General’s Community Service Law Award. (Also covered by ABC and The West Australian)

Innovative client solutions (Asian Legal Online, 8 May)

Piece on Minter Ellison in SA refers to the firm’s pro bono involvement, including contribution to the 2008 Adelaide Bank Festival of Arts, a “Good Practice Recognition” award for its partnership with the Adelaide Cabaret Festival, a SA Premier’s Business Volunteering Award, and an Australian Civic Trust Commendation for its involvement with the Housing Legal Clinic in South Australia.

Adelaide lawyers are setting up the State’s first coordinated free legal service for needy clients (Adelaide Now, 9 May)

Adelaide sets up a Public Interest Law Clearing House.

Pro bono legal program wins diversity award (UQ News Online, 14 May)

The University of Queensland $10,000 Vice-Chancellor’s Equity and Diversity Award was presented to School of Law lecturers who coordinate a course that allows undergraduate students to better understand how the legal system affects homeless and other disadvantaged people. The project is run in collaboration with QPILCH and has helped save $50,000 in fees and assisted 400 clients.

Retrial over doctor’s killing (The Australian, 15 May)

A former psychiatrist convicted of killing South Australia’s director of mental health has won a retrial after acting as his own lawyer in the High Court, having refused the offer of senior counsel to appear pro bono.

Charter will protect vulnerable innocents, not aid criminals (The Age, 18 May)

Lawyers most likely to invoke the Victorian Charter of Human Rights and Responsibilities are those working in community legal centres or acting pro bono in private practice, and representing vulnerable Victorians.

Legal eagles march for civil justice (Sunshine Coast Daily, 19 May)

Around 400 lawyers and legal staff gathered outside the state’s Supreme Court and walked five kms along the Brisbane River to raise funds for the Queensland Public Interest Law Clearing House (QPILCH). (Also in Stock & Land, Business Spectator, Liverpool City Champion, and Albany & Great Southern Weekender)

Taking the time to make a difference (The Age, 19 May)

Lawyer Hugh de Kretser, who took on a six-month pro bono secondment at a community legal centre in Deer Park, is featured in a public exhibition titled Care to Make a Difference in Melbourne’s City Square.

Canberra simplifies tender rules (The Australian, 23 May)

The Government plans to amend the legal services directions governing outsourcing to ensure that firms that undertake pro bono work against the Government are not discriminated against by commonwealth agencies during the procurement process. (Also reported in PS News)

China’s soft heart (The Australian, 23 May)

A group of 18 lawyers who signed a public letter offering to act pro bono for Tibetans accused of involvement in the Lhasa riots in March have been told their licences to practise, which require annual renewal, would be suspended.

Nightmare: Kidnap boy still haunted (Perth Now, 24 May)

Perth lawyer Shash Nigam is representing pro bono a teenager who was kidnapped and sexually assaulted.

Girl, 12, in sex change ‘brainwashed by mother’ (Brisbane Courier-Mail, 25 May)

A father who is opposing the sex change of his daughter has run out of money for legal representation and a cousin is seeking pro bono assistance for him.

New pro bono scheme launched for Northern Territory (ABC News, 26 May)

The NT Law Society has set up a new pro bono clearing service to match people and organisations with legal assistance.

Former premier’s body exhumed for paternity DNA test (Yahoo! News, 26 May)

Talking about the exhumation of the body of former SA premier Charles Kingston in relation to a paternity search, former SA premier John Bannon, now with the law school of Adelaide University, said that all the work is being undertaken on a pro bono basis. (Also reported in The Australian, the Daily Telegraph, Adelaide Now, The Courier Mail and Margo Kingston’s webdiary)

Gums among the ivy (The Age, 26 May)

Australian law student, Jen Robinson, who is studying at Oxford, is chairwoman of the Oxford Pro Bono Publico group, which sees her organise a team conducting research for the UN Special Representative on business and human rights and another formulating advice for Burmese leaders in exile.

Chicks with altitude (The Australian Times, 28 May)

Lawyer Cheryl Bart, who has just climbed Mt Everest with her daughter, has been involved in a range of pro bono activities.

Justice rally banned from Parliament House steps (Herald Sun, 30 May)

A “Rally for Justice” demonstrating against the suppression of names of released paedophiles included guest speaker barrister Peter Faris QC who does pro bono work for victims.