Black Saturday and the Law
Medical care, counseling, food and shelter: In the outpouring of desire to help those who had survived Australia’s worst bushfires on record, these concerns shaped the public’s initial response.
But there was also an urgent need for legal help. While most required assistance relating to insurance and property issues, there were some less predictable queries:
“My place has been burnt down. When can I stop paying rent?”
“The fencing on my property was destroyed and my cattle are wandering all over the place. What can I do?”
“The fire service used water from my property to fight the fires. Where can I get water for my livestock?”
The call for legal assistance has been met by an immediate and overwhelming response from Victoria’s legal fraternity. The huge coordinated effort – dubbed Bushfire Legal Help – has involved Victorian Legal Aid, the Law Institute of Victoria (LIV), the Victorian Bar, the Federation of Community Legal Centres (FCLC), PILCH Victoria – and the profession at large.
The joint response included the establishment of Bushfire Legal Help triage clinics at bushfire relief sites, staffed by volunteer lawyers drawn from across the profession. Many of the lawyers have come from the Homeless People’s Legal Clinic staffed by large and mid-tier firm volunteers who have already been trained in dealing with traumatized people.
The response also involved the setting up a free 1800 hotline. Housed at Legal Aid, the Bushfire Legal Helpline provides basic legal information and assistance and acts as a referral centre for other legal assistance services such as PILCH, the FCLC and the LIV. Since the events of Black Saturday, PILCH (Vic) has received around 80 enquiries from those affected by the fires that devastated towns on the outskirts of Melbourne.
Not surprisingly, the bulk of those were about insurance, says Mat Tinkler, Acting Executive Director of PILCH (Vic). “Insurance makes up around 50% of the enquiries, followed by wills, powers of attorney and deceased estate issues. Some people lost entire families and they are contesting estates.”
“There’s also been a big follow-up response required, to provide information and basic legal assistance and referral. PILCH is the main pro bono referral pipeline. In the first one and a half weeks, we referred over 30 matters. That was very resource intensive, requiring new matter numbers and client numbers. We had to mobilise our troops,” says Tinkler.
In the past few days, calls have dropped down to five-10 new enquiries a day. Acutely aware of the suffering the bush fire victims have already endured, Tinkler says that it is important to reduce double handling as much as possible and to handle with care.
And the flood of calls is coming, not just from victims, but from lawyers wanting to help.
“All our member firms, around 40 of them, have expressed a desire to do whatever they can. Some have offered funds. Two hundred and fifty barristers have offered pro bono assistance through PILCH. The Law Institute of Victoria received 500 enquiries from individual lawyers wanting to volunteer.
“Initially, firms were available over the weekends and on call around the clock. The Bar nominated experts in areas such as property and insurance law who could be a back-up to the solicitors. We had a group of 12 QCs eminent in their field,” says Tinkler.
As the weeks go by, Tinkler says that the nature of the enquiries they receive will begin to change.
“Now we are looking at legal rights in a Royal Commission and coronial inquiry. It will be the next wave. We have little information yet on the process, but when that is out, there will be lots of enquiries around what rights do we have, can we get legal representation, and how will that be funded?”
Secondments to help Human Rights consultation
On 10 December 2008, the Federal Government launched a national public consultation on how best to protect human rights and responsibilities in Australia. This consultation is an historic opportunity for all Australians to have their say.
Yet, without knowing how human rights legislation might affect us, how can we speak up?
Enter the Gilbert + Tobin Centre for Public Law, which has taken up the challenge of looking at what a Human Rights charter would mean for business.
“We want to give the business community information so that they can form an opinion. We are looking at both the benefits and obligations such a charter would impose on them,” says Francine Johnson, who has been seconded from the Gilbert + Tobin law firm to work at the Centre on this and other human rights projects.
“When you think of human rights, the thought is of minority groups or those at a disadvantage in our society, but it impacts all sectors of our community. The consultation wants to get the views of all Australians, including women’s, indigenous and regional groups, and businesses, which are the economic drivers and employers of our community,” says Johnson.
While intuitively we might feel that a human rights charter would be onerous for business, Johnson claims that there are possible advantages.
“While the Federal Parliament, if it wishes to impose a federal charter, could do so in any way it chose, there is a dominant charter model adopted in the United Kingdom, New Zealand, Victoria and elsewhere. Under that model, a charter would not in general directly impact on businesses unless they perform functions of a public nature,” says Johnson.
“The charter sets out a human rights framework for operation of the public sector, improving transparency, responsiveness and accountability in the actions and decisions of the Federal Government. This will indirectly benefit businesses by providing a more stable regulatory environment and a more level playing field of opportunities such as in government tendering processes. In addition, savings in the overall Australian economy associated with minimising human rights breaches are likely to flow on to the business community in its capacity as employers and in its dealings with the Federal Government.”
The Human Rights Consultation Committee has been established under the Chair of Father Frank Brennan. It is accepting written submissions and travelling around the country to take verbal submissions. The first community meeting was held in Queanbeyan with subsequent meetings to be held all around Australia. Final submissions are to be made by 15 June this year and an outline of the committee’s findings will then be sent back to government by 31 August this year.
It is hoped that the material prepared by Johnson and her colleagues will be used by the business community to encourage its engagement in this national consultation and inform its own submissions.
Back at the firm, Johnson works in the Corporate, Communications and Technology Group, which has a commercial focus. “Human rights has been a big learning curve. There is a huge body of human rights law, both on the domestic and international stage. Human rights has grown in momentum since the end of WWII and the Universal Declaration of Human Rights,” says Johnson.
Mallesons have also just seconded solicitor, Julie Walsh to the UNSW Law Faculty to work part time for 6 months to also work on the charter of human rights project and become the new coordinator for the Australian Human Rights Group. Julie was also seconded full time to the National Children’s and Youth Law Centre for three months last year.
Further information about the consultations can be found on the National Human Rights Consultation website at http://www.humanrightsconsultation.gov.au/.
A Canadian Story
One of the problems facing Legal Aid in Canada is the way government funding is divvied up. In contrast with Australia, criminal law is an entirely federal jurisdiction, with family law a matter of the provinces and territories.
“There is a federal Divorce Act, but every province and territory has its own family law legislation,” says Pamela Kovacs, Executive Director of Pro Bono Law Saskatchewan (PBLS).
This confusion makes one of the PBLS’ guiding principles doubly important: “Pro bono services are meant to complement, not replace, an adequately funded legal aid system.”
PBSL was established in March last year through funds made available by the Law Foundation of Saskatchewan, which distributes money from lawyers’ trust funds to legal organizations and projects. As well as the $220,000 of core funding from the Foundation for the first year, PBLS also receives personal and firm donations, and has raised close to $5,000 in this way. It is definitely a ‘going concern’.
As yet, it is hard to know the extent of pro bono work being undertaken by lawyers in Saskatchewan. Kovacs believes that it is done by, “a handful of lawyers, here and there, on an ad hoc basis”.
“Because we are a new organization, we are getting lawyers to register and let us know what pro bono work they are doing. It’s still the big unknown,” says Kovacs.
But when it comes to the kind of pro bono assistance required by the public, that need is well mapped.
“We have Access to Justice Task Force reports which identify a high need in family and civil law and an increase in unrepresented litigants in the family law system in particular.”
There’s also the evidence of the calls to PBLS requesting assistance, which show a heavy demand for criminal and immigration law.
Kovacs refers to the five core programs run by PBLS. These are:
• A Clinic program of free legal clinics, usually run in partnership with other community groups, such as the Salvation Army. The partnership provides the accommodation and technical support so that PBLS doesn’t need to set up its own storefronts.
• A Panel program which recruits lawyers who will accept full representation referrals.
• A Solicitor program which partners corporate lawyers with community groups and organizations. (This is done in conjunction with Pro Bono Students Canada, a well established group whose Saskatchewan program was co-directed by Kovacs during her student years).
• A Mentor program where senior lawyers are matched with junior lawyers in their particular area of pro bono practice.
• A Support program for lawyers unable to engage in pro bono work through their workplace (because they might be in-house or public sector lawyers), providing them with the opportunity to co-ordinate the PBLS free clinics or to undertake work in the PBLS office.
It’s an ambitious offering for Saskatchewan which has a population of just over one million. Kovacs hopes to “take back some lessons” from her visit in February to services in Perth, Brisbane and Sydney. We wish her luck.
In the Government Service
With hundreds of lawyers, and offices in every Australian state and territory, AGS and its lawyers in their personal capacity have been undertaking a range of pro bono work for some time.
“AGS has a pro bono committee comprising lawyers from each of our offices nationally, which has been together for several years, allowing the planning to be shared among a number of people and the opportunity for a broad range of people to be involved. We also have a pro bono policy and we have procedures in place for the approval of projects and for undertaking the work,” says Leanne Bowen, National Practice Manager with AGS’s Government Practice.
“AGS lawyers have a culture of working for the public good. That’s manifest in their own pro bono work and their willingness to be involved in AGS sponsored projects,” says Bowen.
“In terms of meeting the Target, it’s something to which we are committed, and we’ve positioned ourselves well to achieve it over time.”
“As a statutory authority established under the Judiciary Act, there are limits as to whom we can provide services, whether they are fee paying or pro bono.”
She’s also acutely aware of potential conflicts of interest. “One of the areas of society that provides a good candidacy for pro bono are those people who require legal assistance in relation to government services and programs, but they are the clientele of our clients,” says Bowen.
This does, however, raise opportunities for AGS. “No law firm understands the legal issues affecting government and the legislation under which government operates better than we do and we can use that specialized knowledge of the government in our pro bono offering.”
For example, she suggests that AGS could provide training and development services to community and non-profit practitioners. “We can help to develop the expertise of lawyers working in the community and non-profit sector in matters involving the Commonwealth such as the Legal Services Directions, the model litigant policy, privacy and freedom of information.”
“We have also been involved in pro bono referral schemes working with both the ACT pro bono clearing house and more recently, with PILCH in Victoria and we are looking at opportunities to assist other pro bono clearing houses.”
“We are particularly interested in capability strengthening in the Asia Pacific region and will meet with relevant agencies to explore possibilities for pro bono activities. We already undertake work in the Asia Pacific and we could build on that. There’s lots of opportunity there,” says Bowen.
She points out that while AGS hasn’t yet finalized the strategic planning for meeting the aspirational target, it has just recruited a dedicated pro bono manager who will supplement work of the AGS pro bono committee and coordinate their efforts.
When the Time is Right for Pro Bono
“A lot of retired lawyers are interested in pro bono and haven’t had opportunity to take part while they were employed full-time. They find they are freed up by retirement and they want to know how they can get involved,” says Sophie Grieve of the National Pro Bono Resource Centre.
That’s where she comes in. Grieve has planned a series of state wide meetings with key stakeholders to find out how best to engage with retired lawyers and provide them with access to pro bono opportunities. Her first roundtable discussion in Brisbane was a great success.
“The meeting was very positive. All of the stakeholders were enthusiastic We had such a good cross section of the legal profession, including the Law Society, QPILCH, the Bar Association, Legal Aid, community legal centres and law firms, as well as a retired lawyer and career-break lawyer,” says Grieve.
“One of the concerns raised in the group was the need to improve the perception of pro bono as some retired lawyers feel they may be ear-bashed by clients. We discussed the positives of pro bono for retired lawyers being mentoring and teaching opportunities, as well as encouraging intellectual stimulation in different areas of law, which makes use of their valuable experience. Its not just face-to-face casework.” says Grieve.
Pro bono opportunities for retired lawyers need to be structured and streamlined, as well as the momentum of pro bono work sustained over a long period of time. Retired lawyers may also need some computer training.
Ideas for pilot projects were also discussed including community legal centre opportunities, working in elder law and advising not for profit organisations on their corporate governance issues.
The group was also informed that career-break lawyers taking time out for maternity leave would not be a good target group. The demands of looking after a baby leave little space for pro bono work. However, women who work part-time or those coming back to the profession after a longer break and wanting to brush up their skills were likely to be interested in putting up their hands.
The Queensland Law Society has asked the National Pro Bono Resource Centre to present to the QLD regional law societies in September.
The Centre has prepared a Discussion Paper on these issues as a background to the roundtable forums.
The next retired lawyers round table will take place on Tuesday 10 March in Melbourne from 10:30am to 12:30pm at Allens Arthur Robinson and Thursday 12 March in Sydney from 11am to 1pm at Henry Davis York. Contact Sophie Grieve on (02) 9385 7776 or email@example.com if you are interested in taking part.
Pro Bono: The Short Film
“It could be a documentary, or maybe an drama – we don’t mind what genre, as long as the central theme is about pro bono,” says Skye Rose, organizer of the NPBRC’s short film competition.
“We want to end up with something we can use to promote pro bono work generally,” says Rose.
Entries can be no longer than five minutes, so the ‘brief’ calls for brevity. The talented film maker, who can convey the importance of access to justice through pro bono work, will be in the running for the $4,000 prize money, with the runner-up taking away $1,000.
The closing date for entries is 11 June 2009, so grab your camcorder, mobile phone or whatever, and let the pro bono muse inspire!
For more information about the competition see the dedicated webpage.
Clearing House News
In what is exciting news, the Law Foundation of South Australia has agreed to fund the establishment and operation of a pro bono clearing house in South Australia for the first year. South Australian barristers have also organised themselves through incorporating JusticeNET SA which is establishing a database of counsel who are willing to take on pro bono briefs. Congratulations to all those involved in making this happen. More in the next issue.
QPILCH has been funded by the Legal Practitioner Interest on Trust Accounts Fund for a six month project to enhance the delivery of pro bono legal services to rural, regional and remote communities in Queensland. As part of the project, QPILCH will assist two rural and/or remote law firms to develop partnerships with large Brisbane-based firms. The purpose of these partnerships is to support rural and remote law firms to provide pro-bono legal services in their communities. If you would like to know more about this project, please contact Aimee McVeigh at QPILCH on (07) 3012 9773 or by e-mail on RRR@qpilch.org.au.
The Queensland Law Society Pro Bono Scheme and the Bar Association Pro Bono Scheme commenced on 2 February. QPILCH will manage both schemes, effectively bringing all pro bono referrals under one roof with QPILCH’s existing public interest scheme, modelled on the PILCH (Vic) arrangements. The co-location of the schemes will facilitate referrals between them and with services provided by QPILCH and other free legal services. The schemes provide a central point of contact for applications for pro bono assistance in civil matters, reducing duplication and misdirection of referrals.
PILCH Victoria, together with Victoria Legal Aid, the Federation of Community Legal Centres, the Law Institute of Victoria, The Victorian Bar and the Victoria Law Foundation, have formed Bushfire Legal Help. The service has been established to ensure an effective legal response to the bushfire crisis which has wiped out whole towns and local communities and left an estimated 7000 people homeless by the fires. (see story above in this newsletter). There is also a free legal help line, open from 8.45 am and 5.15pm Monday to Friday – 1800 113 432.
A range of factsheets and other resources for those affected by the bushfires are available on the website: www.pilch.org.au/bushfirehelp
Office Coordinator – The Public Interest Law Clearing House (Vic.) is seeking a dynamic self-starter to take on the challenging role of Office Coordinator. With the primary objective of providing a safe, productive work-environment for PILCH, the position manages a varied workload, including the key responsibilities of IT and volunteer coordination.
Excellent organisational and problem solving skills, an aptitude for IT, and a ‘can do’ attitude are the job requirements. Enquiries to Penny Morrow on (03) 8636 4407. Applications to Executive Director, PILCH, PO Box 16013 Melbourne 8007 or firstname.lastname@example.org close 12 March.
Pro Bono in the News – February 2009
Microsoft has promoted one of its intellectual property (IP) attorneys, Horacio Gutierrez, to an executive role to steer its IP policy and licensing programs. Gutierrez has been involved with Microsoft’s pro bono legal program through which company attorneys donate their time to helping immigrants attain legal status in the US and avoid deportation.
The Attorney-General for England and Wales, the Rt Hon Baroness Scotland of Asthal QC, delivered the Magna Carta Lecture at Parliament House. During her visit to Canberra, she participated in a roundtable on international pro bono activities hosted by Commonwealth A-G, Robert McClelland.
“One of the few good things to have emerged as a result of the bushfires is the incredible generosity of the Australian people and the wonderful community spirit disasters seem to foster. (But) it has only taken a week before the first recriminations have been publicly aired, with class actions launched. Unless the law firms are acting pro bono, these actions are likely to turn into a lawyers’ picnic.”
Slater & Gordon has donated more than A$100,000 to the bushfire appeal and about 40 lawyers from the firm are providing pro bono advice to victims of the blaze. The Victorian Bar Legal Assistance Scheme has invited lawyers to offer pro bono assistance.
Federal Attorney-General Robert McClelland has announced more than $200,000 will be given to Victorian community legal centres to help those affected by the bushfires. (Also reported in Get Farming.)
When firms bid for tenders they are often asked what they do in the community, who their pro bono clients are and what environmental policies they have in place. Values are just as important as fees.
In the midst of the most devastating bushfires in Australian history, the Victorian Bar Legal Assistance Scheme (VBLAS) has acted swiftly to canvass interest from legal professionals who are willing to offer pro bono advice to victims of the blaze.
International marriages are crumbling with the global economy, revealing unseen pitfalls in cross-border divorce law. Whereas Britain offers automatic legal aid to the foreign parent trying to recover the children, in America they must rely on their own resources or a pro bono lawyer.
Renew Newcastle, a not-for-profit organisation started last year which aims to revive Newcastle’s inner city area by matching artists and community groups with vacant buildings, has received pro bono assistance from Sparke Helmore which developed its unique licence contract.
The pro bono participation of the four Asia-Pacific law firms selected by the United to investigate the relationship between human rights and corporate law across 40 countries demonstrates their appreciation for how human rights are relevant to their clients’ needs.