This model aims to address unmet legal need by directing pro bono resources towards lobbying for change to an aspect of the law or its administration that is a source of injustice, or lobbying towards the introduction of a new law or policy. The ways in which pro bono lawyers can use their expertise to assist organisations undertaking public advocacy include engaging in targeted casework and/or strategic litigation to highlight an unjust aspect of the law, contributing to law reform submissions and proposals, commenting on other proposals (including government proposals), letter writing and participating in inquiries and campaigns.
Many of the consulted pro bono coordinators expressed a preference for doing pro bono legal work that has an aspect of law reform (see Chapter 5 Where pro bono resources should be directed). However, others warned that while a change in the law can provide people with better access to justice, it is important that strategic litigation is not seen as an end in itself and that additional legal assistance resources are needed to ensure that people can exercise and assert the rights that have been won through a favourable decision.
Law reform is an important aspect of pro bono work. This should include efforts not just to change the law (eg via a test case), but also to advocate for resources to ensure that rights that are achieved can be exercised and that there is access to legal aid or pro bono lawyers for this. (PBRO manager)
- 27.1 Law Reform and Policy Work: At a Glance
- 27.2 Law Reform and Policy Work: Benefits
- 27.3 Law Reform and Policy Work: Challenges/Limitations
- 27.4 Features of Effective Law Reform and Policy Work
- 27.5 Case studies
27.1 LAW REFORM AND POLICY WORK: AT A GLANCE
Features of effective law reform
27.2 LAW REFORM AND POLICY WORK: BENEFITS
Law reform projects have the potential to make particularly good use of the strengths of its project partners. The partners in the Sexual Assault Communications Privilege (SACP) project, for example, contributed a combination of experience including experience of the relevant clients and issues (CLC) with ‘hard-nosed litigation skills’1 (firms): see case study at 27.5.1.
It is an effective way for the community legal sector (which knows the issues and the clients) and law firms (which have the resources) to work together. (Large law firm pro bono coordinator)
By partnering with CLCs and community organisations, firms can become involved in law reform that they would not otherwise undertake publicly. For example, one large law firm pro bono coordinator said that their firm provided training and research assistance to community organisations involved in identifying problems with Centrelink income management pilots. ‘The firm would not otherwise publicly criticise income management.’
From the firms perspective, potential conflicts can be avoided by doing work to support the law reform efforts of a partner organisation, work which may or may not be attributed to the firm depending on the situation. (Large law firm pro bono coordinator)
From a CLC perspective, the additional expertise and resources that firms can bring allows them to pursue a law reform agenda while minimising the impact on their casework resources.
Law firms have significant resources they can bring to bear. (Large law firm pro bono coordinator)
In addition to providing substantial resources, there are other advantages to having firms involved in law reform that would not normally engage in these issues. For example, the SACP project gave Clayton Utz lawyers the opportunity to work outside their usual areas of practice. The firm also found that ‘they were less constrained about advocating strongly for novel submissions which met some initial resistance from the bench, than other advocates may have felt comfortable doing with judges before whom they regularly appear.’
Having law firms involved provided additional strength and legitimacy to the law reform proposal. (CLC solicitor)
Having a law firm involved in law reform can draw more attention to the issue because law firms arent usually involved in making submissions in that space. (Large law firm pro bono coordinator)
Law reform and policy work also presents opportunities to assist many more people by changing an unjust law than those who can be assisted on a case-by-case basis. Pro bono providers who are concerned about pro bono legal assistance becoming a substitute for legal aid are often keen to do more law reform work.
Pro bono work which has a law reform element or at the least the potential for supporting systemic change goes beyond an individual client’s immediate problem. (Mid-sized law firm pro bono coordinator)
A project involving casework is easier to sell within the firm when it is limited to a law reform goal rather than being an indefinite use of resources. (Mid-sized law firm pro bono coordinator)
From a firm’s perspective, the work is interesting to lawyers and it broadens their skills and experience. The SACP project, for example, was seen as a great experience for Clayton Utz lawyers who were familiar with subpoenas but not in a criminal jurisdiction. ‘It was very satisfying for them to be successful when facing very experienced criminal barristers.’
A wider variety of lawyers within the firm can be employed to undertake law reform and policy work since it uses more general rather than specialist legal skills (eg legal research, analysis, writing skills rather than specialist knowledge of tax law). (Large law firm pro bono coordinator)
27.3 LAW REFORM AND POLICY WORK: CHALLENGES/LIMITATIONS
It can be more difficult for pro bono lawyers to contribute to law reform and policy work in areas where they have little experience or expertise. This can result in firms not doing as much law reform work as they could or would like to.
It is very difficult to undertake law reform as an academic exercise in isolation from casework. (Mid-sized law firm pro bono coordinator)
The legitimacy and credibility of the law reform work undertaken by CLCs comes from their casework experience of the issue. (CLC solicitor)
Pro bono service providers may not have experience in the policy context or with the particular vulnerability of the CLCs client base. This may mean that the pro bono service providers most important contribution to a CLCs law reform process is in a legal context, rather than a policy context. It is our view that submissions on policy should be drafted by the CLC as they have a better understanding of the effect law reform will have on their client base. (CLC principal solicitor)
However, some of those consulted suggested that it is possible for firms to take on discrete tasks in the law reform process, rather than having to be immersed in casework to identify problems in the law and the way it operates (and without taking on resource-intensive strategic litigation).
One way for firms to be involved in law reform work is by partnering with a CLC which has identified the problem and can provide examples of casework that illustrates the issue, but doesn’t have the time to write the submission. The firm can provide the resources (time, drafting/editing skills) to write the submission. The CLC signs off on the submission so the firm avoids conflicts/risk. (Mid-sized law firm pro bono coordinator)
However, it may also be difficult to maintain support for a law reform project where the work does not necessarily lead to any certain outcome in the way that strategic litigation does, or to coordinate law reform activities over what can be a long period before there is an outcome. While not suggesting that pro bono work should necessarily be done for governments, one large law firm coordinator explained that governments are an example of a pro bono client that actually has the capacity to do something with research that is done for them on a pro bono basis. For example, research work for the Mongolian Government on how judges are appointed led to a bill being passed by Mongolian Parliament.
It is difficult to evaluate the success of law reform/policy work that does not lead to any concrete change. Often the pro bono work is done to assist an organisation that does not have the power to effect change. (Large law firm pro bono coordinator)
27.4 FEATURES OF EFFECTIVE LAW REFORM AND POLICY WORK
Project partners need to be able to articulate their law reform goals at the outset. Having a well-planned and coordinated strategy for law reform activities can help project partners to stay focused on their goals and ensure that they have the necessary skills and expertise to support the project.
CLCs/NFPs are good at identifying what the problem is, however they often look to the firm to come up with the idea for a law reform proposal. Firms are good at facilitating a law reform idea that has already been formed and needs the CLC/NFP to have the idea before approaching the firm. (Large law firm pro bono coordinator)
It is important to have someone who is a real expert (whether that is the firm or the CLC) … Often CLCs want firms to write submissions that they can put their name to, but this does not work unless the CLC have formed an opinion/position. (Large law firm pro bono coordinator)
Many of those consulted said that the best law reform is undertaken after a firm has built up its expertise in an area through casework. For example, the Partner for Pro Bono Services and Corporate Responsibility at Gilbert + Tobin (G+T), Michelle Hannon, said that lawyers from G+T have done a lot of domestic violence/AVO work at Redfern Legal Centre and are therefore well informed to do research as they understand how the law works in this area.
Ashurst has developed expertise in the law relating to people with cognitive impairment and mental illness as that has been a focus of the firm’s pro bono program since 1999, and has acted in numerous matters for individuals over that time. As a result of the firm’s good understanding of the issues, it can make informed submissions to Parliamentary Inquiries on, among other issues, alternative decision-making, people with cognitive impairment and mental illness in the criminal justice system and foetal alcohol spectrum disorder (FASD). The recommendations in Ashurst’s submissions on recognising FASD as a disability for the purposes of welfare benefits and in the criminal justice system were a unique contribution to that Inquiry and the recommendations were adopted in full. Ashurst’s experience in the subject area meant that it understood how people with FASD constantly fell outside the definitions of cognitive impairment across most areas of law and policy.’
Effective law reform and policy work arises out of casework so that the lawyers have genuine knowledge of the law and the way the law operates. Law reform doesn’t work in the abstract. (Large law firm pro bono coordinator)
Many of those consulted said that it was particularly important in law reform projects to have a high level of ownership, support and supervision from within the firm.
As there is not as much immediate risk in law reform work compared with case work, the work may not be as closely supervised, e.g. there may be the temptation not to assign a partner to supervise the work, submissions may be proofread rather than settled, and timelines can blow out if they are not closely managed. (Large law firm pro bono coordinator)
Given that law reform work might take a long time to yield results, some of those consulted recommended having a small, manageable group of committed project partners who have a good working relationship and who can share knowledge, precedents and training where appropriate.
The Cancer Patients’ Legal Service initially suffered from having too many partners involved, without establishing which ones were making a real commitment. (Large law firm pro bono coordinator)
27.5 CASE STUDIES
- 27.5.1 Case study: Sexual Assault Communications Privilege Pilot Project (Women’s Legal Service NSW, Herbert Smith Freehills, Ashurst, Clayton Utz)
- 27.5.2 Case study: Law Reform Hub
27.5.1 Case study: Sexual Assault Communications Privilege Pilot Project (Women’s Legal Service NSW, Herbert Smith Freehills, Ashurst, Clayton Utz)
In November 2011, the NSW Government strengthened laws that protect the confidentiality of sexual assault victims’ counselling records in the criminal trial process, and committed $4.4 million for an independent service to assist victims in protecting the confidentiality of their records, as a result of the Sexual Assault Communications Privilege (SACP) Pilot Project.
The SACP project brought together a strategic and unusual partnership comprising Women’s Legal Service NSW (WLS), the Office of the Director of Public Prosecutions, law firms Ashurst, Clayton Utz and Herbert Smith Freehills, and the NSW Bar Association. The project partners provided free legal assistance in the Downing Centre courts to victims asserting the sexual assault communications privilege, which aims to limit the use of counselling records made by, to, or about a victim of a sexual offence. Data collected during the project revealed the extent and nature of legal need, identified problems with the operation of the privilege, and demonstrated how a victim’s advocate model of legal service delivery could work.2
The policy behind SACP is to protect the confidentiality of sexual assault counselling records, so as to encourage sexual assault victims to seek, and continue with counselling, and to make victims feel more confident about being able to report sexual assaults. The legislative reforms ensure that the victim is made aware of their right to oppose the production of their counselling records in Court, and that the Court recognises SACP as an essential element in the criminal trial process.
Until the SACP project, most victims had no knowledge of their SACP rights, and no capacity to enforce those rights before the Court. From February 2009, the SACP project team represented more than 90 victims of sexual assault on a pro bono basis before the District and Local Courts. The project demonstrated that legal representation for victims makes a significant difference in preventing the disclosure of privileged documents. In 91% of cases where documents returned under subpoena contained protected confidences, the complainant was able to assert the privilege successfully.
David Hillard, Pro Bono Partner at Clayton Utz said in December 2010 on behalf of the SACP Project partners:
‘these reforms have been secured through the perfect example of a pro bono project — an identified legal access problem has been tackled collaboratively, reformed through legislation, and with the State now picking up responsibility for future representation of victims. Our organisations started this project to highlight why SACP was not working properly, to get those problems fixed, and to ensure that government-funded services were available for victims to assert their rights. It is so pleasing to see collaboration between private lawyers working pro bono, the community legal sector and the DPP, bring real change to this issue.‘3
How the project came about
WLS was involved in advocacy on this issue at least as far back as 1996, participating in the working party on SACP and providing assistance to counsellors before that time.4 However, it had not done much casework around the issue, until a couple of matters involving SACP arose in 2007 and 2008, which highlighted the gap between the intention of the law to protect counselling records and the reality of what was actually happening in cases. A barrister, Louise Goodchild, assisted with both those matters.
An informal connection between a WLS solicitor and a staff member at the NSW Attorney-General’s Department (AGD) led to AGD becoming interested in the issue, and in having their policy work informed by relevant casework. WLS made submissions to AGD that informed the Standing Committee of Attorneys-General (SCAG) working party on the Uniform Evidence Act.
Ashurst had regularly worked on SACP matters pro bono and suggested involving additional pro bono firms as they could not keep up with the referral demand. A secondee to WLS from Herbert Smith Freehills, Jacqueline Wootton, also suggested using pro bono resources in a more structured way, emphasising the benefit of having a clear referral cycle. After discussing the possibility with several firms that had a strong background in reaching out to CLCs and that were interested in being involved (Herbert Smith Freehills, Ashurst and Clayton Utz), preliminary meetings were held so that all partners could discuss what needed to be done, and who else needed to be involved. WLS had a meeting with the Director of Public Prosecutions (DPP) about the proposed referral system. Tasks were allocated to partners according to their strengths and capacity. For example, the training was organised by WLS and the media strategy and launch (where the DPP and the Attorney-General made speeches) was organised by Herbert Smith Freehills and Ashurst. The firms organised their lawyers to participate in the project, including partners to supervise their work. WLS solicitors also participated in the project.
The intention of all partners was to highlight the unmet legal need, and the difference that representation made. There was a defined timeframe of 12 months with an expectation that reform proposals would be generated at the end of the period, with a view to obtaining funding for a legal service. Continuing with the provision of pro bono legal services was never considered to be a sustainable response to the problem. The expectation was that the SACP project partners would provide representation in approximately 30–40 cases, but that the project would be successful when reforms around how the privilege worked were achieved, making it available to more people.
How it worked
The pilot project ran for 12 months. It was limited to matters before the Sydney Registry of the District Court (subsequently expanded to Parramatta), and representation was made available for every relevant matter in that registry.
To staff the service, the firms invited people within their firm to participate, as well as partners to supervise the work. Around 30–40 lawyers attended the original training (which was provided by WLS, DPP, and the NSW Rape Crisis Centre).
When the DPP was made aware of a subpoena being issued, it sent an email to four contact points in the partner organisations and they worked out between them who had the capacity to take the case on at that time.
Where there were differences of opinion about how the project was working or how the law operated, the project partners met in person to discuss them. However, as each of the project partners was taking instruction from individual clients, they were not bound to follow any particular group decisions on how matters were conducted.
WLS took all the data from the case work, analysed it, and were able to demonstrate that the privilege was upheld in 91 percent of matters where there was legal representation. They made further submissions to AGD, along with the project partners, and met with AGD to develop the legal and policy changes.
The unusual and broad nature of this coalition assisted greatly in strengthening the case for change.5
- The project utilised the strengths of each partner. The project would not have worked as well if only one of the partners involved had tried to do the work on their own, as they would not have had the same capacity. It helped WLS to be able to say they had the big firms behind them, and it helped the law firms in their dealings with, for example, legal aid and shelters, to be partnered with WLS. The partners contributed an effective combination of experience including experience with clients and issues (on the CLC side) with ‘hard-nosed litigation skills’ (on the firm side). WLS also brought expertise in legal policy work, and could effectively liaise with AGD.
- Having law firms involved provided additional strength and legitimacy to the law reform proposal.
- Solicitors at WLS further developed their capacity in the law reform process and have increased confidence when calling AGD about other issues.
- Engaging firms increased the capacity of the CLC to do a much bigger pool of casework, as the firms pooled resources and brought litigation skills and significant resources to the project.
- Relationships/contacts were developed through the project which could subsequently be leveraged for other law reform work, for example, a WLS solicitor attending the sexual assault review committee convened by the ODPP.
- The firms’ volunteers enjoyed the work and having direct contact with clients, and the firms were excited about being involved in policy work.
- Pairing lawyers with barristers developed the skills of the firms’ volunteers, who were familiar with subpoenas but not in a criminal jurisdiction.
- The firms’ lawyers were working outside their usual jurisdiction, which meant that that ‘they were less constrained about advocating strongly for novel submissions which met some initial resistance from the bench, than other advocates may have felt comfortable doing with judges before whom they regularly appear’.
- It is easy to underestimate the time it takes to coordinate a collaborative project of this nature (including phone calls, urgent placing of matters, organising meetings, and arranging training, all on top of usual casework load). Solicitors at WLS said that ‘in future WLS will have a more realistic idea about the time/funding that should be allocated to coordination’.
- There were some disagreements about substantive legal and legal policy issues that were discussed but not always resolved. In the future it would be helpful to have an MOU that sets out what is expected of each partner and clearly delineates different roles (eg casework and policy) and agreement on standard precedents, consent forms and evaluation process.
Features that made it effective
- WLS was able to think about what it wanted as an end goal and effectively sell the project to pro bono partners and government. CLCs often struggle to find time to do this on top of day to day casework.
- All project partners were receptive to the project idea, including the DPP which was open to trying out something new.
- A manageable number of project partners. WLS learned from the experience of the Walgett Family Law Affidavit Project6 which overestimated the demand and ended up with too many trained solicitors with not enough casework to build their expertise. This is another reason that the pilot was limited to the Downing Centre.
- All partners involved had an equal level of commitment. If another firm had wanted to join the project it would not have worked unless the firm was prepared to contribute as much as the others.
- Strong pre-existing relationship between the firms and WLS and a cooperative relationship between the firms.
- There were no public egos. The firms were happy to share the limelight with each other and with WLS.
- Support and supervision from within the firms, with several law firm partners supervising the work.
- Sharing of knowledge, precedents and training.
- Victims of sexual assault are a sympathetic client group. Solicitors from WLS explained that ‘nobody likes to be mean to sexual assault victims’.
- WLS provided training for lawyers who volunteered to participate in the pilot.
- WLS’s feminist approach to the project and emphasis on the needs of victims. WLS strongly advocated for the need to involve the NSW Rape Crisis Centre in training volunteers, especially since firms’ lawyers would have direct contact with clients.
- The WLS solicitors suggested that in future it might also be helpful to provide training and tips from AGD in law reform process for those unfamiliar with how it works.
27.5.2 Case study: Law Reform Hub
The LRHub is a collaborative pro bono initiative established by Henry Davis York (HDY) in early 2015 to provide targeted pro bono assistance to CLCs and NFPs engaging in policy and law reform advocacy work.
LRHub facilitates law reform work that identifies systemic legal problems affecting people who are vulnerable and disadvantaged, and improvements to the law to address these systemic issues.
Tasks that LRHub assists community organisations to undertake include:
- reviewing legislation and comparing different jurisdictions;
- conducting legal research;
- drafting/editing documents to communicate systemic issues that are identified by CLCS and/or NFPs; and
- drafting/editing submissions in response to inquiries.
The Productivity Commission’s Inquiry into Access to Justice Arrangements identified law reform activities by CLCs to be a ‘necessary means to stretch the value of finite funds to maximise benefits to the community’. However the National Partnership Agreement on Legal Assistance Services, which was concluded with States and Territories and came into effect on 1 July 2015, precludes the use of Federal funds by CLCs for campaigning and lobbying.
The LRHub recognises that community organisations are uniquely placed to understand the needs of disadvantaged people and identify systemic issues, as they are the grass-roots advocates who represent vulnerable people every day. While law firms may not be a in a position to advocate on these issues, law firm lawyers certainly have the skills to support front-line community advocates with drafting, research and submission writing. LRHub aims to support the participation of CLCs and NFPs in the law reform process, to ensure that the voices of marginalised community members who might not otherwise be heard are represented in the review process.
How the project works
LRHub actively promotes its pro bono services to CLCs and NFPs and works with these community organisations to identify needs that the LRHub could assist with. Community organisations are encouraged to contact the LRHub to request assistance.
The number of lawyers called on and the firms involved in each inquiry varies according to the needs of the CLCs and NFPs and the subject matter of the law reform activity. The project aims to work with a broad range of community groups, which service a diverse range of clients with various legal issues.
As an example, in 2015 the LRHub coordinated a team of lawyers from HDY, Colin Biggers & Paisley, and Landers & Rogers, which prepared written submissions to the Australian Law Reform Commission’s Freedoms Inquiry on behalf of six CLCs for the National Association of Community Legal Centres (NACLC). The inquiry reviewed the extent to which traditional rights, freedoms and privileges are encroached upon by Commonwealth legislation.
- Giving a voice to advocates who might not otherwise have the resources to be heard. Since its inception, the LRHub has provided assistance and resourcing to more than ten CLCs and NFPs on issues including the security classification of prisoners, children in immigration detention, national and international tenancy law and anti-discrimination legislation in Queensland. Lawyers have prepared submissions to the Freedoms Inquiry, representing a consortium of six different CLCs, the Royal Commission into Institutional Child Sexual Abuse and the Special Commission into the Greyhound Industry.
- The fact that different firms collaborate to provide the LRHub, each bringing their own expertise and interests, makes the Hub sufficiently flexible to cater for a broad range of law reform subject areas. The current participating law firms have offices across Sydney, Melbourne and Brisbane, which allows the project to work across jurisdictions and to address both state and federal level reviews.
- Obtaining timely instructions — it takes time to receive detailed instructions and coordinate the production of a high quality standard of submissions.
- Coordinating the different submission writing styles of the participating firms’ lawyers. The law firm leading the LRHub, HDY, has developed a charter that requires participating law firms to provide partner or pro bono coordinator supervision of the submissions produced to control the quality of the work and to make it easier to ensure there is a consistent style adopted.
Features that make it effective
- Having a single project coordinator.
- Having senior level supervision of the submission writing at each firm involved.
- Strong relationships with the community sector.
- A careful selection process for law reform work that focuses on giving voice to people who are disadvantaged and where the assistance will make the most impact.
1 Pro Bono Partner at Clayton Utz, David Hillard.
2 Jillard A, Loughman J and MacDonald E, ‘From pilot project to legislative reform — keeping sexual assault victims’ counselling records confidential’ (2012) 37 Alternative Law Journal 254.
4 WLS produces Counsellors and Subpoenas: A Practical Guide for Counsellors Served with Subpoenas (3rd ed., Women’s Legal Services, NSW, 2004) and also does community legal education around NSW on the issue.
5 Jillard A, Loughman J and MacDonald E, ‘From pilot project to legislative reform – keeping sexual assault victims’ counselling records confidential’ (2012) 37 Alternative Law Journal 254.
6 The Family Law Affidavit Project was developed through a partnership between Women’s Legal Service NSW (WLS) and the Law Society of NSW with a grant from the Law and Justice Foundation of NSW (LJF). Volunteer solicitors based in Sydney were trained to draft affidavits for family law matters, with instructions taken over the telephone. See Law and Justice Foundation, Family Law Affidavit Project Evaluation Report (2009), at http://www.lawfoundation.net.au/ljf/app/&id=96A5E275C9519729CA257544000FFA9C.