The community legal sector is well positioned to identify need for systemic change, to act upon that need and to generate policy improvements with significant public impact. Jacki Holland of Good Shepherd Australia New Zealand discusses how, by engaging in strategic legal advocacy, community lawyers can venture beyond traditional case by case approaches to tackle systemic and common legal problems through novel means generating broad community benefit.
Although the daily limitations of operating in a funding constrained environment can seem to impede opportunities to do so, lawyers in the community legal sector are well positioned to identify where systemic change is needed, to act upon that need and to generate policy improvements with significant public impact.
Beyond the delivery of services on a case by case (often responding to the same legal problems experienced by a revolving door of new clients) there is advantageous opportunity for community lawyers to engage in a variety of forms of strategic legal advocacy. Increasingly, community and legal aid lawyers are identifying systemic issues and seeing a role for themselves in tackling common issues with a broader lens[i] – addressing the source of problems experienced by whole clusters of the community through innovative and novel means.
Typically, the term advocacy, when applied within the legal profession, refers to the formal work of a legal practitioner in putting their client’s case to a court in order to obtain a legal remedy. In this realm advocacy can be strategic, serve the public interest and generate positive outcomes for the broader community where a specific legal claim is successfully argued through such traditional processes resulting in the establishment of a new legal precedent. This might serve to improve the operation of the justice system and promote improved administrative decision-making.
Strategic legal advocacy can, however, also involve practices other than pursuing public interest cases within the confines of traditional legal processes. It can occur in a much wider context. It can serve to enhance the reputation of the legal system as a system that is flexible and adaptive in remedying injustices, and can give community members a greater sense of access to justice.[ii] Strategic legal advocacy can include participating and contributing to awareness campaigns (for example through social and mainstream media), making written submissions to formal law reform processes or collating data and providing evidence to support the actions of policy advocates in this and other sectors. Moreover, it can involve streamlining approaches and innovating to realise efficiencies of scale that enable otherwise unmet legal need to be addressed. This is a critically important consideration in a sector that turns away over 150,000 potential clients per year, predominantly due to insufficient resources.
An example of such strategic legal advocacy is the National Bulk Debt Negotiation Project jointly administered by Victoria Legal Aid, Legal Aid New South Wales and West Heidelberg Community Legal Service between 2011 and 2015. The National Bulk Debt Negotiation Project was responsive to a recognised need for creativity and innovation in meeting the needs of vulnerable consumers – a need driven by limited legal assistance resources. The initiative involved non-adversarial negotiation with specific credit providers, debt collectors and utility companies for the bulk assessment and waiver of debts owed by thousands of clients in genuine long-term financial hardship who genuinely lacked capacity to pay.
The approach benefitted not only clients referred to the project, but also a much larger group of similarly affected community members. It did this by influencing changes to policy and procedure within the financial services and utilities sectors. Debtors who relied solely upon Centrelink benefits for their income were relieved from the strain of being pursued for debts they had no means of servicing. The project simplified the process for having debts waived, generated cost efficiencies in the financial services sector and minimised resourcing issues amongst debtor advocates in the community legal, legal aid and financial counselling sectors. It ensured decisions in comparable cases were consistent and fair – an outcome not always achieved by conventional practice.
The National Bulk Debt Negotiation Project was novel in multiple ways. It involved significant networking across both the community legal and the financial counselling sectors to identify the nearly 3000 clients of the project. It creatively exploited internet based technologies to gather client details from disparate locations across Australia - legal and financial advocates could refer clients to the project via a unique online portal. It was particularly innovative in the manner in which it significantly up-scaled the traditional case-by-case approach to dealing with debtors in significant financial hardship. A process was adopted whereby similar debts were collated and presented to creditor organisations to be assessed in a wholesale manner. To facilitate this process, the project team engaged in extensive and unprecedented collaboration with the banking and financial services sectors. From this collaboration emerged an agreed framework for identifying judgment proof debtors. In this manner, the project positively influenced the manner in which debt collecting bodies (including insurance, banking, finance, utility and telecommunications) managed and responded to debtors in long-term financial hardship. As a consequence, the number of unresolved financial hardship cases referred to external dispute resolution agencies were also reduced.
The evolution of the National Hardship Register is directly attributable to the Project. In the wake of the project, multiple banks incorporated debt waiver programs into their standard business practice, with terms similar to those applied by the project. The Australian Bankers’ Association Code of Banking Practice now provide more comprehensive frameworks guiding responses to debtors in financial hardship - a change that impacts the business practice of most major Australian banks. Enhancements benefitting debtors in hardship have also been incorporated into debt collection guidelines issued by the Australian Competition and Consumer Commission and the Australian Securities and Investments Commission.
The National Bulk Debt Negotiation Project demonstrated the immediate and consequential impacts that strategic, collaborative legal advocacy can have. It highlighted that strategic legal advocacy can be targeted with great effect not only to public interest cases and the legislature, but also to the private sector - to influence industry practice and the policies of non-government organisations.
The importance of this capacity for strategic advocacy to influence policies in a variety of forums should not be overlooked. With it being sometimes suggested that many government policies are, by necessity experiments, strategic approaches that first generate change in non-government forums can do much to herald best practice, provide firm evidence in support of the case for broader change, and, from this basis, influence government to accordingly adapt policies, laws and regulations.
[i] Warner, B, Maximising value through strategic advocacy, June 2014
[ii] Wierzbowski, A, Lawyering for change, 201