Changing Public Interest Law

These are not the only sites of public interest lawyering. Public interest law may also be practised by lawyers in private practice or lawyers working in advocacy and service delivery organisations (such as Cancer Council Victoria, which has several lawyers working on legal and regulatory issues relating to cancer control).

Martin Penny , ‘Defining and Refining the Concept of Practising in the Public Interest’ (2003) 18 Alternative Law Journal 3; Sarat Austin and Scheingold Stuart , ‘Cause Lawyering and the Reproduction of Professional Autonomy: An Introduction’ in Sarat and Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (1998) 3.

This terminology is more widely used in the US: see Trubek Louise G , ‘Embedded Practices: Lawyers, Clients and Social Change’ (1996) 31 Harvard Civil Rights-Civil Liberties Law Review 415. Sarat and Scheingold also use the term ‘cause lawyering’ in the sense of lawyering to achieve the goals of cause as opposed to addressing the causes of a problem: Sarat, above n 2, 4. Note, however, that PILCH Victoria recently initiated a project about social change lawyering: See Law and Social Change Dialogue, PILCH <pilch.org.au/change/> at 21 May 2011.

In 2006–2007, direct legal advice, information and case work constituted 94% of all activities engaged in by CLCs receiving federal government funding: Commonwealth Attorney-General's Department, Review of the Commonwealth Community Legal Services Program, March 2008, 12.

For example, the Consumer Action Law Centre in Victoria is running a number of social change projects <consumeraction.org.au/get-involved-in-our-campaigns/> at 23 April 2011.

Rich Nicole , ‘Reclaiming Community Legal Centres: Maximising our potential so we can help clients realise theirs’ (Report, Victoria Law Foundation Community Legal Centre Fellowship, 2007–2008) 53.

Giddings Jeff and Noone Mary Anne , ‘Australian Community Legal Centres Move into the Twenty-First Century’ (2004) 11 International Journal of the Legal Profession 257, 258–60.

Rich , above n 6, 39–47; Rice Simon , ‘The Challenge of Remaining “Unfinished” in the Campaign for Justice’ (Speech delivered at the National Association of Community Legal Centres conference, Melbourne, 26 October 2010).

See Cummings Scott L. , ‘The Politics of Pro Bono’ (2004) 52 UCLA Law Review 1.

Bottomley Stephen and Bronitt Simon , Law in Context (3rd ed, 2003) 19.

Raz Joseph , The Authority of Law (1979) 217.

Ibid 216.

Waldron Jeremy , The Law (1989) 15.

Ibid 14.

Sarat , above n 2, 3.

Ibid 4.

See Parker Christine , ‘A Critical Morality for Lawyers: Four Approaches to Lawyers' Ethics’ (2004) 30 Monash University Law Review 49, 57–60 and Parker Christine and Evans Adrian , Inside Lawyers' Ethics (2007) 21–24 for the discussion of the ‘adversarial advocate’ model of lawyering.

The knowledge and skills generally expected of lawyers can be seen in the requirements for admission to practice in Victoria, for example: see Legal Profession Admission Rules 2008 (Vic) r 2.01(1)(a)(i) and schedule 2, r 3.01(1)(b)(i) and schedule 3.

This lawyer departs from the adversarial model of lawyering and might, according to the typology, be ‘a moral activist’: Parker and Evans, above n 17, 23. Social change lawyering can be seen as one style of moral activism. Although the ‘moral activist’ is differentiated by their conscious pursuit of justice through the legal system, they may observe many of the liberal notions of the law and lawyer in their practice; eg, they may see the proper role of the lawyer as the giving of legal advice and representation.

See above n 4.

See Aid Victoria Legal , Handbook for Lawyers (12th ed, February 2009, updated November 2010) ch 2 ‘Qualifying for Legal Assistance’.

Federation of CLCs Victoria, ‘Getting Legal Help: Community Legal Centres’ <communitylaw.org.au/cb_pages/getting_legal_help.php#clc> at 21 May 2011.

See, eg, the Tampa litigation: Ruddock v Vadarlis [2001] FCA 1865

PILCH, ‘Which Scheme is Right for You? Public Interest Law Scheme’ <pilch.org.au/whichscheme/#1> at 21 May 2011.

There have been numerous government inquiries into access to justice, the most recent being the Senate Inquiry in 2009. CLCs and public interest lawyers have often made submissions and are often the subject of significant discussion in the reports resulting from the inquiries: see, eg, Senate Constitutional and Legal Affairs, Parliament of Australia, Access to Justice (8 December 2009) ch 7.

In this regard, query the value of the current proceedings before the Federal Court in the matter of Pat Eatock v Andrew Bolt, concerning Bolt's alleged infringement of the Racial Discrimination Act 1975 (Cth) by way of comments in a column published in the Melbourne Herald Sun. The applicants may ‘win’ this case, but it is questionable, in my view, whether this is the most effective strategy for advancing the substantive equality of Indigenous people.

The enactment of the Charter of Human Rights and Responsibilities 2006 (Vic) has provided an additional set of legal rights on which public interest lawyers can draw. The addition of this set of legal rights does not, of itself, produce social change.

See, eg, Roach v Electoral Commissioner (2007) 239 ALR 1, where the High Court found the Constitution recognises some concept of universal suffrage, but the case only had the effect of returning the entitlement to vote to prisoners serving a term of less than three years. There is arguably work still to be done by public interest lawyers in relation to prisoner franchise.

See Cummings Scott and Rhode Deborah , ‘Public Interest Litigation: Insights from Theory and Practice’ (2009) 36 Fordham Urban Law Journal 603.

Ibid 648.

An example might be Catch the Fire Ministries v Islamic Council of Victoria Inc (2006) 15 VR 207, seen by many as an opportunity to promote the value of religious tolerance in Victorian society, but those goals may not have been achieved (or some damage to religious tolerance may have been done) through the long and difficult hearing process.

Quoted by Rich, above n 6, 81.

Ibid 82.

It seems public interest lawyers in Australia are using some of these lawyering techniques but not always as part of a strategic campaign: see Curran Liz , 'Making the Legal System More Responsive to the Community (Report, West Heidelberg Community Legal Service, May 2007) 63.

Rich , above n 6, 88.

See above n 19. There are issues about how to build the skill base among public interest lawyers to do this work, given the lack of training available through most LLB or JD programs in Australia.

See Debowski Alysia , ‘Old Dogs, New Tricks: Public Interest Lawyering in an “Age of Terror”’ (2009) 34 Alternative Law Journal 15.

Marshall Shanaugh , ‘Mission Impossible? Ethical Community Lawyering’ (2007) 7 Clinical Law Review 147, 167.