Gagging the lawyers

Queensland's Newman government sails into the election with its ideological agenda intact ... Community legal centres to lose funding if they speak out on government policy ... Throttling the voice of the vulnerable ... Stephen Keim and Alex McKean comment 

"There are times to stand outside the courtroom door and say, 'This procedure is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules in the courtroom'. 
There are times to stand inside the courtroom and say, 'This is a nation of laws, laws recognising fundamental values of rights, equality and personhood." 
Mari Matsuda

Newman and the Conveyancer-General

WITH the calling of the surprise election, it becomes instructive to look at one of the last legislative proposals to be presented to the Queensland parliament by Campbell Newman's government. 

In the wake of promises to listen and to be better, the government continues to make unprincipled decisions, designed to weaken existing institutions and deliver poorer outcomes to the most vulnerable. 

This comes in the form of a proposed legislative decree that community legal centres would not be permitted to use public moneys to engage in law reform activities.  

The money, the use of which the government seeks to control, is not the government's money in the sense that it is sourced from taxes. 

Instead, it comes from interest earned the client's money held in lawyer's trust accounts, known as the Legal Profession Interest on Trust Account Fund. 

The proposed changes are in lockstep with Tony Abbott's government, where we saw attorney general Brandis tie the gag to federal funding of community legal centres.  

The Queensland proposal is the latest in a series of decisions by the Newman government, which would have the effect of stifling opposition to its policy agenda and circumventing informed public criticism. 

Shortly after taking office, Newman announced that $97,000 was being cut from the budget of the Environmental Defenders Office. His government also withdrew funding from Sisters Inside, an advocacy group for women prisoners. The Tenants Advice and Advocacy Service also felt the government's knife.

Now the government is proposing to gag those parts of the community legal sector that managed to survive earlier funding cuts.

There are a number of reasons why the proposal is not a sound idea.

Community legal services are in a unique position to provide feedback to government relating to the impact of laws, or proposed laws, on vulnerable groups to whom they provide assistance. 

Community legal services possess, as a result of their day-to-day work, significant expertise and experience in quite specialised areas. 

Gagging lawyers who look after vulnerable and dispossessed clients will mean that government decision-making is less well informed about the effects of its legislation and the ways to improve the way the law operates. 

Another consequence is that the countervailing voice against policies and legislation that benefit the privileged, and other parts of the government's constituency, will be diminished. 

It is vital for the proper formulation of legislation that all informed points of view are properly before parliamentary committees in their deliberations. 

Parliamentary committees form the mechanism by which raw legislative proposals, fresh from cabinet and government departments, receive input from the community in order to assist parliament's consideration. 

The committee process is impoverished to the extent expert voices are excluded, with consequential diminution in the quality of legislation. 

People who need to use community legal services are poorly placed, through lack of resources and lack of advocacy skills, to represent their own interests before parliamentary committees. By gagging community legal services, the government will ensure those viewpoints are removed and marginalised.

Another detrimental impact of the proposal is that it will produce the very thing the LNP government professes to abhor: red tape. 

To the extent that activities of a community legal service could be considered to be outside "the provision of legal services, assistance and education", the service will need to ensure those activities are not funded by government. 

Providing legal services and arguing for reform of bad laws is often an integrated activity, so legal services will have to introduce complicated systems of record keeping and accounting processes to work out exactly what funds were spent on what kind of activity.

Valuable resources of community legal organisations, already running on the smell of an oily rag, will be devoted to bureaucratic accounting processes at the expense of their core activities on behalf of their clients. 

The legislative proposal may end up costing more in services and scarce resources than it purports to save.

One of the activities currently funded by government is the collection of data on a number of important subjects including law reform, legal education and the legal profession, itself. 

By failing to fund these activities, government will be cutting itself off from information capable of providing valuable input into policy formulation.

Removal of access to this data appears to contradict the recommendations arising from the government's own recent review of the allocation of funds from the LPITAF, which state that the need for development or enhancement of specialist services for vulnerable or disadvantaged groups will be based on empirical research on legal need.

The changes also fly in the face of the recommendations the Productivity Commission's report on Access to Justice Arrangements. That report stated: 

"Strategic advocacy and law reform that seeks to identify and remedy systemic issues, and so reduce the need for frontline services, should be a core activity of (community legal services)." 

The proposal of the Newman government actually militates against productivity in the provision of legal services to the vulnerable and dispossessed.

This is perhaps the most cogent reason why funding for advocacy should be retained - to ensure bad policy does not end in bad legislation, which produces bad outcomes for vulnerable and disadvantaged Queenslanders, creating further need for frontline services and pressure on tight budgets. 

The government appears to be pursuing this course out of a desire to avoid having its policies exposed to criticism.

The election campaign is a rare moment that allows voters an opportunity to press those seeking office to abandon proposals whose aim is to concentrate power and restrain alternative voices. 

Stephen Keim SC and Alex McKean