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Alternative Law Journal |
Louise Glanville is a Melbourne lawyer and a volunteer at the Western
Suburbs Legal Service.
In May 1999, the Victorian Civil and
Administrative Tribunal ordered the State government to release confidential
prison contracts for Victoria’s three private jails at Port Phillip,
Fulham and Deer Park to the Coburg-Brunswick Community Legal and Financial
Counselling Centre.[1] This decision
stands as a most timely reminder of the potent role that can be played by
community legal centres (CLCs) in actively challenging the status
quo[2] and advocating for
change.
While this is not a comfortable role for many, it is definitely
not a new (or uncomfortable) role for CLCs. The origins of the sector were based
in conflict and challenge, in an acknowledgment that the legal system bestowed
benefits on some and not others, and that legal services were largely
unavailable to the poor. Importantly, this history is one which has recognised
the connections between direct service work with individuals and the need for
legal education and law reform if any change is to be sustained in the longer
term.
That CLCs can challenge the status quo and advocate effectively
when the legal or political rights of individuals and communities with which
they work are threatened, is not under question. The examples of this in
practice are both numerous and well known.
However, what is not so clear
is the capacity of CLCs to challenge the status quo when their own future is at
stake. In this Brief, I will identify some of key elements of the current policy
environment, which threaten the purpose and function of CLCs. I will consider
the ways in which CLCs can challenge these, while simultaneously working towards
ensuring their future, for it is only by having an eye to their own survival
that CLCs will be able to continue the struggle for the individuals and the
communities they represent.
There are two key elements of the contemporary policy environment that I will identify for the purposes of this discussion:
| • | a focus on consumerism as distinct from citizenship; and |
| • | the place of competition, economic rationalism and micro-economic reform. |
The characterisation of individuals/service users in society as consumers or
customers, rather than citizens, carries with it a model of public policy which
has particular limitations as indicated in the following table:
The competing models of public policy
[3] compared
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While it is acknowledged that the concept of citizenship can, and has been, used to exclude participation (for example, women and minorities), it carries with it a greater sense of both rights and responsibilities that are not solely defined by reference to the market and market mechanisms.
Paul Keating stated in 1992 that ‘the engine which drives efficiency is
free and open competition’.[4]
This position has been reinforced by successive governments at both State and
federal levels.
The dominant economic rationalist paradigm over the past
decade has been characterised by a reduced role for government and the public
sector, particularly in the area of service provision, and a focus on
competition as the major road to efficiency (that is, an expectation of lower
cost and better quality outcomes for individuals).
For community
organisations, this has meant an increased focus on outputs in the form of
service delivery, a need to become more familiar with market mechanisms, such as
user pays, and to develop skills in competing for available
resources.
During the 1990s we have seen an emphasis on models of
organisation which stand for the proposition that bigger is necessarily better.
This has been evident in the amalgamation processes for both community health
and local government and is certainly on the agenda in the context of the reform
of the community legal sector. An associated assumption is that existing models
of service organisation are inefficient.
There has also been an
increased reliance on the market to cater for individuals’ needs and an
acceptance that the market can allocate resources to achieve the most efficient
and effective outcomes.
It will be argued that each of these ‘status quo’ elements of the policy environment represent a threat to CLCs, and that in order to survive, CLCs must advocate on their own behalf for some alternative paradigms. Each will now be considered.
The connection between a CLC and the community it serves is a complex one. In
its response to the Issues Paper prepared by the Impact Consulting Group for the
Review of the Community Legal Centre Funding Program in Victoria, the Federation
of Community Legal Centres described CLCs as community-based, community-oriented
(relying heavily on volunteers) and responsive to the needs and issues
identified by their constituencies.
In a similar vein, the federal
government, in its 1995 Justice Statement, emphasised the point that:
The Government recognises that community legal centres’ close links to their communities are an important part of their effectiveness and accessibility.[5]
These
statements suggest that there is a crucial connection between CLCs and their
communities and that this concept of community leads to a ‘common
identity’ as a consequence of such factors as geographical location, issue
of interest, shared class or gender, shared experience or other such
matters.[6]
It is my contention
that communities are comprised of citizens rather than consumers, of individuals
who can potentially exercise civil, political and social rights to achieve
particular ends. And that it is this form of participation, not participation as
a customer or a consumer, that enables CLCs to develop unique connections with
those they represent.
It is also this form of participation which can
potentially locate CLCs in an influential position at the margins of the legal
system. This would be one way of guarding against the continuing co-option of
CLCs, as identified by Noone in her article on the ‘mid-life crisis’
of CLCs, in which she states that there is a danger of placing at risk the
‘sense of political purpose and ... innovative tendencies’ of CLCs
by such co-option.[7]
The support and active involvement of both citizens and communities
connected to CLCs should be a key focus of any activity which is seeking to
consolidate the position of CLCs generally. While this may be seen by some as
stating the obvious, the tendency in times of significant change and crisis may
well be for organisations to focus inward to ensure a continued existence,
rather than reaching outward for a survival which is meaningful in the context
of the rights and expectations of citizens and communities. Indeed, and this is
a personal view, if the latter is not possible then the former may well be a
very inadequate alternative that is not worth the energy of pursuit. Survival at
any cost is not necessarily the answer.
Considerable evidence now exists to question whether competition, in every
instance, will lead to lower cost and better quality outcomes for individuals,
communities and society at large.[8]
This is particularly the case with human services, such as CLCs, and may be a
consequence of some of the following
features:[9]
| • | Services are often personal and individual and generally involve direct interaction between service provider and recipient; there is often an ongoing relationship established and hence continuity of service provision is important. |
| • | They deal regularly with sensitive areas of peoples’ lives, and where people may feel particularly vulnerable. This necessitates the provision of particular ‘service guarantees’ in relation to matters like confidentiality, respect, fair treatment and non-discrimination. |
| • | People are part of the process. This has implications for the design and delivery of services: the issues involved are not merely technical but value-laden; service users are active agents, they form an important part of the input and the end product and hence have a right to be consulted and to participate more broadly. |
| • | Activities are often relatively unpredictable, non-routine; requiring individual judgement, flexibility, adaptability and the use of discretion on the part of the service provider. These factors present particular challenges in the task of the drawing up of contract specifications in a competitive environment. |
| • | The individual transactions/exchanges that make up a service are sometimes difficult to isolate and define as discrete units and hence present difficulties for quantification and the attribution of cost (for the purposes of unit costing). |
| • | Determining an unambiguous service–service user relationship can be complicated and unclear; as for example in community legal education projects and in law reform activities. |
| • | The extent of ‘co-production’ and joint production, that is, the contribution of the user or others to the service system, is often strong. |
| • | The nature of the ‘product’ means that service performance criteria and measures are complex and multi-dimensional; and as such will require a substantially qualitative, as well as a quantitative dimension. This will add an additional layer of difficulty to the critical task of monitoring. |
| • | Human service outcomes can be invisible, intangible, imprecise, indeterminate and not apparent over the short term — so how can they be adequately measured (particularly in a policy context dominated by a focus on immediate cost-benefit)? |
| • | Equity principles are central to the formulation of policy and to the provision of services, education and advocacy activities. |
Some of these features could be used
to develop thinking around the ‘public benefit test’ under National
Competition Policy in the context of CLCs. This test has received limited
attention in terms of its practical application even though it was referred to,
at least in part, in Professor Hilmer’s original 1993 report:
The
promotion of competition will often be consistent with a range of other social
goals, including the empowerment of consumers. However, there may be situations
where competition, although consistent with efficiency objectives and in the
interests of the community as a whole, is regarded as inconsistent with some
other social objectives.[10]
Furthermore, the National Competition Council, in its 1996
report on the public interest, stated that there was a capacity to modify market
testing regimes to take account of broader social
objectives.[11]
CLCs are
ideally placed to explore the concept of public benefit in greater detail. This
activity would make a significant contribution not only to the future of the CLC
movement itself but to our analysis of competition policy and the public
interest more broadly. This approach may also enhance CLCs capacity to take some
control of the economic rationalist agenda that may clearly not be in the best
interests of CLCs if a competitive regime is advocated at all costs. In other
words, while perhaps ambitious in light of the ‘reform’ experiences
of other sectors, CLCs could attempt to define or set the agenda, in part around
the relevance of the public benefit test to its own activities, be these direct
service, legal education or law reform.
CLCs must not become impotent within the threatening environment in which
they now find themselves and I have suggested several strategies in this vein.
They must remember their capacity, demonstrated time and time again over the
past 25 years, to challenge the status quo and to use both political and legal
processes to effect change. Most importantly, they must not become alienated
from the communities out of which they have grown, or to which they are
connected.
References
[1] Finlay, S., ‘Order to
Release Prison Contracts’, Age, 21 May 1999, p.2; see (1999) 81
FoI Review for a summary of the VCAT decision (published by LSB Co-op Ltd,
tel 03 9544 0974).
[2] In this
context, the status quo could be defined as the primacy which is currently given
to ‘commercial-in confidence’ contracts over the interests of
democracy and open government. For further consideration of this see chapters 8
and 9 in P.D. Finn, Essays on Law and Government, Volume 1, Principles
and Values, Law Book Company, 1995.
[3] Ernst, J. and Glanville, L.,
Teaching resources developed for the Victoria University of Technology Bachelor
of Social Work, Melbourne,
1994.
[4] Keating, P., One
Nation Statement, AGPS,
1993.
[5] Commonwealth Government,
Justice Statement, May 1995 ,
p.109.
[6] Kenny, S., Developing
Communities for the Future: Community Development in Australia, Nelson,
1994, p.32.
[7] Noone, M. A.,
‘Mid-Life Crisis. Australian Community Legal Centres’, (1997) 22(1)
Alternative Law Journal
25-29.
[8] See, for example, Hodge,
G., Contracting and Government Services: A Review of International
Evidence, Montach, Melbourne; National Competition Council, National
Competition Policy: Some Impacts on Society and the Economy, 1999; Escott,
K. and Whitfield, D., The Gender Impact of CCT in Local Government, Equal
Opportunity Commission, Manchester,
1995.
[9] Ernst, J., Glanville, L.,
Herbert, B. and Williams, M., Contesting Quality!, Developing a Value Driven
Approach to Compulsory Competitive Tendering and Contracting Out, VUT, Outer
Urban Research and Policy Unit,
1994.
[10] Report of the
Independent Committee of Inquiry, National Competition Policy, AGPS,
1993, p.5.
[11] National
Competition Council, 1996, Considering the Public Interest under the National
Competition Policy, p.16.