Several years ago, American animal protection lawyer Bruce Wagman assisted People for the Ethical Treatment of Animals in a claim against the California Milk Advisory Board. PETA argued the Board’s 'Happy Cows' advertising campaign, which depicted dairy cows in idyllic pastures, misled consumers about the real conditions of cruelty in which dairy cows are raised. The courts dismissed the claim on a technical point without considering the merits, but the case served to educate the Californian public about cruelty in industrial farming.

Bruce Wagman shared this story, and a number of other stories about the animal protection cases he has litigated in the United States, in a capacity crowd event on 14 May 2024 at the offices of Mallesons Stephen Jaques. It was at this event that PILCH officially launched its new pro bono animal law service, PALS@PILCH.

Why is PALS@PILCH necessary?
As in the United States, animal laws in Australia fail to fulfill their stated aim of protecting animals from cruelty. Instead, a raft of exceptions and exemptions guarantee that most animals are entirely unprotected by the cruelty statutes. For those animals who remain protected, the enforcement mechanisms are poor and sentences are manifestly inadequate.

Accordingly, PALS@PILCH was established to:

• improve access to legal advice and representation to animal protection organisations and individuals committed to animal protection to advance animal welfare through the legal system; 
• increase public awareness of the need for better animal protection;
• ensure that existing animal welfare legal protection mechanisms are enforced; and
• mobilise the legal community around animal welfare as a legitimate public interest issue.

PALS@PILCH aims to undertake policy and law reform work on significant animal welfare issues, participate in matters of public debate on animal law, and refer case work to pro bono lawyers at member firms. 

In launching PALS, Guy Donovan, the PALS project officer, commented that the program will complement the range of other pro bono and public interest services coordinated by PILCH and will respond to the growing interest among lawyers in pro bono animal law work.

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^{- David Glasgow, PILCH Secondee Solicitor}

After the death of three horses at the Warrnambool racing carnival in early May, jumps racing became a hot political issue in Victoria. Much of the general public became outraged by images of fallen horses collapsing onto racetracks. Major animal welfare organisations such as the RSPCA and Animals Australia campaigned against it, and the Board of Racing Victoria arranged a meeting to discuss whether to implement a ban on the sport. Unfortunately, the Board decided to continue jumps racing, but the fight to end it will continue.

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Since the 1975 revolution that ousted the 500-year old royal kingdom of the land of ‘Lane Xang Hom Khao’ (the Kingdom of ‘One Million Elephants under a White Parasol), the Lao People’s Democratic Republic has largely operated under a punitive legal system consisting almost exclusively of the Courts, prosecutors and judges strictly enforcing criminal and other sanctions.

However, since the government commenced a process of development on the path to a market economy and graduation from Least Developed Country status in the early 1990’s, the importance of an operative private bar as a means to protecting rights (whether contractual, property, individual or otherwise) has exploded.

The Lao Bar Association (LBA) is the sole professional association that regulates and supports all Laos lawyers (being all non-government legal officers). Indeed, it is the sole legal body in Laos outside of the government.

Thanks to the support of PILCH, it is here at the LBA that I am fortunate enough to be working as a Project Officer for 12 months through the AusAID Australian Youth Ambassadors for Development program.

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^{- Chris Sibree, Lao Bar Association
To read more about the Lao Bar Association: www.laobar.org. If you legal firm or organisation could provide any training, materials or assistance to the LBA, please contact: chris@sibree.net.}

A recent decision of the Federal Court of Australia has dealt a blow to public interest litigants and highlighted the need for the codification of laws to protect public interest litigants from adverse costs orders.

In Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466, the FCA held that there is no general exception that enables a public interest litigant to avoid an unfavourable costs order, and that ‘something more’ is needed to justify a departure for the ordinary costs rule (that costs follow the event). Lawyers for Forests (LFF) had unsuccessfully challenged a decision of the Minister in relation to the Gunns Ltd pulp mill in Tasmania and argued that the circumstances of the case warranted a departure from the ordinary costs rule because:

• LFF was seeking to enforce the objects of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
• the litigation was in the public interest
• there were exceptional and special circumstances, including that the case concerned untested provisions of the Act
• LFF is a non-profit organisation, carrying out activities useful to the community, and
• an adverse cost order might result in the winding up of LFF.

However, the FCA rejected LFF’s arguments, following the High Court’s decision in Oshlack v Richmond Rover Council (1998) 193 CLR 72 where the characterisation of a case as ‘public interest litigation’ did not of itself constitute special circumstances warranting a departure from the ordinary rule as to costs; ‘something  more’ was needed. In this matter, the FCA said LFF’s arguments, even when pulled together, lacked strength.  Justice Tracey said that ‘it is necessary for an unsuccessful party who wishes to obtain a more beneficial costs order to point to particular aspects of the litigation which warrant the orders sought.’

In PILCH’s view, decisions like this serve to highlight the barriers to litigating matters where there is genuine public interest in doing so, and may act as a disincentive to community organisations seeing to enforce fundamental rights and challenge controversial decisions. While the Court retains a discretion to depart from the usual costs order, it is clear that the Courts are reluctant to do so and that the ‘public interest’ is not in itself sufficient to warrant departure, even in cases (such as the Gunns pulp mill) where there is significant community concern.

PILCH is presently lobbying the Commonwealth and State Attorneys-General to codify the ability of courts to make protective costs orders in defined circumstances. Our submission can be accessed through our website.

For a brief summary of the Lawyers for Forests costs decision, please see our website. For a copy of the decision please see:  http://www.austlii.edu.au/au/cases/cth/FCA/2009/466.html.

The prevalence of mental illness within prisons is largely undocumented and often remains unrecognised. The number of prisoners whose legal and other issues are further compounded by mental illness is startling. Inside Access, a new prisoner service launched by DLA Phillips Fox and the Mental Health Legal Centre in March 2009, aims to raise awareness amongst the legal profession of the legal and other needs of prisoners who experience mental illness.

Inside Access aims to provide a legal service to a group that is under-represented in the community and whose needs would otherwise remain unaddressed. An important function of Inside Access is to ensure that prisoners who have a mental illness receive humane and proper treatment and care. It also aims to further law reform in this specialist area of mental health. Integral to this aim is a recognition of the fact that prisoners with a mental illness face difficulties in access to the law on multiple levels; not only having a mental illness that may hinder their ability to assert their rights at law, but also fighting for access to the law within the confines of the criminal justice system. Inside Access aims to provide a voice to these people so that their often multi-faceted and complex issues may be addressed.

Members of DLA Phillips Fox's Melbourne office attend the Mental Health Legal Centre once a week and conduct a free and confidential legal service via telephone aimed at prisoners in Marrmak, a Specialist Mental Health Service in Dame Phyllis Frost Prison. It is envisaged that Inside Access may be conducted through visits to the Dame Phyllis Frost Prison in the future.

The main legal needs addressed by Inside Access at present include administrative law appeals, debt matters, residential disputes, guardianship and administration, family law and child custody, judicial reviews, inquests and other human rights issues.

Inside Access is a first for Victoria and DLA Phillips Fox and the Mental Health Legal Centre are excited to be able to cater for the legal and other needs of a group that would otherwise remain unrepresented.

^{- Dylan Burke, DLA Phillips Fox
For more information regarding Inside Access please contact Alice Skipper (9274 5073) or Dan Creasey (9274 5210) at DLA Phillips Fox or Sam Sowerwine or Vivienne Topp at the Mental Health Legal Centre (9614 1122).}

Walk for Justice 2009
Over 300 walkers attended the second annual Walk for Justice in Melbourne, accompanied by Chief Justice of the High Court the Honourable Robert French and PILCH staff members. Coinciding with Walk for Justice events held in Sydney and Brisbane, it raised much needed funds for PILCH organisations and their various legal assistance schemes in Victoria, New South Wales and Queensland.

In a letter to PILCH, The Attorney General expressed his support for the Walk, saying that he is “proud that Victoria has a strong culture of supporting pro bono work and continues to be the leading provider of free legal services in Australia”.

PILCH will use the funds raised in its ongoing efforts to further the public interest, improve access to justice and protect human rights. PILCH would like to thank its Patrons, the Honourable Robert French, the Honourable Rob Hulls MP, Attorney-General of Victoria, the Honourable Justice Michael Black, Chief Justice of the Federal Court of Australia, the Honourable Justice Diana Bryant, Chief Justice of the Family Court of Australia, Magistrate Ian Gray, Chief Magistrate of the Magistrates Court of Victoria, the Honourable Mark Dreyfus MP, Federal Member for Isaacs, John Digby QC, Chairman of the Victorian Bar Council, and Bevan Warner, Managing Director of Victoria Legal Aid. PILCH would also like to thank the County Court of Victoria and all those who participated for making the Walk a success.

 Read more

Targeted legal services for women at new Homeless Persons' Legal Clinic
On Tuesday 16 June the HPLC opened its 14th outreach location, a targeted service for women and their accompanying children, at the St Kilda Crisis Contact Centre in conjunction with its family violence outreach team.

The impetus for this outreach clinic came from a report the HPLC released in late 2007 in relation to the legal need of women (and accompanying children) who are homeless or at risk of homelessness as a result of family violence. The report found that there is a substantial amount of unmet legal need amongst vulnerable women in relation to ‘post crisis’ issues such as credit and debt, tenancy, and infringements. The report also found that over 70% of the HPLC’s clients were male. This statistic does not properly reflect the demographics for the homeless population.

As a result, the major recommendation coming out of the report was that the HPLC establish a targeted legal outreach clinic for women. The new clinic will provide the same types of services that the HPLC normally provides, but to do so in a way that is specific to women. Legal services are available every Tuesday (appointment or drop in) between 12pm and 3pm at the St Kilda Crisis Contact Centre.

Insurance policy opens door to in-house pro bono

The launch of a new professional indemnity insurance policy by the National Pro Bono Resource Centre has paved the way for government and in-house lawyers to engage in more pro bono work.

Two major impediments – professional indemnity (PI) insurance and practising certificates – have typically restricted the ability of these lawyers to engage in organised pro bono programs, thus limiting the amount and sort of pro bono work that can be undertaken. But from July 1, a new policy held by the National Pro Bono Resource Centre will insure government and in-house lawyers to work on pro bono projects that have been approved by the NPBRC, where an existing insurance policy does not cover the work.  For example, in-house lawyers may initiate or develop a project themselves, or may work on projects referred by services such as PILCH.  There is no expense to lawyers associated with the scheme, because the NPBRC pays the policy premium and will cover any excess payable on a claim.

The inception of the policy has lead regulators in many jurisdictions to examine practising certificate restrictions. New South Wales, for example, has recently expanded its rules to allow lawyers under all categories of practising certificate to provide pro bono services on projects approved by the NPBRC. PILCH is actively lobbying Victorian regulators to make similar changes. For more details on the policy, see http://www.nationalprobono.org.au/page.asp?from=8&id=236

PilchConnect Training
PilchConnect continue to draw upon the broad expertise of its member law firms to provide legal training seminars for not-for-profit (NFP) community organisations. The next seminar is being hosted by Clayton Utz, on the topic: ‘When things go wrong, an organisation’s responsibility for injuries to, and acts of, its employees and volunteers’. This seminar for NFP organisations will be held on Tuesday 14 July 2009.

PilchConnect, in conjunction with VCOSS, is currently presenting governance training, entitled: ‘Board Members: Roles, Responsibilities, Liabilities and Protections’ in regional areas across Victoria. We recently ran this well-attended training in Wangaratta and Warrnambool, reaching a wide range of NFP groups in those areas. The next session will run in Castlemaine on Tuesday 4 August 2009. Further details are available via the PilchConnect section of the website .

Further details are available via the PilchConnect section of our website.

LIVLAS recruitment drive
Due to an urgent need for solicitors to assist pro bono in migration matters, LIVLAS has carried out a recruitment drive that has included liaising with members of the LIV Migration Law and Refugee Law Reform Committees and approaching migration law firms that are LIV members directly. As a result, 7 new law firms have registered - but LIVLAS is still in need of more. LIVLAS is also reviewing a recruitment drive in other areas of law where the legal need is apparent based on our inquiry and referral intake.  

Stories from the Frontline: The Legal Fight Against the Death Penalty
As part of Law Week 2009, PILCH and Reprieve joined together to present a seminar on the work of Melbourne lawyers who are involved in providing pro bono legal assistance to people facing the death penalty in Asia and the USA. 

The seminar took the form of a lively panel discussion involving barrister Julian McMahon, who has acted in a number of death penalty cases in Asia; Freehills lawyer and linguistic and cultural adviser to the ‘Bali 9’ case, Joel Backwell; and Matt Goldberg, a trainee lawyer with Robert Stary & Associates and recent Reprieve intern in New Orleans.  The panel was moderated by Rachel Walsh, current President of Reprieve, who also shared her stories of volunteering with Reprieve in the US.

The panellists discussed a wide range of issues, including how they came to be involved in anti-death penalty work; the role of the Australian government in anti-death penalty advocacy; the impact of religion in death penalty cases in Asia and the USA; and the changing views towards the death penalty in both jurisdictions. 

The panel was an inspiring and engaging insight into the work Australian lawyers are doing “on the ground” in anti-death penalty cases worldwide.  All panellists encouraged those committed to the abolition of the death penalty to lobby the Australian Government to fully implement its obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights.  See PILCH’s submission to the Australian Federal Police Review of Death Penalty Guidelines here.

Done by Law, 3CR radio, 16 June 2009. Caroline Adler, HPLC Manager & Principal Solicitor, talks about the opening of the HPLC's 14th outreach clinic, a specialist service for women and their accompanying children. Done by Law podcasts can be downloaded from www.donebylaw.org

Money should be no barrier to pursuing a worth cause, The Age, 11 June 2024
Lucy McKernan, Public Interest Law Scheme Co-Manager, and Brendan Sydes, Principal Solicitor of the Environment Defenders Office, discuss the issue of costs orders in public interest litigation. Read online.

New response to old problem, Law Institute Journal, June 2009. Seniors Rights Legal Clinic Manager Susannah Sage Jacobsen and Policy Officer Dahni Houseman discuss the specialist legal clinics for older Victorians and the hidden issues of elder abuse.  

Speak up so others listen, The Big Issue, June 2009
HPLC Consumer Advisory Group member Daren W tells The Big Issue why homeless people need to be heard in the national debate about human rights.

Right Now Radio, 3CR radio, 28 May 2009. Simone Cusack, Public Interest Lawyer, talks about her involvement in the World Health Organisation's Project on Sexual Health and Human Rights.

Done by Law, 3CR radio, 19 May 2009. Guy Donovan, PALS project officer, talks about the new animal law service PALS@PILCH. Done by Law podcasts can be downloaded from www.donebylaw.org  

SBS World View, SBS radio, 8 May 2024
HPLC Lawyer Chris Povey, along with Liz Turner from Student Housing Action Collective (SHAC) and Kate Shaw from Melbourne University; speaks to SBS about how the rental crisis is affecting university students. Download the podcast.

Fire gave victims no chance, ninemsn, May 2009. Acting Executive Director Mat Tinkler is interviewed by ninemsn about the bushfire Royal Commission. Watch the video online.
Mat Tinkler has also been interviewed by The Australian, The Herald Sun, The Brisbane Times, ABC online and Perthnow in relation to the Royal Commission.

National Human Rights Consultation
Earlier this month PILCH made a number of substantial submissions to the National Human Rights Consultation informed by our significant pro bono legal work advising disadvantaged clients. PILCH's submissions argued that the elderly, people experiencing homelessness, refugees and other marginalised and disadvantaged groups will continue to experience significant human rights violations unless the Federal Government enacts a Human Rights Act.

PILCH also recognised that a Human Rights Act will not, of itself, address all of the inadequacies of the current system, and argued that any such Act must be accompanied by a range of other measures, including investing in human rights education; improving access to justice; and, leveraging the Government’s significant purchasing power to promote human rights-friendly practices.

View the submissions here.

VCAT Review
In June 2009 the Homeless Persons’ Legal Clinic (HPLC) and Seniors Rights Victoria (SRV) completed a joint response to the Review (the Review) of the Victorian Civil and Administrative Tribunal (VCAT). The joint response recognises that even though the ‘lived experiences’ of HPLC and SRV clients are diverse in many ways, both groups are often seriously affected by VCAT decisions.

People with an experience of homelessness and older Victorians are most likely to interact with VCAT processes and decision-making through the Residential Tenancies List and the Guardianship and Administration Lists. In both of these lists, the impact of VCAT orders on the lives of disadvantaged individuals can be far-reaching and lead to, for example, their eviction from stable housing or the removal of day-to-day decision making ability.

The HPLC and SRV are principally concerned to ensure our clients have access to justice at VCAT. We consider the Charter of Human Rights and Responsibilities Act 2006 and the rights to equality before the law and to a fair trial are critical measures of whether older Victorians and people with an experience of homelessness actually have that access. Our submission makes a number of recommendations including the need for measures to track the ways in which disadvantaged clients move through VCAT, the need for a case management system for disadvantaged clients similar to the Magistrates’ Court ‘CISP’ program, the need for measures of the quality of decision making by the Tribunal and a more comprehensive scheme for taking special circumstances into consideration.

View the submission here.

Access to Justice Inquiry - PILCH
In March 2009 the Australian Senate Standing Committee on Legal and Constitutional Affairs invited submissions in relation to its inquiry into access to justice in Australia.

PILCH considered it important that it submit to the inquiry, having regard to its interest in improving access to justice and the legal system in Australia.  In its submission PILCH emphasised the significant contribution of pro bono legal services in providing legal advice and representation for those who may not otherwise have access to a lawyer.  PILCH highlighted the fact that, whilst pro bono plays an important role in providing legal assistance, it cannot be regarded as a substitute for adequate legal aid and CLC funding. PILCH’s submission addressed a number of barriers to accessing justice, including:

• funding cuts to Legal Aid;
• the effect of Commonweath restrictions on Legal Aid funding (which mandate that Commonwealth funding only be used for matters that engage Commonwealth law);
• the difficulties faced by those living in rural, regional and remote areas in accessing legal representation and the legal system;
• the difficulties faced by self represented litigants;
• the adequacy of funding and resourcing to Community Legal Centres
• the barriers to individuals and not-for-profit organisations bringing public interest litigation (such as the risk of adverse cost orders); and
• the use of SLAPP (Strategic Litigation Against Public Participation) writs to suppress adverse public debate.

The Committee intends to provide its report on the Inquiry by 17 August 2009. PILCH’s submission can be viewed here.

Access to Justice Inquiry - PilchConnect
PilchConnect also made a submission to the Access to Justice inquiry. The PilchConnect submission called for the Committee to give consideration to the access to justice issues currently faced by the not-for-profit (NFP) community, particularly within small to medium organisations that are heavily reliant on volunteers and often lack the resources to be able to afford legal advice.

The submission also urges the Committee to support moves for regulatory reform for the NFP sector to reduce the regulatory burden on NFP organisations in line with the recommendations made by the 2008 Senate Economics Committee Report on Disclosure regimes for charities and not-for-profit organisations.

Rise in defaults in body corporate payments as credit crisis grips
Law Institute of Victoria Legal Assistance Scheme (LIVLAS)

LIVLAS has observed a disturbing increase in applications for assistance from people experiencing difficulties paying body corporate fees. People on lower incomes unable to afford larger homes on a separate title may struggle to pay body corporate fees as other costs of living rise along with unemployment rates. Failure to meet these payments can potentially result in homelessness for vulnerable unit owners. The problem is compounded by the conduct of at least one body corporate management company which induces unit owners into paying arrears on the understanding that the payment will be in full and final settlement of the debt. Once the arrears are paid in what the owner believes is in settlement of the claim, the body corporate manager then pursues the unit owner for significant legal costs and expenses, causing further distress after an often protracted and ongoing dispute with the body corporate. If it were not for the assistance provided by LIVLAS firms, individuals in this situation would have nowhere to turn for assistance.

Assistance to Environmental NFP
PilchConnect was recently contacted by a small not-for-profit environmental organisation (NFP). The NFP negotiated an agreement with a corporate organisation to provide them with a significant amount of money to undertake environmental projects and work, and sought advice regarding how the money was to be characterised for tax (primarily GST) purposes. Maddocks kindly agreed to accept referral of this matter on a pro bono basis and provided the NFP with prompt advice so that the agreement could be finalised, and the NFP could receive the money. The NFP client was particularly pleased with the advice as it was written in a way that would help them in relation to future decisions about GST. 

The issue of the tax treatment of money raised by a community organisation is a common legal issue faced by many small NFP organisations. This issue was the subject of a recent PilchConnect seminar by Freehills lawyers (‘Tips for complying with fundraising and tax laws’) and PilchConnect will shortly update its website to provide all NFPs with more information about the tax treatment of the various ‘types’ of money it may receive - eg. gifts, grants, sponsorship.