Chapter 11 - Community legal centres
Legal aid commissions
and CLCs are barely able to provide a human facade to an inhuman legal system.
CLCs and legal aid commissions have struggled to manage under the weight of
increased community demand, reduced levels of government support and increased
managerial demands. Access to free legal aid has been replaced by myriad
conditions, shifting guidelines, financial caveats and exclusions that cover
the provision of aid with the thick and sometimes impenetrable veneer of
bureaucracy.[743]
11.1
This chapter discusses the role of community legal
centres (CLCs) and the impact of current legal aid arrangements on their
operation.
Introduction
11.2
CLCs are not-for-profit, independent, community-based
organisations that provide a range of legal and related services, including
legal information and referrals, legal advice and assistance, and some limited
casework. CLCs also have a core role in providing community legal education and
engage actively in policy and law reform work.[744] They have also
tended to fill identified gaps in legal aid services in places of high need,
providing complementary but different services to those provided by LACs and
the private legal profession.[745]
11.3
There are over 207 CLCs in Australia[746] which
provide services to approximately 350,000 clients per year.[747] For the
most part, CLCs assist disadvantaged clients and client groups within the
community, namely those persons who cannot afford private legal representation
and who are unable to obtain legal aid funding in order to pursue legal avenues
available to them.[748]
CLCs are often the first point of contact for people seeking assistance or
their last resort when all other attempts to seek legal assistance have failed.[749]
The Third Report
11.4
The Committee's Third
Report found that CLCs tended to be the "bottom line" in the Australian
legal aid system and had to bear the brunt of increased pressures and workloads
as they try to pick up cases that are unable to be dealt with by LACs.[750] The
Committee also noted that there were real limits to the capacity of CLCs to
manage their increased workloads, given their limited funding and their
reliance on volunteer assistance.[751]
The Commonwealth's contribution to community legal centres
11.5
The Attorney-General's Department informed the
Committee that the Commonwealth Government will contribute approximately $20
million towards the Community Legal Services Program (the Program) in
2003-2004.[752]
The Program is funded by both the Commonwealth Government and state/territory
governments to deliver legal services to the disadvantaged in the community.[753] Over 100
CLCs are funded under the Program. The Program was described in the following
way:
Organisations are funded under the Program to provide legal
advice, casework, information and referrals, community legal information, and
to undertake law reform activities. Centres funded under the Program provide
both generalist and specialist community legal services. The majority of
community legal centres provide general legal advice in areas such as family,
civil and criminal law. These organisations provide generalist advice, advocacy
and representation across a wide range of legal issues, as well as
participating in community legal education and law reform, and encouraging
community participation in the legal system. Many centres involve volunteers
from their community in the administration, management and delivery of
services. [754]
11.6
The Attorney-General's Department submitted that the
Commonwealth's support for the community legal sector is driven by three
underlying principles:
-
community service providers best meet the needs
of their own communities;
-
harnessing the contribution of volunteers
provides community input to the provision of assistance; and
-
providing services early in a dispute helps keep
people out of court.[755]
11.7
The Department's submission also stated that after
consultation with stakeholders and peak representative bodies, CLCs funded by
the Commonwealth have moved from annual arrangements to three-year service
agreements. According to the Department, the new agreements give CLCs the
stability they need to plan for their futures and put long-term strategies in
place.[756]
11.8
Departmental representatives, when questioned about
decisions relating to the location of CLCs[757] and unmet
legal need in certain areas, told the Committee:
The department, together with the relevant state government and legal
aid commissions, has undertaken a series of reviews on a state-by-state basis
in relation to community legal centres. The New South Wales review is about to get under way. Those
sorts of issues of location of new centres are ones that have been dealt with
in those reviews on a state-by-state basis.
Essentially, the review
has Commonwealth and state representatives and community legal service
representatives. In some cases it also has what we would see as a public
interest representative. I think New South Wales has got that The review looks at a range
of issues, including demographics, and tries to identify areas of need in that
way but also takes submissions and is a public process from the point of view
of taking submissions.[758]
11.9 The representatives advised that Victoria, Queensland, SA and WA have completed their reviews, and these reviews were
supplied to the Committee. For example, the Victorian review stated that some
areas of metropolitan Melbourne and in regional and rural Victoria have little or no access to community legal
services.[759]
The WA review found that while CLCs are appropriately located and services are
aligned to need, key gaps in coverage exist in four regional areas and in
outer-metropolitan Perth.[760]
11.10
In relation to unmet legal need, the Department told
the Committee that:
The reviews have been
the mechanism in the last few years, although I think there is also a general
concern about regional areas. I think the committee has expressed similar
concerns today. So overarching the specific state-by-state reviews, which of
course happen at different times, there is an overall concern to look at where
there needs to be perhaps more regional support for community legal services.[761]
Impact of current legal aid arrangements on community legal centres
11.11
Evidence presented to the Committee indicates that
current legal aid arrangements are having a serious adverse affect on CLCs. As Mr
Sam Biondo of
the Fitzroy Legal Service told the Committee at the Melbourne
hearing:
The recent waves of CLC reviews and Legal aid reviews have done
little to contribute to a planned and orderly approach to meet community need
for legal services. They have been squandered opportunities. Opportunities have
existed in which planning and policy could have been developed, which would
have enhanced existing services, and considered ways of going forward, in
meeting legal needs in areas where there has been little or no service
provision.[762]
11.12
Particular problems experienced by CLCs are discussed
below:
-
increased pressure due to reduced availability
of legal aid;
-
staffing and operational issues.
Increased pressure due to reduced
availability of legal aid
11.13
The Committee received evidence that, while CLCs form
an important and unique part of legal service delivery within the legal aid
system, they are not alternatives to a properly funded legal aid system.[763] Rather,
CLCs should complement the broad range of legal aid services provided through
formal legal aid structures and the private legal profession to address legal
needs that might otherwise remain unfulfilled.[764] The South
West Sydney Legal Centre argued that CLCs have a vital role to play:
there is no doubt that CLC's constitute the most significant
vehicle to achieving national equity and uniformity through a network of
"branches" highly attuned to their respective community's needs.
Accordingly any consideration of current arrangements must protect the
integrity and enhance the capacity of CLC's.[765]
11.14
However, increasingly it appears that CLCs are expected
to pick up the shortcomings in the legal aid system where, for example, people have reached their legal aid "cap",
where they have a legal matter for which legal aid is not available, or where
they do not meet the means test despite being unable to afford a private
solicitor.[766]
The demand appears to be overwhelming many CLCs.
11.15
As the Federation of Community Legal Centres (Vic)
Inc argued:
Centres report an overwhelming level of demand for legal
services from people who are no longer eligible for legal aid, can not afford a
private solicitor, or have exhausted legal aid funding prior to their matter
being resolved. There is nowhere else for these people to go. The pressure on
centres results in them undertaking work that they are not resourced to do,
often to the detriment of legal education and policy work. Even then, centres
are unable to meet the demand for legal assistance.[767]
11.16
The Fitzroy Legal Service presented similar evidence:
The gaps in service provision arising from the inadequate
coverage of Victoria Legal Aid have over recent years been increasingly filled
by generalist and specialist community legal centres, the courts, private
practitioners doing pro bono work and self represented litigants. Because of resource constraints, which
include physical, human and financial, CLCs dont have the necessary capacity
to provide a comprehensive casework service. Centres are unable to always provide
representation in court or tribunal proceedings and can only do so in a
fraction of cases. [768]
11.17
The Legal Aid Commission NSW agreed:
There is no doubt that the decline in legal aid funding has
resulted in stark regional variations in the availability of legal aid, and a
corresponding increased burden on community legal centres and other community
organisations. Burnout is a serious issue for staff. The poor salaries paid to
CLC staff, which also impacts on the ability of CLCs to retain experienced
staff, only exacerbates this situation.[769]
11.18
The Hobart Community Legal Service noted that:
It has experienced significant increases in the number of people
presenting to [it] who have been denied legal aid. This results in enormous
pressure on those staff and volunteers who already have extremely high workloads.[770]
11.19
The Cairns Community Legal Centre argued that such a
situation would ultimately lead to reduced access to justice for a greater
number of people:
In the event that legal aid is not increased even greater
demands will be placed on already stretched CLCs to provide more services
across a broader range of areas of law, which in turn requires more staff, more
time for professional development and more funds. If these requirements are not
met, as is currently the situation, the service provided by CLCs will
ultimately become narrower and more reliant on referring clients to private
solicitors. If clients are unable to obtain legal aid and cannot afford private
solicitors their avenue to justice thus becomes extremely limited, if not non
existent.[771]
11.20
The Committee also heard evidence that coverage areas
serviced by individual CLCs are ever-expanding due to lack of legal services
generally:
Our office was
originally set up to cover the Blue Mountains greater government area but in
fact our area of influence has had to expand to cover Lithgow, which is a town
of about 5,000 people near the Blue Mountains, and as far as Bathurst, which is
a major centre about two hours west of the upper Blue Mountains. Bathurst is a town of about 20,000 people that does
not have a Legal Aid office, does not have a community legal centre and does
not even have a Womens Domestic Violence Court Assistance Scheme. So our area
of influence has had to expand because of a lack of services.[772]
11.21
The Committee received evidence that since changes by
the Commonwealth Government to family law funding arrangements in the late
1990's, CLCs have experienced an increase in demand for family law services.[773] Queensland,
for example, has 'experienced massive increases in the number of family law
clients presenting for legal help, clients who, in the view of CLC workers,
would previously have received assistance from Legal Aid Queensland.'[774] Further:
people with family law matters who now find themselves
ineligible for legal aid are presenting at community legal centres with
increasingly complex issues and problems. Such problems require significantly
greater resources than can be brought to bear by a CLC which previously would
have been able to provide an initial level of assistance before referring the
client to legal aid for ongoing assistance.[775]
11.22
CLCs are experiencing an increasing demand for
individual casework services from within the community, specifically in the
area of family law:
The demands are particularly high for representation in courts
and tribunals, where people have been rejected for a grant of legal aid, or aid
is not available in the area of need. Family law representation in general and
family law property matters have been cited as areas of increasing demand.[776]
11.23
This has serious flow-on consequences:
Because of the increased pressure on CLCs to meet family law
needs, there is now a reduced capacity for individual centres to choose to work
in other areas of law (for example, in consumer law) and therefore limited or
no opportunity for staff to develop competence in other areas of practice. For
staff of generalist CLCs there are particular concerns about the potential
de-skilling of staff and the effect that has on both professional development
and employee satisfaction levels. Such centres are now providing unprecedented
levels of assistance in family law matters but the assistance (by virtue of
resources) is limited to the provision of advice and, in some cases basic
document preparation. The work is intense and time consuming and leaves little
time for staff to focus upon other areas of law in which staff members might
have particular skills.[777]
11.24
There are also problems in relation to criminal
matters. For example, QAILS contended that:
At a practical level, Queensland
community legal centres are daily called upon by clients to provide guidance as
to their criminal matters in circumstances where they are ineligible for legal
aid or have been refused assistance. Again, community legal centres are not in
a position to fill the void created by inadequate funding of legal aid in
criminal law matters.[778]
11.25
QAILS also commented on the lack of legal services in
relation to administrative law matters:
Many Queensland CLCs undertake some level of administrative law
work Several CLCs work almost exclusively within the province of
administrative law, notably in relation to immigration, social security and
prison issues. Without exception, these specialist services are grossly
underfunded Each is mandated to provide "state-wide" services but
is barely funded to provide assistance to those in need within the south-east
corner of Queensland.[779]
Lack of funding
11.26
The Committee heard evidence of the funding crisis CLCs
face. The Fitzroy Legal Service argued that despite overall increases in the
Program's funding, existing CLCs 'have experienced significant erosion in real
funding levels over the last decade.'[780] The
National Association of Community Legal Centres (NACLC) noted that:
Almost all of the growth in the total quantum of funds for the
Commonwealth CLC program has been directed towards Program enhancements. While
conferring benefits on previously poorly-serviced groups and regions, and
contributing to better program management, these measures have not increased
the capacity of most centres to undertake their core work.
After adjustments for new activities have been made,
Commonwealth funding for community legal centres has increased by 2.45% per
annum over the five years from 1997 to 2002. During this same period, Average
Weekly Earnings rose by 4.5%. This discrepancy translates into 10.25%
cumulative shortfall in the already low base line staffing budgets of CLCs.[781]
11.27 At the Sydney hearing, Ms Elizabeth O'Brien from the National Association of Community Legal Centres said:
We have a number of
innovative programs throughout the community legal sector in Australia. We provide, as you will hear from all of
the states as you go around, a varying number of programs designed to ensure
that people can maximise the very small legal aid dollar. However, we have
arrived at a point where nobody in this sectorlegal aid commissions or
community legal centrescan do any more without further resources. We are now
absolutely maximised. For all the things we may put forward as possible
solutionsnew ways of doing things and new ways of seeing thingsthe basic
problem is that there is not enough money. The basic requirement is for more
money.[782]
11.28 In Melbourne, Mr Sam Biondo from the Fitzroy Legal Service told the Committee that CLCs were facing
a funding crisis:
While the Commonwealth
has allocated some new funds to CLCs, almost all of this has gone to new
activities, leaving existing centres to fall further and further behind. In
2001-02 almost half the community legal centres in Victoria received less than the level of funding accepted
as equivalent to three full-time positions. This is despite the high level of
demand and the need for centres to provide a range of legal services to
disadvantaged communities and to provide legal advice and information,
community legal education, community development and law reform.[783]
11.29
Mr Bill
Mitchell from QAILS told
the Committee that there are fundamental deficiencies in the consultation
process when the Commonwealth Government and state/territory governments
negotiate legal aid funding agreements. This has an inevitable flow-on effect
on CLCs:
It seemed to me and to
many others in our sector that, once the Commonwealth and the states could no
longer agree on the way in which legal aid funds should be spent in a kind of
combined or holistic manner, the actual way in which clients were dealt with by
a legal aid commission changed quite dramatically. One of the serious flow-on
effects of that was the widespread move or referral of clients from legal aid
commissions, where they would normally have been dealt with, to community legal
centres as a first point of call, rather than, as they had been in most cases
up until that point, a last point of call.[784]
11.30 Mr Mitchell argued that CLCs needed to be included in consultations:
One of our real
concerns is that, when large-scale agreements such as legal aid agreements
between Commonwealth and state governments are being renegotiated or, in fact,
reconceptualised at any level, there needs to be very widespread consultation
with the stakeholders who are most likely to feel the real brunt and effect of
the changes certainly the impact of the changes on community legal centres
has been, in my view, quite dramatic. However, because we are not really a part
of that system, we do not have particular knowledge about the way that worked
and the way that continues to work. We cannot really describe it in a way that
is accurate. We cannot really describe what exactly happened at that time or
what is happening now. We simply know that a very large increase in demand for those
sorts of services has been placed on community legal centres and that demand
was not as significant prior to the agreement breaking down.[785]
11.31 Mr David McKinnon of the Petrie Legal Service referred to a perceived lack of foresight
in the application of the service agreement between the Commonwealth, the
states and CLCs:
[T]he lack of
administrative funding for both the implementation of and ongoing compliance
with the new regimehave placed undue hardship on us. It needs to be borne in
mind that the new service agreement applies equally to all community legal
centres that receive Commonwealth funding. Petrie receive $6,000 from the Commonwealth, yet
we must comply to the same standards as a centre receiving $100,000. Such a
centre would undoubtedly have an existing administrative structure.[786]
11.32
The NACLC's August 2003 budget submission to the
Commonwealth Government for 2004-2007 recommended an increase of $23.561 million
over three years to CLCs. The submission stated that this is to increase funds
to existing CLCs across Australia,
target rural and remote services and the poorest-funded urban CLCs, and to
direct the rest of the money to the remainder of the CLCs in the Program.[787]
Staffing and operational issues
11.33
Several submissions and witnesses submitted that current
legal aid funding arrangements heavily impact upon CLCs in their day-to-day
operation. The Community Legal Centres Association (WA) submitted that, since
CLCs are funded at a range of levels depending on the funding model or formula
used for each particular CLC, staffing and overall operations of individual
CLCs are affected in different ways. Consequently:
any consideration of adequate funding of CLCs to ensure equity
of service to communities in different areas needs to take these funding models
into account.[788]
11.34 Many submissions argued that CLCs experience
particular difficulties in recruiting and retaining staff, particularly legal
staff.[789]
This is directly attributable to inadequate funding levels:
The staffing quality and retention of staff at CLCs is also
affected by funding levels and the resultant salaries and conditions that CLCs
are able to offer their staff. The increasing demands on staff to do more and
more casework but still continue their CLE and law reform objectives, also take
their toll, leading to worker stress and potentially worker burnout.[790]
11.35
Low salaries are a genuine concern to CLCs:
Centres report enormous difficulties in attracting and retaining
qualified staff, in particular solicitors. This is due to the poor wages, lack
of resources, overwhelming demand for legal assistance and work pressure. At full-time rates, a principal solicitor
with at least 5 years experience earns on average $46,200 in a CLC compared to
$75,000-$110,000 and increasing to $180,000 in private practice. However in
reality few centres can afford to employ solicitors full-time resulting in most
solicitors being employed part-time and earning well below $46,200.[791]
11.36
Ms Julie
Bishop of the NACLC told the Committee:
There are a number of
career paths, if you like, for people in CLCs. One of the submissions you have
received talks about the impact of the increased HECS obligation on CLCs to
recruit staff. That is because we regularly get fresh graduates. So fresh
graduates who have large HECS debts are not able to accept our wages, because
they want to pay off their HECS debts more quickly. However, there are some who
work with us anyhow. They stay for a few years: generally, the work is exciting
for them, it is interesting and they feel they are making a difference. They
know they are not making money, but they feel their work is worthwhilebut then
they have children or want to buy a house.[792]
11.37 Ms Bishop continued:
It is as simple as
that: there comes a point at which either they have a partner who earns a lot
of money and subsidises them or, if they are the major breadwinner, they have
to leave. A lot of our staff are at Legal Aid commissions in New South Wales, or they will go to tribunals, or they will
go into the private profession. Often they will then become volunteer
solicitors, so they will stay there is a very strong volunteer culture in
legal centres, and those who cannot afford to stay are regularly committed and
come back as volunteers. But as to coming back to work again: maybe if they won
the lottery they would. I do not know.[793]
11.38
The Legal Aid Commission NSW argued that rates of pay
for CLC lawyers should at least parallel those offered in the Commonwealth
Public Service.[794]
11.39
While it may be true that 'many people choose to work
at community legal centres because they prefer the diversity of work and the
philosophies that underpin the centres',[795] the
Combined Community Legal Centres' Group NSW argued that the fact that lower
salaries are generally on offer 'can only discourage people from staying in the
sector, particularly where they have family or other major financial
responsibilities.'[796]
The NNWLS agreed that the long hours
that CLC staff need to work to maximise the capacity of their CLC to provide
services often comes 'at the expense (financial and emotional) of the family of
the workers.'[797]
11.40
The CCLCG
submitted that:
Having attracted staff, CLCs then often face difficulties
retaining those staff members. High demands caused by a never-ending caseload,
and a lack of funding for paralegal support (the one-to-one administrative
support which is taken for granted in private practice) mean that many
solicitors face burn-out within a few years. In rural areas, travel to
outreaches or to visit isolated clients or courts, can also take its toll.[798]
11.41
High staff turnover has adverse consequences:
[It] is costly for an organisation in terms of the recruitment
process and possibly locum costs. Staff loss is also detrimental to the
communities serviced by the centre. Clients lose continuity, and relationships
of trust and confidence built up between disadvantaged communities and
particular workers are likely to be lost.[799]
11.42
The Committee also received evidence in relation to the
inadequacy of premises and resources for CLCs, in terms of space requirements,
basic facilities and research tools. For example, QAILS submitted that in the
experience of it members:
The stereotypical image of community legal centres as operating
from overcrowded and run-down premises using second rate office equipment is
regrettably not far from the truth [800]
11.43
QAILS submitted further that, in as many as half of the
CLCs in Queensland, lawyers are required to share office space and utilise
space such as storage rooms and gardens to conduct interviews with clients. QAILS
also noted that in most CLCs, basic heating and air-conditioning does not
exist:
I've interviewed clients in their cars because there's no room
in the office. In the summer it's better anyway because they have
air-conditioning.[801]
11.44
Mr Sam
Biondo of the Fitzroy Legal Service informed
the Committee that:
The condition of
centres offices is so notoriously bad that in 2002 a competition for the worst
office was held.[802]
11.45
QAILS argued that ' reasonable working conditions are
a necessary pre-condition to sustained delivery of high quality, accessible
community legal services.'[803]
Committee view
11.46
The Committee strongly believes that CLCs have a vital
role to play in helping to achieve a fairer and more effective legal aid system
that is available and accessible to all Australians. It is important that CLCs
are properly funded to enable them to provide services that can be responsive
to community need. The Committee considers the difficulties CLCs are
experiencing to be unacceptable. These difficulties appear to be a direct
result of inadequate levels of funding and increased demand on CLCs, caused by
restricted LAC funding. It is imperative that the Commonwealth and
state/territory governments acknowledge existing shortfalls in funding and
accept that a continuing deterioration in circumstances will inevitably lead to
a severe crisis for CLCs.
11.47 The
Commonwealth Government and state/territory governments should act to ensure
adequate baseline funding for CLCs to
enable them to attract and retain suitable staff, and to have appropriate
facilities and resources to adequately perform their functions. There should
also be an allocation of additional funding for new CLCs in designated areas of
need. The Commonwealth Government and state/territory governments should engage
in ongoing consultation with LACs and CLCs in order to accurately ascertain the
particular problems experienced by CLCs and in order to identify areas where
improved service provision is most needed.
11.48 The Committee acknowledges and endorses the
27 recommendations contained in the submission from QAILS[804] in relation
to how CLC funding should be enhanced. The Committee supports such
recommendations as, for example, recognition that there are increased costs
associated with CLCs providing legal services to people living in RRR areas;[805]
acknowledgment that CLCs are unable to provide their staff with basic and
necessary training to upgrade skills and remain abreast of legal changes;[806] and the
provision of funding for a study to be conducted by the National Association of
Independent Legal Services into the levels and types of workplace stress and
burnout for staff, and potential methods of reducing or alleviating such
conditions.[807]
Recommendation 58
11.49
The Committee recommends that the Commonwealth
Government, state/territory governments, legal aid commissions and community
legal centres should engage in collaborative research to accurately determine
the extent to which current legal aid funding arrangements impact upon the work
and operations of individual community legal centres.
Recommendation 59
11.50
The Committee recommends that the Commonwealth
Government urgently consult with state/territory governments, legal aid
commissions and community legal centres to determine the needs of individual
community legal centres and develop strategies for addressing these needs.
Recommendation 60
11.51
The Committee recommends that the Commonwealth
Government should take a lead role in recognising and overcoming the
diminishing capacity of community legal centres by, for example, providing
increased levels of funding to enable community legal centres to better perform
their core functions, and establishing new community legal centres to ease some
of the burden on existing community legal centres and to address unmet legal need.
Recommendation 61
11.52
The Committee recommends that the Commonwealth
Government and state/territory governments should provide additional funding to
enable community legal centres to recruit, train and retain staff, through
adequate remuneration, skill development programs and improved employment
conditions.
Recommendation 62
11.53
The Committee recommends that the Commonwealth
Government and state/territory governments should provide additional funding to
enable community legal centres to overcome existing operational difficulties,
such as inadequate premises, facilities and resources, and enable them to
better plan for such requirements in the future.
Policy advocacy
11.54
A final issue raised with the Committee was the impact
of the exposure draft of the Charities Bill. The draft, released on 22 July 2003, is intended to codify
the existing common law meaning of a charity and expand it to encompass certain
child care organisations, self-help bodies and, closed or contemplative
religious orders.[808]
Sub-clause 8(2) of the bill provides that a
body will not be considered as a charity if it were to undertake activities
that 'seek to change the law or government policy'.
11.55
The CCLCG was concerned that if the exposure draft were
to become law, community legal centres who advocate policy change on behalf of
their clients or members would not be considered a "charity", would
lose taxation concessions and therefore may not be able to function:
Loss of [fringe benefit tax and income-tax exemptions] would
have a devastating impact on the already under-resourced state of community
legal centres.[809]
11.56
The CCLCG argued that:
Peak organisations such as the Combined Community Legal Centres
Group are most at-risk under this proposed legislation. If CCLCG lost
charitable status, the reduction in funding would seriously undermine our
capacity to contribute to Senate Inquiries such as this one
Systemic advocacy, including law reform initiatives and lobbying
of governments on behalf of our client groups, is part of the core business of
community legal centres. Indeed, advocacy and lobbying for law reform are
essential elements of any democracy. [810]
11.57
The Committee notes that the Board of Taxation's report
on the consultation on the definition of a charity was submitted to the
Treasurer on 19 December 2003.
The report was released publicly on 11
May 2004 when the government announced its response.[811] The
Government's response indicated that it had taken advice from the Board of
Taxation that the draft legislation did not achieve the level of clarity and
certainty that was intended to be brought to the charitable sector. As a
result, the Government announced that it had decided not to proceed with the
draft Charities Bill. The response indicated that, rather than introducing a
legislative definition of a 'charity', the common law meaning would continue to
apply, but the definition would be extended by statute to include certain child
care and self-help groups, and closed or contemplative religious orders. The
Government stated that it intended to introduce legislation to give effect to
this proposal as soon as practicable.[812]
Committee view
11.58
The Committee notes that the Government has decided not
to proceed with the draft Charities
Bill. However, the Committee is nevertheless concerned that community legal
centres should not be prevented from providing advocacy policy services.
Non-profit organisations that advocate law reform on the basis of their
experience are an invaluable source of information for government to make
informed and balanced policy decisions. Additionally, community legal centres
are closest to areas of community need and their input into policy development
is essential to formulate balanced policy and check that its implementation
achieves the policy aims.
Recommendation 63
11.59
The Committee recommends that any legislation in
relation to the definition of charities ensure that organisations involved in
the provision of pro bono legal services are not prevented from providing
advocacy policy services.
Senator the Hon. Nick Bolkus
Chair