The activist sector is upset at the Queensland and New South Welsh governments for ‘gagging’ Community Legal Centres (CLCs). The ALP — in its typical bandwagon fashion — has added its voice to the condemnation:
The Gillard Government recognises and values the important contribution of community legal centres.
“Insulting gag clauses are part of the Liberal Party’s DNA. They clearly have no respect for the independence of the not-for-profit sector,” said Assistant Treasurer, David Bradbury MP.
“Tony Abbott must publicly condemn the use of gag clauses by his Liberal state colleagues, otherwise Australians can rightly assume that, deep down, the Federal Coalition supports silencing the voice of not-for-profit organisations.” [Source]
Should we really be worried by these gags? Are they justifiable?
In order to work it out, you have to go right back to the start of the problem: legal services are expensive. It’s sometimes difficult to work out precisely why legal services are expensive as they are. You don’t need fancy equipment. You don’t need consumables. You just need a whole heap of people.
Crazily enough, you need the cost of legal services to be adequately high in order to reduce the amount of litigation. It’s a barrier to ensure that insane people don’t go completely batshit through the courts. At least, that’s the theory:
MR ROUT: Yes, OK. Now, as well it is intellectually bankrupt to think that the laws of this universe which comprise the numerical system are not the laws of this world, this country or the legal system. So I am applying the law of the numerical system and it has international ramifications because mathematicians say they can reduce everything to mathematical terms which means that people internationally are important to them. We have applied the law of the numerical system to defeat the criminal laws of countries overseas.
[BRENNAN CJ]: Mr Rout, what you are saying is still making no legal comprehensible sense.
MR ROUT: I am applying the law of the numerical – – –
HIS HONOUR: Just a moment, Mr Rout. I will give you three more minutes to make some proposition which has some relevance to the application of the law as it is understood by this Court. After three minutes I am not going to sit here and listen to other material.
MR ROUT: Two $5 notes exchanged for a $10 note is not a legal transaction unless a numerical system is the law. [Source]
That was in 1996. He was still clanging on about this in 2005:
KIRBY J: You are Theodore Rout and you are the applicant in the application for leave to issue a proceeding before the Court now?
MR ROUT: Yes.
KIRBY J: We have the written documents that you have placed before us. You now have the opportunity to advance some oral arguments. Do you understand you are limited in time?
MR ROUT: Yes, I do, yes.
KIRBY J: Very well, you proceed to advance the arguments you wish to put.
MR ROUT: Okay, I might point out that the High Court of Australia, the legal system and I are victims of a mythological peer review organisation that does not exist and is staffed by volunteer workers of which there are none. So I am responsible for more than just proving there is another set of dividing and multiplying by zero and that it is incorrect. I have also proven in 1993 that Einstein’s…..relativity is law. Now, all this data is related to, directly and indirectly related to, fusing of hydrogen which is….. I proved that the speed of light is alterable and controllable and I have delivered the evidence verbally in the Supreme Court on 29 August. I then went on in September last year to prove that time and the speed of light equal one another, such you alter one, you alter the other, and this in turn enables the altering of the speed of light within Einstein’s relativity.
Now, I am given no credit or recognition for any of my work at any time. I have proved in 1994 that energy is ceasing to exist naturally in the phenomena because it ceased to exist and in September 1994 I proved that energy can be created from nothing which in turn proves that nothing is of a…..state of energy. Now, I required to increase the speed of light within a fusion engine so as to fuse the four hydrogen atoms which I claim become susceptible to fusing through the increased speed of light. Now, I have given no credit to – – –
KIRBY J: Mr Rout, you are now in the High Court of Australia which is the highest court in our country and you are seeking to have the Court give you leave to proceed with an electoral petition.
MR ROUT: Yes.
KIRBY J: The Chief Justice dismissed the document you tendered for that purpose as unintelligible and everything you have said to date seems to me to confirm what his Honour said. What is your exact legal claim? We are a court of law, we are not an academic committee of scientists.
MR ROUT: Well, first of all, one of the reasons why this has been dismissed – and I do not believe that Justice Gleeson considers it to be unintelligible. I consider that he is simply being dismissive and I have suffered dismissiveness from a whole range and there is a number of documents in here, people dismissing me, such as the university telling me that if I come back to the law faculty, they will get security to remove me; Dr Dracoulis from the Nuclear Physics Institute or whatever at the university. [Source]
So we live in a society which is governed by laws, so access to legal remedies is a fundamental aspect of our society. But you need a way to keep the Theodore Routs of the world out of the High Court.
There are a few ways that this can be done. The approach taken by the Queensland and NSW governments is to reduce the costs of seeking legal services by establishing Legal Aid and then subsidising organisations which provide legal services (CLCs). The CLCs have limited ability to support nonsense like Rout’s, so the process of filtering out nutbags is effectively externalised to the CLCs.
Let’s change the conversation slightly. We live in a society where we think that you should be able to access medical services if you require them. If health services were funded the same way legal services were funded, governments would set up Health Aid and then subsidise organisations which provide health services. The result would be a predictable mess: under-resourced Community Health Centres trying to meet increased demand, and a two-tiered system of health (those who could afford to go elsewhere would do so).
But what if those Community Health Centres wanted to use the funding they received to provide services in order to start advocating for changes to the health system? Would tax payers be justified in arguing that they’re funded to provide health services, and not to start advocacy campaigns against government policies?
Thus we get to the ‘Principles for Funding of Legal Assistance Services‘. It outlines all the services on which taxpayer funds can be spent, then follows it up with:
3. In addition NSW Legal assistance services funded by Legal Aid and Public Purpose funding will not include activities which may reasonably be described as political advocacy or political activism. This may include but is not limited to:
(i) Lobbying governments and elected officials on law reform and policy issues (that goes beyond the activities described at principle 2(vii));
(ii) Public campaigning and advocacy, including use of traditional and social media and participating in rallies or demonstrations for causes seeking changes to government policies or laws;
(iii) Conducting workshops directed to political activism (that goes beyond the activities described at principle 2(v));
(iv) Providing representation or advice (other than initial legal advice as described at principle 1(iii)) to activist groups, lobbying groups and action groups. [Source]
Despite being called a ‘gag’, it’s clearly not. If the Community Legal Centre obtained funds in other ways, it appears consistent with these principles that they could engage in political debates (although the contracts signed with the CLCs might say something else). Taxpayers should be able to direct funding towards particular outcomes and restrict the ability of funds going to other causes. CLCs are funded by the government to provide legal services — not for advocacy. To add further weight, other organisations are funded to do advocacy.
Unfortunately, this is coming down to people discussing whether or not ‘gag’ clauses are incorrect instead of coming down to a discussion about whether this style of funding is appropriate. Should we continue to fund CLCs at all? Are CLCs just another symptom of the broken system? There are other funding mechanisms available to us (like an MBS scheme for legal services) and if the current mechanism is causing tension about the appropriate use of funds, perhaps it’s time to explore other options.