Written by first prize winner of Dennaoui Lawyers Student Awards: Aya El Kady
To the surprise of many, Australia does not have a constitutionally entrenched right to legal representation. However, the High Court in Dietrich v The Queen affirmed that a right to a fair trial is a ‘fundamental prescript’ of the law of this country, that is contingent upon accessing a competent lawyer. Despite the importance of legal representation, many Australians are barred by socio-economic barriers, rendering them helpless before the law that supposedly seeks to protect them. In filling this this gap, Community Legal Centres (CLCs) provide an essential service to the most vulnerable members of our social fabric under the banner of access to justice. Unfortunately, in the wake of COVID-19, many already over-burdened and under-funded CLCs will struggle to meet the increased demand for legal assistance, particularly in the areas of tenancy, employment and family law. This has concerning consequences for CLC clients as they may be abandoned during their battle against the repercussions of this pandemic, alongside their pre-existing tribulations.
THE UTILITY OF CLCs
In mitigating against the structural inequalities which are often inherent and institutionalised in the justice system, CLCs seek to achieve access to justice by providing high-quality, free legal advice in order to safeguard the rights and interests of all Australians. Prior to delving into how this may be undermined by the pandemic, we must first unpack the efficacy of CLCs.
A – CLCs provide a Broad Scope of Legal Assistance
CLCs provide a myriad of assistance, in several areas including but not limited to, credit and debt, family, criminal, consumer, migration, tenancy and employment law. These localised and independent community-based organisations are scattered across Victoria, with 28 specialist centres; 20 generalist centres; and 10 rural centres. By providing such broad assistance, CLCs bridge the gap between those who are are unable to afford a private lawyer, but are also ineligible for Victoria Legal Aid (VLA), since the latter dedicates the majority of its resources towards criminal matters. Last year alone, CLCs heard a total of 84,260 matters, including: 16,260 Family Violence Intervention Order matters; 8,240 child custody matters; 3,650 credit, debt and mortgage matters; 2,550 employment law matters; and 2,870 housing matters. These figures illustrate the safety net that CLCs provide to 84,260 matters which would have otherwise fallen through the cracks of our justice system.
B – CLCs mitigate against harm and foster strong community relations
CLCs also ensure that one’s financial status, disability, educational level, region, culture or mental health status is not a barrier to their full and fair engagement with the justice system. The price of unaddressed legal issues can be costly, both tangibly and intangibly, causing financial strain, bankruptcy, physical ill-health, psychological distress and increased susceptibility to homelessness. These general risks are exacerbated for CLC clients as they are already experiencing some form of disadvantage. In addition to mitigating against individual harm, CLCs also provide significant economic value to the State. The corollaries of unaddressed legal dilemmas tend to generate costs which are born by the State, both within the justice system itself, as well as other publicly funded spheres. This is manifested through strains on health, child protection and other government-funded welfare services, such as the current COVID-19 supplement packages. In a similar vein, CLCs also weave strong community relations, through their connections with other organisations in the community service landscape, such as financial counsellors, social workers, as well as substance dependency treatment clinics. The community-oriented nature of CLCs is exactly what is required in to rebuild our nation from a grassroots level, once the pandemic has ceased.
THE REPERCUSSIONS OF COVID-19
The pandemic has clear financial, economic and social impacts on Victorians, creating significant areas of demand for legal assistance. In light of government announcements, there remains prevalent uncertainty regarding legal rights and obligations, especially within the realms of residential tenancy, employment, civil, family and social security law. Unfortunately, the demand for assistance will remain at elevated levels during the post-crisis recovery period, as restrictions and stimulus packages come to an end, yet financial and economic pressures still exist.
A – Employment Law
With mass redundancies, unpaid wages and leave entitlements, workers are left feeling isolated, and businesses are bewildered when it comes to their obligations in supporting their workers. Illustrating the unprecedent increase in demand for legal assistance, Jobwatch reported, in comparison from March to April last year, an increase of 83.1% of calls to their legal advice hotline, and 928% more hits on its website. The thread of commonality behind their callers’ concerns were in relation to redundancy entitlements, the validity of stand downs (especially if the employer’s business is still in operation), and a forced reduction of working hours.
B – Tenancy
A flow-on effect from employment instability is the inability to meet rental payments. Whilst the national cabinet has announced an eviction moratorium, the current law is ridden with exceptions and uncertainties regarding landlord-tenant obligations. With the risk of eviction still looming over tenants, and the ambiguous legal position on pre-issued notices to vacate, possession orders and warrants of possessions, the limited security provided to tenants by the moratorium is undermined. This concern regarding tenancy matters is exemplified by Peninsula Community Legal Centre, which reported, during 25 January to 20 April 2020, a 79% increase in VCAT matters, 43$ increase in duty advocacy service, and 18% increase in opened cases. Similarly, Tenants Victoria has also conveyed their unprecedented an increase of 350-400% in website traffic, and 150% more requests for legal assistance.
Individuals facing housing security without recourse to tenancy law advice will render them more vulnerable, increasing the disproportionate power imbalance between landlords and their tenants. Renters who are unaware of their rights may fall victim to unlawful action by landlords, such as eviction notices or refusals to pay for necessary repairs or maintenance. These consequences are grave, and may even push tenants to homelessness. The rapid increases in the demand are likely to outlive the 6-month moratorium, illustrating the concerning impacts of COVID-19 on tenant stability, and the continuing struggle to provide adequate assistance by CLCs already struggling to make ends meet.
C Family Violence
It is no surprise that family violence rates have soared, with victim-survivors being chained at home with their perpetrators during social isolation. With the increased control that abusers have over the kerbing of their partners movements, victim-survivors are less able to flee and gain access to support services. This sad reality is not unique to COVID-19, as studies have shown a strong correlation between family violence and national disasters. During the Black Saturday bushfires, frontline family violence workers reported an overwhelming increase in reports from 15.9% to 47.5%, all in the span of one week. The underlying factors mirror those stemming from this pandemic, being decreased financial, housing and employment security, as well as the reversion to strict general norms as a crisis management response, in which female partners are subordinated by their male partners.
In order to support victim-survivors, the government has announced an increase in $40.2 million in funding for domestic violence support services, as well their exemptions from observing the restrictions declared pursuant to Victoria’s ‘state of disaster’ status. However, even if survivors are successful in leaving their abuser (which is their most vulnerable stage as they are rendered more susceptibile to domestic homicide) they are likely to hit a dead end, as the funding increase has not extended to CLCs providing urgent family violence legal assistance. The Australian government has in fact decreased funding by $34.83 million (between 2017 and 2020) under the National Partnership Agreement on Legal Assistance Services. With the lifeline of CLCs being cut, the symbiotic relationship between the community legal sector and community organisations is threatened. Many domestic violence support services are heavily reliant upon CLCs to undertake urgent casework for their victim-survivors. However, once a victim musters up the courage to leave and seeks shelter in a support centre, she will be faced with many legal battles which are simply beyond their scope of assistance, such as filing an intervention order. The government’s omission in extending funding increases to the community legal dimension illustrates its failing of family violence victims.
The United Nations has described access to justice as the process of ensuring that the voices of the community, particularly those that are marginalised, are heard. However, the voices, of those who sit at the fringes of our society are currently being stifled, as CLCs struggle to meet the increased demand for free legal advice. Not only has this pandemic severely threatened our nation’s economic stability, but it has also resulted, amongst other things, in a multitude of tenancy, employment, and family violence crises. With funding cuts, the difficulty in remote file management and the CLC resource tug-of-war, many calls for assistance from battered, homeless and/or unemployed individuals may remain unanswered.
 Dietrich v The Queen (1992) 177 CLR 292 at  per Deane J.
 Mary Anne Noone, ‘Chapter 13: Australian Community Legal Centres: The University Connection’ in Jeremy Cooper and Louise G Trubek (ed) Educating for Justice: Social Values and Legal Education (Routledge, 2018) 2.
 National Association of Community Legal Centres, ‘Submission to Australian Government: Federal Budget 2017-2018’ 4.
 Victorian Government, Access to Legal Aid, Victorian Auditor-General’s Report (2015) 15(4) 2.
 ‘Legal need and the COVID-19 crisis’ EY Infrastructure Advisory (on behalf of Federation of Community Legal Centres Victoria) (‘EY’) (Web Page, 24 August 2020) https://d3n8a8pro7vhmx.cloudfront.net/fclc/pages/743/attachments/original/1593647085/FCLC_-_COVID-19_bid_-_For_tabling_at_PAEC_-_19052020_-_final.pdf?1593647085 4.
 Victorian Department of Justice and Regulation, Access to Justice Review, Summary Report (2016) 3.
 Productivity Commission, Access to Justice Arrangements, Inquiry Report (2014) 1, 7.
 (n 5) 6; ‘Why Community Legal Centres Are Good Value’ National Association of Community Legal Centres (Web page, 27 August 2020) https://www.pc.gov.au/inquiries/completed/not-for-profit/submissions/sub099.pdf 3.
 EY (n 5) 3.
 Ibid 8-9.
 ‘Renting rules and support during the moratorium’ Consumer Affairs Victoria (Web page, 24 August 2020)
 EY (n 5) 7-8.
 Ibid 13; See generally Annie-Marie Waters, ‘Do Housing Conditions Impact on Health Inequalities Between Australia’s Rich and Poor?’ (2001) Melbourne: Australian Housing and Urban Research Institute.
 ‘COVID-19 and Family Violence’ The lookout (Web page, 24 August 2020) https://www.thelookout.org.au/family-violence-workers/covid- 19-family-violence/covid-19-and-family-violence-faqs.
 ‘New Domestic Violence Survey Shows Impact of COVID-19 on the Rise’ Women’s Safety NSW (Web page, 24 August 2020) https://www.womenssafetynsw.org.au/impact/article/new-domestic-violence-survey-shows-impact-of-covid-19-on-the-rise/.
 Debra Parkinson and Claire Zara, ‘The hidden disaster: domestic violence in the aftermath of natural disaster’ (2013) 28(2) Australian Journal of Emergency Management 28.
 ‘Domestic Violence Victoria welcomes today’s funding announcement for family violence responses during COVID-19’ Domestic Violence Victoria (Web page, 24 August 2020) http://dvvic.org.au/media-releases/domestic-violence-victoria-welcomes-todays-funding-announcement-for-family-violence-responses-during-covid-19/.
 ‘Family violence crisis response and support during coronavirus’ Victoria State Government: Health and Human Services (Web page, 24 August 2020) https://www.dhhs.vic.gov.au/family-violence-crisis-response-and-support-during-coronavirus.
 Emergency Management Act 1986 (Vic) s 23.
 Megan McPherson Halket et al, ‘Stay with or leave the abuser? The effects of domestic violence victim’s decision on attribution made by young adults’ (2014) 29(1) Journal of Family Violence 35, 36; Jess Hill, See What You Made Me Do: Power, Control and Domestic Abuse (Black Inc, 1st ed, 2019) 2; see ‘2018 Data Report’ Australian Domestic and Family Violence Review Network (Web page, 27 August 2020) https://www.ombudsman.wa.gov.au/Reviews/Documents/FDV/ADFVDRN_Data_Report_2018.pdf xii, which found that 63.6% of men who committed domestic homicide killed their current female partners, but in 26% of those cases the female had indicated an intention to separate.
 EY (n 5) 11.
 Ibid 9-10.
 ‘Access to Justice’ United Nations and the Rule of Law (Web page, 24 August 2020) https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice/.