This is a written transcript of a speech given by Hannah Northover on behalf of Community Law Wellington Hutt Valley in 2013.
The Wellington Community Law Centre was founded in 1981, and, as I mythologise it, it was founded as a counter-cultural force, counter to the prevailing legal culture. I use the word “mythologise” intentionally. Facts about the early days of the Law Centre are easily accessible, because of amazing people like lawyer Margaret Powell, who was involved in the Community Law Centre when it began and is still involved as a regular volunteer. But it is not those facts which have the greatest influence on the current staff of our community law centre.
Instead, it is the legend of the law centre’s early days. CLWHV is also home to the Wellington region Māori legal service, which in past years has existed in various forms, including TRT and Ngā Kaiwhakamārama i ngā Ture, operating on kaupapa set down by heroes like Moana Jackson. We are proud of our heritage and what the earlier law centres accomplished as critics of the legal system – they give us legitimacy as a grass-roots organisation working for systemic change, and they give us the legend of a shoestring organisation of radical but practical people, publishing Lesbians and the Law, making videos about Youth Rights with the Police, and – best of all – apparently hated by the WDLS. Now, today we value our relationship with the NZLS, but I am still proud of our history as a group which was a challenge to “the system”. They were a bunch of law students and young lawyers who wanted to make legal help more accessible to people who couldn’t buy it. And the Law Society was horrified. Good! That makes it sound to me like they were doing it right.
Desire to continue to make change like the first CLCs did – and why can’t we?
Now CLCs are MOJ-funded, we have clients referred to us by all manner of government entities, we are very much part of the system. So how do we do justice to the legend and history of CLCs? How do we make sure that future community law centre people are proud of what the law centre was in 2013? (Or that what they mythologise about us is something we would want to be proud of?)
Why is it that law students around the country continue to set up groups designed to allow them to critique and improve the justice system? Are CLCs not providing that forum for idealistic and enthusiastic students? We work alongside those groups, and their members volunteer with us, but it seems there is still room for additional fora for their desire to make change.
There’s a well-known quote often attributed to Margaret Mead, which goes something like this: “Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.” True, you say? “Yes, but those small groups of people have all been driven idealogs, right, not service providers meeting contracts!”
Are CLCs now so bound by their contracts, that they can no longer change the world? Are we so focused on doing what our funders require in order to keep funding us that we start to lose sight of community need and the infirmities of the justice system? I think we are at risk of that happening. But I think that contracts are only part of the picture. There are other factors holding us back from meeting our clients’ needs in a more enduring way.
What change do clients need?
The brief for this talk asks: what do our clients need? That is a difficult question because what our clients need immediately is usually advocacy in the face of a powerful person or entity: they need us to call their landlord or help us to make an application to the Tenancy Tribunal. They need us to help them to write a personal grievance to their employer. They need us to help them to deal with CYF. Or they need us to help them to call a power company. Those are immediate needs, and it is very easy for us to spend our whole working day trying to meet those needs. But we might be able to make more change for more people – we might ultimately be able to meet more of their needs – if we make more time to work on less immediate change to the system.
We are well aware of many of the bigger picture needs of our clients. We know that our clients need warm, dry, affordable, secure housing; they need the ability to go straight on to the benefit without a stand-down period if they are fired during a 90-day trial period; we need a child protection agency which parents are not afraid to call, but which instead allows parents to be confident that the person they speak to will have the time and the understanding to work alongside them to help their children to thrive; we need immigration policy which does not create a disincentive for a woman to leave a violent partner; we need a speedy way to challenge schools’ suspension and expulsion decisions;
we need a way to find welfare guardians for those who can no longer make decisions for themselves but have no family; and I’m sure you could all add to the wishlist for change.
“Equal access to Blind Justice”
In relation to justice system – and I’ll mostly talk about the criminal justice system here – the brief for this talk asks whether we have “Equal access to Blind Justice” in NZ. I am confident that the answer is “no”. Two times “no”. The access is unequal and the justice is at least partially sighted.
Access to our justice system is not equal. For one thing, almost everyone needs professional help to navigate the court system. And professional help costs. If you can afford that help, you will find it easier to access the justice system. Better still, you will be able to choose the navigator – the lawyer – of your choice. We frequently see clients who intend abandoning legal claims or defences because they do not want to – or cannot – meet the high costs of that claim or defence.
The system is also more easily accessible if you are highly literate in English, if you have a phone and access to a good internet connection and a printer, and if you are culturally comfortable in a Pakeha system.
And blind justice? No. In Moana Jackson’s 1988 report on Maori and the Criminal Justice System (He Whaipainga Hou) he pointed out the systemic bias against Maori at every stage of the process. And the statistics continue to show it: if you are Māori you are more likely to have an adverse outcome at every step along the justice system path. That’s the blatant bit: our justice system is not colour blind.
Less blatant bias also exists. Recent figures comparing the impact of benefit fraud with the impact of tax evasion, and comparing the relative sentences, show a class bias in our justice system. Do we really penalise most harshly those who commit the most harmful acts in our society? Or are we keener to penalise further those already on the fringes of society?
But do we want “Equal access to blind justice?” No. we want better justice.
In any case, I am absolutely confident in stating that we do not enjoy equal access to blind justice.
A more interesting question is whether that is what we want. Equal access? Yes, I see no reason not to want equal access. But blind justice I am less certain about. Do we want our courtrooms, our police officers, our prosecutors and our policy makers to treat everyone in the same way? Increasingly, my answer is no. I think that a justice system should not be blind to the context of the dispute it is trying to resolve or the wrong it is trying to right. Our justice system should not be blind to its outcomes. When we see how few rapes result in convictions, we need to change the justice system to address that. A recent VUW book, From Real Rape to Real Justice, addresses that concern. We need to act on that. And when we see the disproportionate number of Maori in prison, we need to address that. Moana Jackson’s 1988 report tells us how. We need to act on that.
We need to be ready to criticise our justice system and ready to change it.
RJ is a bit better.
In that vein of change, like I said, CLWHV has recently been awarded a new contract to deliver RJ conferences in the P,W and HV DCs. Who knows what RJ is? (let someone else answer this) I was relying on an answer from someone else, but in short an RJ conference is when two people (a victim and an offender) get together and have a facilitated, supported, conversation. It seems to be a bit magical. Amazing stories come from these conferences. Offenders who for the first time see a victim as a real person, and see the harm they have caused, rather than focussing on injustices against them. Victims who see the desperate situation of the person who offended against them, or who feel the catharsis of being able to tell an offender how they have been affected, and to receive a genuine apology from someone who has heard and understood the victim. RJ conferences offer some things our traditional justice system just can’t. CLWHV will be providing mostly pre-sentence RJ, but programmes like PF’s Sycamore Tree also provide RJ for people in prison.
But RJ is not the full answer
So I think RJ is great, but it is of course not the full answer. We need something more: contextualised justice, indigenous justice, something that is fair and good for Aotearoa – and of course I don’t know what that is – but I do know some of the things CLWHV is doing to work towards something more like it. As an organisation, we are working towards proper biculturalism. We are also seeking to become more financially independent of the MOJ. We are making some effort (though I think we could do more) to support new lawyers from diverse backgrounds, so that more people using the justice system can come across people who they relate to easily.
Reform is harder work than assistance
But these systemic needs are harder to meet than many immediate practical needs, and I am not even sure I am the right person to be talking to you about this, because I am fairly practical. I come from a family of Presbyterian nurses, and I find it much easier to focus on the smaller changes I can see – on making life immediately better for one person or one family by helping them with their immediate problem. I find it harder to see the big picture and to have confidence in our ability to identify the change we need and to affect that change.
Are we so aware of our privilege that we have lost confidence in our ability to know what is the right change to be seeking? Or do we just lack belief in our ability to truly make a difference?
We have some courage – like I’ve said we are right now trying to make CLWHV truly bicultural, and we take on huge legal information projects like publishing this Community Law Manual annually, but our voice about what is right and wrong needs to be louder.
There are some courageous organisations coming out of NZ law schools at the moment: The Equal Justice Project at Auckland Uni, the CJP at Vic Uni, Law for Change which started in Otago, and JustSpeak, a group campaigning for a better criminal justice system, particularly for young people. These organisations struggle with their own privilege and with trying to create diversity and legitimacy, but none of them let it hold them back. Generally, they recognise their privilege, recognise the issues with privileged people speaking for less privileged, but deem that better than saying nothing – and they have the courage to say something and be criticised for it. What’s better than that? What might be better is to find a way to empower the more marginalised to say what they are thinking. And many of those groups are rising to that challenge too. How different are these groups really from the early WCLC? And where will those student groups and their members be in 30 years? Will they manage to forge paths which allow them to remain critical of an inadequate system? And will they need to articulate their political underpinnings in order to do so?
So how are we going to get the full answer? Are apolitical CLCs going to come up with it?
For CLCs, can our CLC work together – and can CLCs work together and have a loud voice nationally – without identifying the political and ethical underpinnings of our work? We do work together to deliver services – our staff and volunteer lawyers come from all sorts of backgrounds and have all sorts of different motivations. Some are called to their work by God, others are motivated by a secular service ethic, some are required by their employer to spend time at Community Law – one former volunteer who ended up as a board member in fact first came to Community Law as part of a sentence for drink driving. So we know that you don’t need a cohesive political viewpoint in order to be a service provider at Community Law, but I would like Community Law to be more than that. I would like us to affect systemic change. And for that I wonder whether we need to articulate the political views of CLCs. Can we be apolitical and still affect change?
CLCs used to be funded by the MOJ to do a contracted number of law reform hours every year. When we did those hours in an apolitical way, we engaged with community groups to help them to change the laws which were most important to them. For other pieces of work we closely analysed the likely real effect of changes to the laws we work with most often. To do that we had to find a Community Law viewpoint, but in recent years we had often sought an evidence-based, less political viewpoint.
In any case, we are no longer funded to work on law reform in the name of our CLCs and from the CLC’s point of view. Since July the MOJ has decided not to purchase “law reform” hours. So we are no longer funded to find a CLC viewpoint and review draft laws from that point of view. In a way I can understand this – the MOJ no longer wants to pay us to criticise them. But in another sense it is a concern: where is the mechanism to make sure that the communities affected by proposed or existing laws gets parliament to hear their views on these laws? I am not aware of any CLC which has yet sought alternative funding, or committed to volunteering the hours required to do law reform work from a CLC point of view. Perhaps that is what we should be doing.
There are interesting conversations to have about how democratic it is (or isn’t) to have private NGOs like our providing public services, but when the public service is assistance with criticism of the government, it seems right to have that service come from an NGO. Many NGOs engage very effectively with draft laws, and write highly respected submissions, but there is no longer a non- governmental service funded specifically to provide law reform services. I think there should be.
But that sounds like an excuse, and something we can overcome. What else is holding us back from changing the world?
If you want to learn more about community law, or you want to use our services or to help someone
else to, there is more information on the net at www.communitylaw.org.nz.