Unlocking the power of the law

Australia’s legal processes are notoriously challenging, but Grata Fund is working to make the courts more accessible to NFPs creating social change.

Navigating Australia’s legal system is likely not the first port of call for many NFPs looking to drive social change, but Grata Fund argues it might be one of the most effective ways to make an impact in our society.

As the nation’s first specialist NFP strategic litigation incubator and funder, Grata Fund works to unlock the power of the law by making legal processes fairer, accessible and cost-effective for affected individuals and organisations.

Founder and executive director Isabelle Reinecke says despite there being significant barriers to public interest litigation in Australia, using the law is a powerful democratic right that can hold governments and leaders accountable.

“Unlike a lot of other aspects of Australian governance, you can’t get out of the court process with spin or PR. It’s a place of evidence and facts, where people can actually seek justice from those who otherwise wouldn’t necessarily have to sit down with them, which makes it a really powerful accountability measure,” explains Reinecke.

“The courts should be accessible to everyone, and unfortunately, they tend to not be in Australia because of its unique cost risk for public interest litigants. This is why we act to connect communities who are seeking to deal with an issue with the court process, social movements and philanthropy.”

Grata Fund partners with legal and advocacy bodies to remove the financial barriers to public interest litigation. Composed of a team of both lawyers and campaigners, it grants recoverable adverse cost relief and disbursements, proactively develops litigation and works directly with affected communities on legal strategies and campaigns.

All legal work carried out is done pro bono, with 100 per cent of its funding provided by donations from crowdfunding and philanthropy. As an independent body, Grata Fund does not receive government grants to ensure it can support communities to carry out legal action without any risk of conflict.

The incubator also provides legal education and training to fill critical gaps in Australia’s legal community.

“What I found was that what you really needed to do for an organisation like Grata Fund to be effective was to put campaigners and lawyers on the same level, and to have an equal balance of their power and expertise. So when people work with us, they use our legal team’s resources and our campaign team’s resources as well as our philanthropy resources. It’s very much about the complete picture,” Reinecke said.

Adding the law to your campaign toolkit

Grata Fund focuses on cases in three key areas, including human rights, climate justice and democracy and freedoms, each of which carry intractable political problems that require accountability at a court level.

For example, the incubator is currently collaborating with Maurice Blackburn Lawyers to use the Freedom of Information Act to find out who knew what about the botched Robodebt scheme, and helping First Nations leaders from remote islands in Guda Maluyligal in the Torres Strait to take the Australian Government to court for failing to prevent climate change. It is also working with a refugee client to challenge Border Force for the harmful use of restraints which has been condemned by medical professionals and human rights experts. 

Grata Fund resources itself based on an assessment of how long a case is going to take. The majority start from the ideation phase and can then progress all the way to the High Court, depending on the issue. Sometimes, it’s just the introduction of litigation that drives action. 

It’s for this reason that Reinecke says NFPs should reposition the use of the law and court processes from an elusive consideration to simply another tool available in the creation of a social justice campaign.

“Cases can take years to resolve and run over multiple courts, or they can be really short and don’t even go to hearing. Sometimes the threat of litigation is actually sufficient to create change in behaviour in terms of the impact that we’re seeking, which is a really powerful tool.

“So at the same time you’re working through your campaign tactics, you should make sure you’ve got a legal strategy running through all of your work – because it might actually create change where you wouldn’t have otherwise thought about it.”

Addressing systemic legal issues

But while Grata Fund has facilitated significant progress on systematic social injustice, including addressing disability discrimination, Traditional Owners’ rights to country and the treatment of refugees, Reinecke says the structure of Australia’s legal system poses significant challenges to public interest litigation.

“There are unique hurdles that litigators face in Australia. The difference with places like the UK, which has a very similar system, is that they have developed rules to protect public interest litigation.

“In those jurisdictions, the law has developed to recognise that there’s not much use to having laws in place to hold governments and others accountable, if you can’t actually afford to hold them accountable in the court process.

“Traditionally, in Australia, people have resisted reforms for this cost issue because they have been nervous that doing so would open the floodgates to dodgy litigation, but actually, there are in-built mechanisms you could have that would stop that from happening. It depends on governments being willing to do it.”

But Reinecke is hopeful that as more organisations in the social sector come to rely on the law to enact change, the courts will ultimately be forced to address its processes for the better.

“Sometimes activists and social change agents who aren’t lawyers can be intimidated by the law, but I think what I found is a lot of the people that we’re working with and have worked with find it a really satisfying experience and are eager and excited to learn more.”

“I think as more people use the law and talk about what they’re doing, it’s going to make those pathways even easier for the next generation.”