Where Are The Community Enterprise Lawyers?

Following the landmark Australia We Want report, Bronwen Morgan, professor of law at UNSW, explains why for-purpose businesses need greater legal support in their efforts to make Australia a better place.

The Community Council of Australia (CCA) recently issued an important clarion call, in its first The Australia We Want report. It urges us to expand our vision of what kind of country we want to create, arguing passionately in favour of going beyond economic indicators, to embed into all our public debate the importance of fostering a society that is kind, just, fair, inclusive, compassionate and courageous. “We are all much more than passengers in an economy”, the chair of the CCA, Tim Costello, said. His formulation is memorable and timely, and prompts us to consider what kinds of responses would best promote these values.

In the domain of law, the ready response is to assume some form of regulation as the best way to ensure a fair, inclusive economy – as the UK courts have just effectively done by declaring Uber drivers to be “employees” for the purposes of employment regulation. But it is equally important to keep our imagination open as to what “an economy” is, so that we can expand the toolbox of possible ways to foster a society of the kind the CCA calls for. Perhaps we might say, extending the passenger metaphor, “an economy is much more than a fast train from A to B”. From this perspective, business itself needs to incorporate the range of values highlighted by the CCA report – and one creative legal reform that would help assist this is expanded professional legal support for small-scale, sustainable economy initiatives.

In a recent discussion paper on this topic, my colleagues and I argue that there is a gap in the existing professional legal support for small-scale sustainable economy initiatives. The paper draws on a three-year research project on legal and regulatory support structures in this area, two small surveys of social enterprise, a review of eight cognate initiatives, a review of law firm websites and direct contact with nine social enterprise-related capacity building programs around Australia.

In current debates about innovation and the new economy, there is much to be gained by focusing on the ways in which small-scale enterprises that place a high value on economic democracy, social relationships and community development in their organisational design can help respond to urgent economic and environmental challenges. But the legal, financial and organisational structures of our current economy do not sit comfortably with these types of initiatives. There is some existing support for them but its utility and scope is restricted by assumptions of a divide between not-for-profit and for-profit legal structures – a divide that tends to result in a dearth of professional support outside of pro bono advice on the one hand and expensive commercial advice on the other. What if easily affordable and accessible legal advice and support for community enterprise existed as a common pool resource?

There are three main sources of existing professional legal support for small-scale, sustainable economy initiatives. Some law firms provide advice to social enterprises, but most focus on not-for-profit and limited pro bono advice. However, recently some smaller firms are emerging with more of a creative and hybrid focus. There are also a number of cognate initiatives that service social enterprise specifically and in some cases SSEIs, though they have various limitations of scope and resources. Finally, social enterprise capacity-building programs broker select initiatives to access legal advice, sometimes at “low-bono” fee levels.   

Overall, pro bono legal practitioners appear to have access to well-developed networks to help them identify each other and to share knowledge. In contrast, those attempting to build their expertise and skills around working with social enterprises and small-scale sustainable economy initiatives report difficulty in identifying a network and limited opportunities to share knowledge and expertise around their unmet legal needs.

The discussion paper analyses those unmet needs as a basis for proposing four complementary pathways that would advance the development of an effective eco-system of professional legal support. These pathways are predominantly quite practical, focusing on providing development opportunities around technical skill sets, improving the accessibility and relevance of legal support available, and reducing cost barriers to the provision of support. These pathways would cultivate, most importantly a vital, yet elusive, sense of what we call “the touch” amongst community enterprise lawyers. “The touch” is a sensibility more than skill, grounded in a mix of shared values, especially economic democracy, community development, a holistic worldview and an understanding of how to meld social relationality with practical governance. It is partly experiential, embedded in tacit craft knowledge, and partly normative, linked to a set of ethical and political commitments, though not to any particular ideology.

The creation of a legal ecosystem designed to give advice that is relevant to small-scale sustainable economy initiatives is vital if we wish to foster the Australia we want, as envisioned by the Community Council of Australia. And in a legal profession that increasingly faces the disrupting influence of technological and economic change that underpins the contentious sharing economy, a pool of community enterprise lawyers could be a career path of both civil and practical significance for future lawyers.

About the author: Bronwen Morgan is a professor of law at UNSW and has been conducting a Future Fellowship Research Project funded by the Australian Research Council on the legal and regulatory support structures for small-scale sustainable economy initiatives in Australia and the UK.