The pandemic further exposed a core logic of the capitalist state: what it giveth, it can taketh away. The changing rate of JobSeeker was an extreme case: shortly after doubling it—and thereby raising above the poverty line for the first time in decades—the Coalition cut it once more, with an insulting bonus of $50 a fortnight. But this logic predates the pandemic and extends beyond income support: it’s central to the operation of capitalist government, and intensified by our neoliberal model. This is equally true of Australia’s legal institutions, in which the state of access to justice in Australia is detestable, particularly for First Nations people. The necessary institutional framework exists, but the funding is dire, and the gulf between the wealthy and everyone else in the legal system is egregious.

When I began my doctoral research into access to justice in Australia, the government had just backed down from a colossal 30 per cent cut to community legal funding, but the beating had already been delivered, and at best we returned to a status quo of underfunding and marginalisation. That was before the pandemic. Since then, there has been no substantial boost to community legal funding, just like there hasn’t been a permanent adequate boost to any other form of the welfare system. The state giveth what it wants, and taketh what it wants. This essay isn’t solely a reflection on the legal system, but rather what I’ve subsequently learnt about how the Australian state administers, funds, and frames welfare. Its unilateral decisions reflect relative public powerlessness over what our public services do—and why it’s vital we build power through ownership over this system.

Community justice

The first free legal service to open its doors in Australia was the Aboriginal Legal Service (ALS). Conceived in a Redfern public meeting and taken forward by Aboriginal activists like Gary Foley and Paul Coe, the ALS started in 1970 as a volunteer organisation but soon received government grants for paid staff. Not soon after, the Fitzroy Legal Service became the first official community legal centre (CLC) in 1972, open to the general public. Despite government support, both of these were and are independent organisations. It took two more years before the government-operated Legal Aid was founded. Today, CLCs and ALS are established mainstream legal institutions (officially) endorsed and funded by the government. But their original proposition that access to legal services was a universal right and, not charity, broke the mould. They saw community service as a conduit for transformational politics, and community ownership as a bulwark against assimilation, poverty, and state violence. They saw the necessity of access to justice not merely in court, but in everyday situations like being harassed by the police, exploited by your employer, driven into debt by your bank, evicted by your landlord, or taken for a ride as a consumer.

In the current climate the deferential and the radical exist concurrently. There’s still a progressive vision in their press releases, their policy statements, and amongst their staff, but political advocacy is proscribed by strict funding conditions and solidified in the infamous ‘gag clauses’ of the 2015 National Partnership Agreement on Legal Assistance Services, an unprecedented and potentially unconstitutional attack on civil society.

These aren’t empty threats either—even before the National Partnership Agreement, the Coalition ripped all federal funding from the Environmental Defender’s Office on then Attorney General Brandis’ notion that resources ‘should go to case work rather than causes’, and the Refugee Advice & Casework Service lost funding in the Coalition’s ideological war against asylum seekers.

Not every attack has been this nakedly ideological. In 2017, the Coalition attempted to cut total CLC funding by 30 per cent. Fortunately, it was driven back only weeks before my first interview; but when I started my six months observation inside a CLC, I realised the ramifications of the threat outlived the backdown. CLCs had already been stretched to their limits through stingy, barebones funding agreements: centres had to turn some people away, staff were forced to overextend themselves, and centres with more volunteers (often students) had far greater capacity.
This wasn’t an accident, it was deliberate policy. Demanding CLCs run on the smell of an oily rag keeps them focused on service delivery, and prevents them from allocating many resources to systemic change, strategic litigation, holistic care, or community empowerment. Further, because this service delivery is built on the backs of mostly women working on care sector wages, and volunteers working for free, CLCs—despite being a thorn on their side—were ultimately cheaper for the government.

The contradiction seems stark: CLCs rely upon, but are hamstrung by government funding. The first CLCs and ALS both received government funding, but were built on the premise of independence from it. This apparent paradox isn’t unique to CLCs—it informs one of the most conspicuous conservative criticisms of left-wing movements: criticising the state while demanding government spending, biting the hand that feeds. But the development of CLCs, ALS, and countless other organisations born from social movements dispels this myth. The appearance of hypocrisy is the perspectival consequence of neoliberal conditions.

Neoliberalism

There has been a recent surge of scholarly interest in historicising Australian neoliberalism. Elizabeth Humphrey’s excellent book How Labour Built Neoliberalism (2018) posited that the foundations for neoliberalism were laid by the class compromise between trade unions and the Labor Party—also known as the Accords—that strictly limited workers’ bargaining power in exchange for government regulating the prices of labour and establishing social wages. Shortly after the Accords, a separate neoliberal revolution transformed the public sector: New Public Management, which applied corporate managerial principles to government services. It encouraged competition within and between departments, the outsourcing of government services to private parties through tender processes, performance-based incentives at a managerial level, and tight budgets that rewarded thrift before outcome. It also encouraged the corporatisation of public institutions: the Australian Broadcasting Commission became Corporation in 1983, Australia Post undertook the same process in 1989. It’s NBN Co and Snow Hydro Limited.

New Public Management—and neoliberalism more broadly—also had a cultural dimension: think about every time you’ve been referred to as a customer on a public train, or at a public hospital, or received your Customer Reference Number at Centrelink. This is customer service, not social welfare. New Public Management was followed by the National Competition Policy in the early 1990s that further entrenched the privatisation of public services. Rather than use the weight of the state’s fiscal power for the social good, private organisations were now allowed to ‘fairly’ compete with public services. A desired (and successful) outcome of this was the ascendency of the third sector—charities, NGOs, and community organisations in social services, as the government retreated from this space.

While one might assume that this expansion of the third sector benefited CLCs, the inverse was the case. CLCs were formed in direct proximity to communal needs, and were explicitly aimed at communal empowerment. Under the new regime, however, CLCs were one player in an overcrowded market of organisations competing for government funds. Where they once served the needs of a community, they now needed to demonstrate they could fulfil those of the government.

The effects of neoliberalism in the CLC space were immense. I found that the effects of underfunding and tendering on staff, volunteers, and therefore clients continued from that period to this day, whether it was a growing alienation from original social justice goals to an undermining of holistic care models. CLCs also needed to justify their survival, a difficult task when they were perceived by governments as political gadflies, more likely to raise hell than their more conservative or apolitical counterparts such as religious social services and charities.

There is an obvious difference in the way progressive community organisations are treated by the government compared to charities in the third sector. At the time of my research— the late 2010s—there was a huge push towards the outsourcing and selling off government services like housing, disability care, and even employment services. And yet the government was redirecting more funding to their own Legal Aid departments, while simultaneously threatening to cut CLC funding.

Apolitical, conservative, or small and unaccountable service NGOs were gifted chunks of government funding and services, while organisations like Rape & Domestic Violence Services Australia—which also started in Redfern in the early 1970s as a feminist collective—had to fight for its funding, sometimes coming close to shutting down until receiving emergency funding for crises already manufactured by austerity. Organisations that wanted at any level to do more than serve—to also fight, empower, and transform—are deemed unworthy of funding.

Entitlements

It’s worth revisiting the CLC movement’s foundation according to principles of everyday justice—rather than those of charity. This was in direct conflict with a long history in common law systems for lawyers to provide charitable assistance to deserving applicants who despite their good behaviour or moral cause could not afford legal assistance. By definition, pro bono assistance could never be universal, and therefore universal models were needed to articulate the human rights to which every person was entitled.

It’s not a common term in Australia, but there’s a connection between the entitlement to justice and entitlement programs in the US—or social security and other forms of welfare. These entitlements aren’t seen as being gifted, but earned, through a lifetime of work or through suffering under capitalism. It’s also a term that’s been hacked at by conservatives in both countries for decades, economically through cuts and culturally through demonisation.

‘Entitled’ is a slur, after all—arrogant, indulgent, privileged, and undeserving. In contrast to the stodginess and dourness of welfare and entitlements, charity is elevated into a moral act for both the giver and the receiver. It’s a good deed that forms personal connections between both parties. Everyone is happy in the end, including the ‘taxpayer’ who didn’t have to spend a dime in the transaction. But charity is optional, at least in any secular sense, and religious obligations won’t guarantee that every person who needs it will necessarily get it. It’s based on the discretion of the giver, not on the rights and entitlements of the receiver. And charity, however well-intentioned, creates unequal power dynamics. As President of the first Aboriginal Legal Service, Hal Wootten, stated:

[The ALS] was a success because of its grounding in the Aboriginal community … Aboriginal people considered it their legal service and ‘not some form of charity from the white community’. 

Charities and charity aren’t the same thing, and there are organisations we call charities that believe in the universal application of entitlements and seek to apply these. Similarly, CLCs don’t operate universally—they mix a lofty ‘justice for all’ mantra with a degree of pragmatic discretion. But this is more a question of scarcity than philosophy—they only have so much money and time, and funding comes back down to charity or entitlement. If your funding comes from charitable donors or even government grants, your operations will only be as large as your funds. But if you can win guaranteed funding, you can guarantee people’s entitlements.

Social guarantees

Social guarantees formed the basis of the welfare state. They took time, and undoubtedly contained exclusions, but over the decades since Federation welfare policies were added, like the age pension, disability pensions, unemployment income support, Medicare, and Legal Aid. But what the state giveth, it taketh away. Only Labor governments would ever expand the welfare state, while Coalition and Labor governments would chip away at it—it was Labor who gutted the single parent’s payment, a policy they themselves had introduced decades prior.

And even when welfare supports are provided for, there’s no guarantee you can access them. Means testing inevitably excludes people who need assistance but aren’t deemed to be doing it tough enough. Even worse, people in desperate circumstances can be wholly excluded if they lack the right documentation because they’re fleeing domestic violence, working informally, or not literate in English, among other reasons. In the context of Legal Aid, means tests are further paired with merit tests: even if you’re poor enough to access Legal Aid, if your case is judged unwinnable, or you are otherwise considered undeserving.

Neither the welfare state’s oscillation, nor its steady decline, nor its endless barriers to access help people who are simply trying to survive. Welfare is hardly an entitlement if it stands at the whim of an election, what side wins in the party room, or which think tank wonk gets to experiment with governing policy. Another angle of the apparent contradiction of welfare persists: if welfare services and community organisations need guaranteed government funding to provide guaranteed services, how can they meet this need when that funding can cease with the click of a minister’s finger?

Public ownership

Midway into my postgraduate years, I went to a seminar set up by my department. One student presented on the early years of land collectivisation in China—before the country became properly communist but when the party was making inroads with vast swathes of the country’s peasants. She mentioned the party retains the right to sell state land, mostly in the big cities, to private owners. In the regions, however, much of the land is still considered collective property—not owned by the state but by its farmers and the village, as per historical agreements between the Party and the people. How accurate or enforced this is, I’m not sure. But what stuck with me was the differentiation between state and collective. At the time I was hearing this, our government was withholding or cutting funds to social services, interfering in independent public institutions like the ABC, and gagging the political advocacy of community organisations like CLCs—and they were ostensibly within their legal rights to do so.

We need to dramatically shift how we conceptualise public services and institutions. We are not their customers, we are their owners. We need to move from our current untenable situation in which our governments strip-mine and sell off public assets, to one which essential payments are explicitly recognised as rights and entitlements. This will require effective language in which to discuss community ownership. Public and democratic ownership at the level of national industries might be difficult to localise, but solidarity work like disability care, aged care, and free food can be democratically managed at a community level—and we know because it already happens. It’s how women’s shelters and domestic violence advocacy services started. It’s how community legal centres started. It’s how the Aboriginal community in Redfern built a legal service, medical service, childcare service, a theatre, and housing, all within the span of a few years.

Democratic ownership

What can’t be done solely at a community level is a genuinely liberatory level of funding, and this is where the contradiction I proposed earlier resurfaces. But we can resolve it if we take a step back and reconsider the role of the state in our public services. The state can legislate, but the work of building institutions and services comes from the people, the land it stands on was stolen but never ceded, and the funding comes from the wealth produced by both. Ownership is derived from Country, not through the Crown or Parliament. This is why collective organisation is necessary to redirect resources into communities; democratic ownership is not just moral and efficient, but also the natural outcome of land and labour. The unnatural reality is that capitalists take what we produce away from its producers.

It is only through struggle that we can keep or recover the key functions and finances of the state. Every time the government retreats from a cut or a ‘reform’ because of protest, it signifies a victory, however small, for public ownership. These are, unsurprisingly, hard to achieve. Capitalist states have been remarkably successful in resisting democratic ownership. A key mechanism I found in my study was fragmentation. To protect its own interests, the capitalist state will cede ownership—but not democratically. Instead, the state will disavow itself of full ownership and dilute itself as the target for struggle. An overt way to achieve this is by creating state corporations, run not as independent publicly-owned entities, but by boards in accordance with corporate responsibilities. At the level of community organisation, it’s a bit more complex, but a key method of fragmentation is grant-based funding—only funding what the state needs of them, and only partially. This can hollow out the organisation of undesirable functions, like advocacy and systemic change. (It also aims to remove slack in organisational capacity leaving no room to respond to crises, and funding at a bare minimum.) The goal is to keep the organisation at arm’s length, yet close enough to take back the reins if needed. Governments divide and conquer, create divisions between clients and staff, or between professionals and activists. In one paper I read, an American city’s burgeoning welfare rights movement jointly led by welfare staff and recipients was ended unceremoniously by a simple managerial trick: they created two types of social workers with supposedly different interests, and that was that.

Resistance

It is daunting to struggle against the neoliberal behemoth. During my research, CLCs were discussing the concept of ‘resilience’ and how to survive the fiscal and political attacks of the government. And CLCs weren’t and aren’t the only community organisations to take resilience seriously. But parallel to resilience stood resistance: how to speak back to the system and challenge the external conditions that required resilience in the first place. At a systemic level, this should mean organisations bonding together as a social movement, and resolutely taking the fight to the government. At an organisational level, resistance means refusing to accept the neoliberal terms set out by the government. At the personal level, it means refusing alienation, maintaining connections and solidarity with each other despite the overwhelming sense of suffering: as one social worker told me, ‘the point of the work isn’t to not have your heart broken’.

In a more conventionally Marxist sense, this means realising that the product of our labour belongs collectively to all of us—collectively. That we produce more than enough wealth to create a society without poverty, injustice, or disenfranchisement. And if this is what we want as a society, then we shouldn’t politely request the welfare, services, and institutions that support these goals—we must demand them.

CLCs aren’t perfect—no community organisation is. Our public institutions may be even worse. But it’s important not to cede these organisations to the state, but to work on defending and democratising them. Because it is through organisations that we can build power, formalise solidarity, and take back what is owed to us.