“The courts are the last line of defence against the abuse of power,” says Grata Fund founder, Isabelle Reinecke. “That’s how our democracy was designed but people have not been able to use the courts because of the prohibitive cost.” That is until the Grata Fund’s game-changing work began to level the playing field.
Nicole Richards, June 2018
Isabelle Reinecke was a ponytailed primary schooler when she began standing up for the rights of others.
Protesting federal funding cuts to the ABC which threatened kids’ programming, Reinecke wrote her first letter to the editor at the tender age of 10. Even then, years before any thought of a legal career took root, she intuited the value of evidence and promptly set about polling her classmates to document their viewing habits and their responses to the potential loss of their favourite tv shows to strengthen the case.
Twenty-odd years later, as founder and executive director of the Grata Fund, Reinecke is still fighting for others, albeit with a few more tools and a lot more experience (including time spent as Director of Legal and Governance at GetUp) at her disposal.
Named in honour of the first woman to practice law in Australia, Grata Flos Matilda Greig, the Grata Fund is a public benevolent institution that uses litigation to protect the rights of ordinary Australians. The Fund has already mounted and secured wins in several cases, including helping Doctors 4 Refugees successfully fight government gag laws.
“Public interest litigation is prohibitively expensive in Australia,” Reinecke explains.
“The cost risk of taking a case to the High Court can be as much as $200,000 which is obviously beyond the means of most Australians. The Grata Fund helps create systemic change on the issues of human rights, democracy and climate change by removing those financial barriers.”
“Our goal at Grata is to make sure people can access the judiciary so that the system can work as its meant to and that the public is able to hold those in power to account.”
The Grata Fund’s early success and the proliferation of similar examples using litigation as a lever for social change overseas, such as the defeat of the Trump Administration’s travel ban spearheaded by the American Civil Liberties Union, has captured the attention of Australian philanthropy.
“Philanthropy's appetite for advocacy in Australia is growing all the time, as trustees and individuals more fully understand the structures underpinning injustice and inequity in our society, and what is needed to bring about change,” says Sydney-based philanthropist and Grata Fund supporter Sue McKinnon.
“Providing services at the bottom of the cliff helps people recover, but fencing off the top of the cliff prevents them from falling in the first place.”
“Unjust and inadequate legislation and practices concerning climate change, asylum seekers, any minority group, whistle blowers etc, are confronted and challenged in many ways by people across society every day but sometimes public interest litigation is crucial in forcing governments to listen to the people they are elected to represent,” McKinnon says.
Philanthropic support has been critical to the Grata Fund’s success, Reinecke says.
“We couldn’t do what we do without philanthropic support because the cost barriers are just so big," she says.
“We’re only a couple of years old and we’re extremely fortunate to have a group of committed philanthropists supporting us who understand what it is we’re trying to do. Having philanthropic support enables us to take calculated risks in the same way a business would. We can’t promise a court will rule in our favour on any case, but if philanthropists are willing to support strong cases there’s huge opportunity to improve the lives of so many people - a single case can be a game changer for hundreds of thousands of Australians.”
Though anyone can apply for litigation support via the Grata Fund website, each potential case is assessed carefully.
“We don’t just look at the prospect of success and the resources required,” Reinecke explains. “We also consider how we can integrate non-litigation measures to maximise a case’s impact and how much engagement is possible with the community to make sure the case is not just exposed to the rarefied atmosphere of the court. Our priority is always to give preference to cases that have the potential to change unjust laws or policies and we use a set of metrics to help us determine the long-term impact we’re hoping to create.”
Not every case is successful, but Reinecke says that legal setbacks or unfavourable court rulings can still be used to advance a social change agenda.
“You get an outcome one way or another at the end of every piece of litigation,” she says.
“Even if the court doesn’t rule in your favour, that decision can still be leveraged as part of a broader conversation for change and we saw this firsthand in the marriage equality debate. The early court ruling still ended up serving the long-term interests of the YES campaign by creating an important moment for people to rally around and say, ‘this might be legally okay, but it’s not morally okay’. That fuelled the campaign’s momentum over what could have become a long and monotonous fight.You can use the contrast between what’s deemed legal and what the community expects from Parliament to demonstrate the need for big social change.
“Litigation has got to be one part of a holistic, integrated approach to creating change,” Reinecke continues.
“It’s not just about a smart lawyer with a clever legal strategy – it’s about engaging with members of the wider community and empowering them to be agents of change - whether by chipping in with a small donation online to make a case happen or by taking action outside of the courtroom to rally around the goals of the litigation.”
A new partnership with the University of New South Wales will not only bolster the Grata Fund’s ability to effect change but also help groom the next generation of public litigation advocates, with the Fund co-located alongside the Kaldor Centre, the Australian Human Rights Institute, the Australian Pro Bono Centre, the Allens Hub for Technology, Law and Innovation and more.
Reinecke deems it a “hotbed of collaboration” that will add to Grata’s goals of “driving new audacious public interest litigation in Australia and creating a culture change towards 'movement lawyering': working to mobilise clients and affected communities in creating change and deploying integrated advocacy strategies in achieving objectives.”
In addition, the Grata Fund will collaborate with the UNSW Law Faculty on public interest litigation research on human rights, democratic freedoms, climate change and access to justice procedural issues; host law interns; and Reinecke will lecture on public interest litigation origins and strategies.
Despite the Grata Fund’s early success and promising short-term future, Reinecke’s eye remains firmly on the long game.
“The fact is you’re always going to have an opponent in this line of work,” Reinecke says with an air of acceptance. “But if you have at your core a strong set of values, like protecting human rights, then you can hold pretty steadfast to those values and they’ll see you through.”
Learn more about the game-changing work of the Grata Fund here.