Isabelle Reinecke On Helping Disadvantaged Communities Access Legal Support And Challenge Human Rights Issues

In 2017, Isabelle founded Grata Fund, a leading not-profit based at the University of NSW that acts as a campaigner, litigation incubator and funder for people and communities challenging systemic gridlocks across three key areas: human rights, climate injustice and democratic freedoms.

As Executive Director of Grata, she leads the strategy and collaboration with some of the nation’s top legal minds. She has helped facilitate almost $2M in philanthropic case funding from passionate supporters.

Prior, Isabelle had more than 10 years’ experience as a director and lawyer at organisations including Getup, Immigration Advice and Rights Centre, and as a solicitor at Clayton Utz, where she acted for First Nations clients seeking stolen wages reparations in remote East Kimberley.

Isabelle was named the 2022 Emerging NFP Leader in Women’s Agenda Leadership Awards, is a Churchill Fellow, and the 2021 Women's Leadership Institute of Australia Fellow, awarded to women "who are leaders in their respective fields, women who have innovative approaches and the courage, conviction and capacity to create real change".

Isabelle discusses breaking down barriers preventing Australians from bringing forth landmark legal cases and shifting the dial on important subjects including human rights, climate injustice and democratic freedom.

Highlights from the interview (listen to the podcast for full details)

[Sarah Ripper] - To start off, could you please share a bit about your background and what led you to where you are today?

[Isabelle Reinecke] - I studied law at ANU and then psychology as well. I thought I was going to be a psychologist, but it turned out that law took over for me. Funnily, I think it's because they're both about people, just different aspects. For psychology it's obvious, it’s about, from person to person how we interact with each other. Law, at its heart is about how governments and societies interact with one another, through the invisible web of law which shapes all our lives. I went on to become a corporate lawyer, and in that time as a corporate lawyer, I did a lot of interesting pro bono work, which I was grateful to do. This included addressing topics such as sexual servitude and domestic violence. I worked for some impressive women who had experienced terrible things and were using the legal system as best as they could to seek justice. I also spent time in the remote East Kimberley working on stolen wages reparations, which is essentially this government system that saw governments lawfully retain all the wages (the very small wages) First Nations people were earning on missions and stations throughout the country. That was all over the country, including WA, and that back breaking work went on for decades and people didn't receive any money for it. The WA government used those funds to pay for police escorts for themselves around WA rather than it going to First Nations people to help them build their own wealth in what was for them this new colonial system. That case interestingly settled, and a class action recently regarding that case achieved $180 as a settlement for stolen wage reparations in WA. This is for the next of kin and any surviving people who were subject to that scheme. That was a harrowing experience, understanding face to face through working with a hundred clients their lives, histories and how difficult it is to have a colonial legal system provide justice for injustices caused by it. I moved on and worked in the non-profit field and eventually found my way into a big campaign organisation.

I began to understand that if you could combine the tools of campaigners and advocacy with the tools of powerful lawyers and law in court, you could make big shifts in society and the way communities are able to seek justice.

That's the roundabout way I got to doing what I'm doing now. Now I say to people that among campaigners I feel like a lawyer but among lawyers I feel like a campaigner. I sit across these two disciplines, but I'm passionate about how you can pull them together to make big changes in the world.

As founder of the Grata Fund, can you tell us more about the organisation, work you do and the impact it's generating?

It's best to understand Grata Fund through how I came about creating it, which was through this understanding there is the power of the courts and the power of the law. You need financial access through communities mobilising and organising themselves to fight the injustices they were facing. It goes across the board from climate justice to refugee rights or first nations justice. I was tasked with figuring out why we aren’t having impact litigation in Australia the way that we have seen globally. We've had a lot of big litigation in the last few years, but this was back in 2014-15, where I was looking overseas seeing big court cases happening on climate change in the U.S, South Africa, Brazil and all over the world. I spent a bit of time trying to figure out why we weren’t seeing this happening in Australia. There's a complex range of factors, but the one big one I could do something about was adverse costs.

If you're lucky enough to have never been involved in litigation, you have no need to have ever known about them, but what they basically are is if you bring a court case forward and you lose, you must pay the other side's legal bill. That makes heaps of sense most of the time; if Woolworth's has sued Coles for a business issue and lose, they must pay Coles' legal bill. That's fair and is the same in most cases. But in public interest cases, where you have people seeking government accountability to the laws that have been passed for their benefit, it doesn't make a lot of sense that you will have to pay the government's legal bill if you lose. Even if you've got a meritorious case, court cases are lost for lots of reasons. A win or a loss often reflects more of what the law is doing, it doesn't provide a moral judgment. Something could be lawful but completely immoral. It can be with merit to challenge an action if there is a decent legal argument, but even then, you could still lose. Because of that, the rest of the world or similar countries have already developed carve outs, so if you're a public interest litigant (someone bringing forth a case for the public good), you don't have to risk the cost of the other side. That can be hundreds of thousands to millions of dollars, which is serious. You might have a terrible unjust thing that's happened to because of the government which you think is unlawful. Even if you've got a free legal team (a community legal service or pro bono support), the personal resilience and fortitude to go ahead and put yourself in the face of this issue, if you then must pay the other side's legal bill if you lose, that risk is often too massive for most people.

What Grata does is provide the financial support to allow you to go ahead with the case. If you lose, we'll cover the cost, and it's this small thing making a difference in enabling cases to get to court, especially big structural impact cases.

The next point for me was we wanted to get the cases into court while having the maximum impact outside of court possible. I went overseas and learned from the granddaddies of strategic litigation around the world, in the US, UK and Europe. I found the most effective practitioners were those integrating their work into movements and social movement campaigns. That's how we came up with Grata. What we have is a couple of different aspects to our work. On the one hand, we work with legal teams to get cases into the position we're able to fund them and we believe they're strong enough. Sometimes they come to us perfectly ready to go, and that's good. Sometimes we do a lot of back and forth before we get to the point, we're prepared to fund them, but we also work hard to build the communities and movements bringing the cases forth so they're able to use the litigation to shift the dial outside of the courtroom as well.

Can you share a few key stories of impact and what your work looks like in practice?

We've had a couple of big wins lately. Several years ago, I started working when it was just me here at Grata. We've grown our team since then but have started working with a small community in Central Australia, about an hour Southeast of Alice Springs. They were working with a group of pro bono lawyers, Australian Lawyers for Remote Aboriginal Rights to talk to the government about the state of housing in their community. Their community housing needed drastic repairs. People were experiencing things like running sewage through their homes due to malfunctioning sewage systems, regular flooding, a lack of doors and even locks to go on those doors. These are just basic things you, I or any other tenant would reasonably want to have fixed if we were living in a rented property, which these people are. The Northern Territory Government just ignored them for years, and so they ultimately decided to sue the government. That community sued the government for about 600 repairs that needed to take place urgently. Jasmine Kavanagh, one of the women who was part of that case, was getting up several times a night to mop up the sewage running through her house due to this broken system. Her landlord responded by telling her to stop chucking stuff in her toilet, instead of investigating this issue and figure out what was wrong with sewage system. Later down the track, along the litigation pathway, repairs were taken out and there was a tree root growing into Jasmine's sewage system, which is what was causing the problem. She is a mum trying to protect her kids from getting sick. She talked to the government, who is also her landlord who she pays decent rent to. They fobbed her off, and that's just one of 600 of these sorts of issues. The community took it to court and the government responded poorly; they decided they were going to counter sue for $2 million in rental debts.

The community said they didn’t know what these rental debts are, they didn’t know what they were talking about and decided to continue. By the time the community got to court, the court discarded that claim by the government because they had no evidence of $2 million in rental debts. They literally had made up a counterclaim with no evidence.

That countersuit was denied, but also the community went on to win new standards of humane housing legal standards in the Northern Territory, which affects remote housing across the Territory and will have similar implications more broadly across Australia as well.

That’s just one example of how by getting into the court system, you're able to force government accountability, where otherwise it's too easy for the government to ignore it or not act. Courts have this ability to shine lights, ignore spin and get to the facts of a matter. Since then, there have been several other wins. This was the first time the High Court had heard a renter's rights case in a generation. The court decided not only do people deserve compensation for the lack of something, for example compensation for not having a door for five years. This was the case for Ms. Young, one of the women involved who has sadly now passed. The court decided people deserve compensation for the reasonable distress any normal person would feel if you didn't have a backdoor and security in your home for five years. That massively increases the compensation bill potentially payable across the Territory. Another related win happened just recently in Laramba, which is a nearby community to Santa Teresa. This is in relative terms; Central Australia is a big place. It's a couple hours Southwest of Alice (Springs). Along the same lines they argued that water quality was a part of the government's responsibility as landlords. In Laramba, drinking taps were producing water containing two and a half times the safe level of uranium. I don't know about you, but I don't want to drink any uranium in my drinking water, and neither do people in Laramba, that's just naturally occurring in the bore water there. It could easily be dealt with; the government could have bought reverse osmosis filtration taps at Bunnings. But the government didn't deal with it, so that community also won in court who found that the Territory must provide safe, clean drinking water to remote community tenants. That potentially has big implications elsewhere in Australia.

What are some of your key learnings from working in this space?

I've learned so much in this space, it's hard to boil them down to a few. One of them is you're only as good as the community around you. I've benefited from having an amazing team of people around me. The organisations, employees, board advisors, and mentors have made all the difference. It’s about having deep, genuine relationships with the people you're trying to serve and work with, while seeking to make sure you remain accountable. It's very well to get paid to work in human rights, but it's important that as a worker we're also accountable to the communities we're serving, and not just holding other people accountable to them.

What inspiring projects or initiatives have you come across recently creating a positive social change?

I have to say I'm very focused on Grata Fund, so I'm not always looking outwards to other initiatives. One absorbing my time, particularly now that I'm excited about, is we're working with community members in the Torres Strait from the Guda Maluyligal Nation in the Northernmost part of the Torres Strait. These are people from the islands of Boigu and Saibai, which are low lying islands at risk from climate change. They're already seeing massive impacts, homes becoming unliveable, previously productive agricultural lands becoming untillable, cemeteries being washed into the sea, and massive receding shorelines. If you are on these islands and go to the beaches, you see enormous coconut palms, pandanus palms and almond trees that are completely uprooted, metres and metres of uprooted trees. There are impacts already happening there now, and those impacts are going to get much worse quickly. Because of that, two men, Uncle Pabai Pabai, Uncle Paul Kabai and their communities are suing the Australian government for climate change negligence.

This is the first time the Australian Government has ever been sued for negligence in Australia, and I think a global for a First Nations community to sue their own government for negligence.

It does follow on exciting precedents from The Netherlands and a couple of other countries, where courts have found the government has a duty of care to their citizens and must reduce their emissions in line with the science to stop being negligent. Uncle Paul and Uncle Pabai are going back to court. They had on country hearings in early 2023, where the court literally went to the Torres Strait and saw the impacts for their own eyes. We're about to go into expert evidence hearings; it will be exciting to hear from climate experts about what's happening from a scientific perspective. That's an exciting project in my mind because it represents all the things at Grata Fund we seek to do. It’s led by people on the ground, and we are doing what we can to support. It will also potentially transform impact in Australia. If they win, it'll mean the Australian Government must reduce emissions in line with the science, which is a massive change from what it's doing right now.

To finish off, what books or resources would you recommend to our listeners?

A couple things I'm reading and rereading are Hope in Darkness by Rebecca Songlet, which is not just a beautiful essay, but soothing. It’s soothing in terms of how often in the climate space you feel a bit hopeless or in the human rights space things become heavy and hard. That provides an explanation of why it's important to keep going, and how we've got to look at history as lessons for how you can keep going. There is uncertainty in the future, which also means you still have a chance to influence it. I've also just released a book called Courting Power; it's about how courts have without people necessarily being aware of it become caught up in the culture wars we've seen. Especially for courts post the Mabo decision, in more recent years there has been a profound politicisation of our courts. This includes the Administrative Appeals Tribunal, which recently announced it's going to be disbanded completely because it became so partisan. For example, people had completely different rates of securing a refugee visa if they were heard by a judge appointed by the coalition versus by the Labour Party. My book is about the importance of understanding the role of the courts in our democracy, the role of citizens in bringing litigation against governments to hold them accountable, but also raising awareness of the forces that may undermine the role of the courts. I also discuss things we can do to stop that, because nobody wants to end up like the United States, particularly with these anti-abortion rights cases that are massively impacting people's lives now. We are not completely immune from similar things happening in Australia, and that's something we need to be aware of.