Overview and conclusions
This inquiry presented an opportunity for the committee to
re‑examine access to justice, following its previous reports in March and
June 1997, July 1998 and June 2004. For most of this period, and to date,
funding for the Australian legal aid system has been dominated by the Commonwealth's
'purchaser/provider' funding model.
These funding arrangements influence all aspects of the
legal aid system, as will become apparent, however, the committee's inquiry
focussed less on funding for the system and more on individuals' ability to access
justice. The broad terms of reference capture, in essence, whether members of
the Australian community, and especially its disadvantaged members, are able
to: access justice; what impediments there are to accessing justice; and
potential means of improving access to justice.
Access
The report begins with a consideration of people's ability
to access legal representation, including a summary of previous reviews and inquiries,
the non‑government National Legal Needs Survey, current Australian
Government legal aid programs, and reasons for a lack of access to legal
representation.
The committee heard significant and on‑going criticisms
of overall levels of funding, and noted cynicism that the Australian Government
will adequately increase funding for the legal aid system. The committee
accepts that the legal aid system is not adequately funded, and accordingly, in
conjunction with other measures, recommends that governments and relevant
stakeholders review existing funding arrangements and service delivery levels
to ensure that the legal aid system is properly resourced to meet the needs of
the Australian people, as well as recommending an increase in funding for legal
aid service providers, particularly in rural, regional and remote areas.
Most importantly, the committee acknowledges contemporaneous
initiatives to empirically determine the demand for legal aid services and unmet
legal needs of the community. The committee considers such data fundamental to
identifying the current weaknesses of the legal aid system, and formulating
appropriate, long-term policies and strategies for a strong system which
universally delivers access to justice. To complete current surveys, the
committee recommends governments fund a comprehensive national survey of demand
and unmet legal need in Indigenous communities. The committee also calls for
the publication of interim results for the National Legal Needs Survey no later
than February 2010.
Specifically in relation to access to legal representation,
the committee singles out for mention, and commends, those members of the
private legal profession who undertake pro bono legal work. The committee heard
that a significant amount of pro bono legal services are delivered each year by
legal practitioners. Without this contribution, the committee acknowledges that
many disadvantaged Australians would likely not be able to access any form of
legal representation.
The committee promotes and encourages pro bono work
throughout the legal profession, and makes a number of recommendations designed
to facilitate the provision of pro bono legal services, including, for example,
the introduction of a mandatory pro bono legal work requirement for all classes
of practising certificate.
Legal aid commissions
The report continues with a more detailed examination of the
adequacy of funding to legal aid commissions, particularly under the Legal Aid
Program, including government levels of funding, areas of unmet legal need, the
Commonwealth/state funding divide, the Federal Financial Relations Framework,
and the Legal Aid Priorities and Guidelines.
The committee heard that there are areas of law not
sufficiently funded for the provision of essential legal aid, namely family law
and civil law services. Part of this problem is reflected in the adoption and
implementation of strict means tests which set unrealistic eligibility
criteria. The committee is concerned that the lack of legal aid funding adversely
affects the best interests of children, as well as those members of the Australian
community who are most disadvantaged.
For this reason, the committee recommends an increase in
funding for the Legal Aid Program, the development and implementation of realistic
and consistent national means test income and assets levels (with inbuilt
inflators), and the development and implementation of a national civil law
program in identified high need areas.
Evidence to this inquiry, as with earlier inquiries,
continued to express dissatisfaction with the Commonwealth/state funding
divide, which, it was argued, arbitrarily distinguishes between Commonwealth
and other law matters, complicating effective service delivery. The committee reaffirms
its preference for the abolition of the 'purchaser/provider' funding
arrangements which create the controversial divide.
Cost
The fourth chapter broadly examines the financial cost of
delivering justice by canvassing the annual costs of the federal court system,
the cost of disbursements in litigation matters, exposure to adverse costs
orders, and the cost of legal representation.
Evidence stated that financial costs inhibit individuals' access
to justice, with potential and actual litigants unable to afford disbursements,
and various inconsistent disbursement schemes not able to significantly dispel
the barrier. The committee considers this impediment capable of remediation,
and recommends that governments develop and implement uniform disbursement
funds throughout Australia, including for pro bono legal matters. Also in
relation to such matters, the committee recommends that the indemnity principle
be abrogated to encourage legal practitioners to accept pro bono clients.
On a different front, the
committee also heard that the high cost of private legal representation and relatively
low remuneration scales for private practitioners undertaking legal aid work
inhibit individuals' access to legal representation. After acknowledging the
invaluable role of the private legal profession in the legal aid system, the
committee recommends a nationwide review and modernisation of legal aid fee
scales (with inbuilt inflators) so as to promote practitioners' continued
participation in the system.
Length, complexity and efficiency
During the inquiry, the committee investigated measures to
reduce the length and complexity of litigation, and improve efficiency, particularly
measures relating to civil and family law litigation, and self‑represented
litigants.
The committee heard that people with limited financial
resources cannot afford lengthy, complex and inefficient litigation, and that a
number of civil and family law courts have introduced targeted measures to
improve these people's access to justice. The committee commends the courts concerned
for these proactive measures which should enable more Australians to access the
judicial system, and encourages all courts without such measures to consider
their implementation in the very near future.
Self‑represented litigants experience particular
difficulties accessing justice, and the number of such litigants is by all
accounts increasing (for various reasons). While much has been said regarding
the impact of self‑represented litigants on the judicial system, the
committee expresses concern at the apparent lack of relevant empirical data,
and the quality of justice that self‑represented litigants are able to
achieve.
Accordingly, the committee recommends that governments
commission research to quantify the economic effects that self‑represented
litigants have on the judicial system, as well as funding the establishment of
a comprehensive duty solicitor scheme in high need areas throughout Australia.
Alternative means
In addition to judicial measures, the committee examined
alternative means of delivering justice, including early intervention and
prevention, alternative dispute resolution, restorative justice, justice
reinvestment, clinical legal education, and Indigenous specific issues.
The committee found that early intervention and 'triage'
serve an invaluable purpose in diverting people away from the justice system on
more appropriate, efficient and cost effective pathways. The committee also
found that a holistic approach would most benefit those members of the
community experiencing multi‑facetted and complex problems, and commends
those legal assistance service providers who have adopted this client‑focussed
approach.
The committee heard that restorative justice programs are an
alternative and more capable means of delivering justice than the traditional
criminal justice system, particularly for Indigenous peoples who are over‑represented
in that system. The committee makes a recommendation for the Australian
Government to consider funding a number of restorative justice pilot programs
in areas where there is an over‑representation of offenders in the
criminal justice system.
A related topic was justice reinvestment where the committee
approves the concept of diverting funds from incarceration to community‑based
programs and services that address the underlying causes of crime. The
committee notes that this policy could result in reduced rates of incarceration
and significant costs‑savings, better outcomes for both individuals and
governments.
The committee encourages state and territory governments to
promote these outcomes, financially and by reviewing local policies and laws
which have the effect of increasing rates of incarceration. The committee
recommends also that governments fund and develop a targeted justice
reinvestment pilot program in the criminal justice system.
Community legal centres
Picking up on an earlier thread, the report then examines
the adequacy of funding to community legal centres under the Community Legal
Services Program, including funding levels, areas of unmet legal need, and
recruitment and retention issues.
The committee heard criticisms of the highly unpredictable
application‑based grants process, whose replacement with a new funding
model was recommended in March 2008. The committee recommends that the
development of that model be expedited for the benefit of all community legal
centres.
As with legal aid commissions, the committee also heard
significant criticisms of core funding levels, the low level of which, it was
said, results in community legal centres not being able to deliver services, retain
staff or properly resource their work environment. The committee acknowledges
the cost-benefit of centres, and considers that they need to be properly funded
to cope with demand presenting and not presenting at their doors.
However, as a necessary corollary of increased funding, the
committee considers it reasonable to review and where necessary introduce accountability
and transparency requirements, for example, measurable key performance
indicators and benchmarks for all publicly funded community legal centres. Accordingly,
the committee makes two targeted recommendations, including an increase in
funding for community legal centres, subject to enhanced accountability and
transparency requirements.
Indigenous legal services
The final chapter of this report concerns the ability of
Indigenous people to access justice, and covers topics such as an appropriate
legal assistance service, the adequacy of funding to Aboriginal legal services,
including Family Violence Prevention legal services, and the Indigenous Law and
Justice Framework.
Again, the committee heard significant criticisms of core
funding levels, particularly as compared to other legal aid service providers
and notwithstanding additional expenses associated with the provision of
Indigenous legal services. The committee is concerned that this adversely
impacts on one of the community's highest needs groups, Indigenous Australians
and their ability to access justice.
The committee therefore recommends increasing the level of
funding for Indigenous legal services (with loadings for additional expenses),
as well as recommending that governments inquire into and report on joint funding
for the Legal Aid for Indigenous Australians program with a view to more
equitably apportioning responsibility for the provision of legal aid services
to Indigenous peoples.
Language was a specific barrier to access to justice. The
committee heard that interpreter services throughout Australia are limited in
their capacity to provide translation services and whilst essential, and when
available, legal aid providers are not able to afford such services. The
committee recommends a partial solution, increased funding to court‑based
interpreter services, but considers that non‑financial solutions such as
enhancing English language skills among Indigenous communities must also be
explored, a matter beyond the scope of this inquiry.
The committee heard that Indigenous legal services
experience difficulty attracting permanent and experienced legal practitioners
due to demanding working conditions and relatively low levels of remuneration.
The committee agrees that this impacts on the consistency and quality of legal
services provided to Indigenous peoples, and recommends that it be addressed,
commencing with a joint government review of current salary levels across legal
aid commissions and Indigenous legal services, and followed by proposals for salary
level reforms.
The committee also received evidence concerning Indigenous
women's chronic disadvantage in their ability to access justice, including in
relation to domestic/family violence and sexual assault. In this regard, the
committee considers it highly important for governments to provide Indigenous
women with appropriate victim support measures, as well as addressing their
legal needs.
However, the committee
heard that some Indigenous legal services are inaccessible to Indigenous women
due to perceived or actual conflicts of interest, and also the limited location
of some services. Fundamentally, the committee noted evidence that Indigenous
women's needs are not being met because they are not involved in the strategic
development of Indigenous women's legal services. The committee therefore supports
the development of targeted Indigenous women's law and justice strategies.
Summary
The committee considers that the legal system is not
sufficiently providing members of the Australian community with access to
justice. The inquiry highlighted numerous areas where reforms would be
beneficial, and the committee makes findings and recommendations, as
appropriate.
Clearly, weaknesses in the legal system could be partially
rectified, or rectified in the short‑term, with increased, and targeted,
levels of funding. However, in the current economic climate, this might not be
feasible. Nor would it be necessarily prudent.
The inquiry emphasised what was has been said before,
including to previous committee inquiries: that the Australian legal system is
beset with various weaknesses, some endemic, some deeply rooted and some based
in non‑legal causes, all of which are interconnected, thus requiring
large scale rather than microeconomic reforms.
The committee is not convinced that the weaknesses in the
legal system have been appropriately recognised, or identified, making
remediation nigh on impossible. In the committee's view, this has concurrently
lead to long‑term and on‑going criticisms, reviews and inquiries
into the system, none of which are ultimately productive.
The committee advocates a decisive commitment on the part of
all governments, all legal service providers, the legal profession and all
other interested stakeholders if Australia is to have a strong, viable and cost‑effective
legal system.
However, the committee has reservations as to whether there
is enough will and impetus to embark on a large scale reform of the legal
system, and if there were, when practical reforms might reasonably occur.
Consequently, in this report, the committee makes recommendations
focussed upon short‑term solutions, with the express provision that the
committee does not view these recommendations as the ultimate solution to
achieving a strong and appropriate legal system for all Australians.
The committee urges all governments to bear in mind that the
legal system is currently afloat, arguably badly, due to a considerable amount
of goodwill, but that this could evaporate at any time, creating a crisis in
the delivery of legal services and resulting in diminished access to justice
for many Australians.
The committee commends informed forward planning. At
present, reforming the legal system might appear difficult, onerous and
expensive, but the committee believes that, ultimately, the investment of
effort, time and money will result in significant benefits to all concerned.
Otherwise, the committee predicts that within a decade it will again be
inquiring into a failing, or failed, legal system and asking, 'why wasn't
something done about this ten years ago?'
Navigation: Previous Page | Contents | Next Page