The Productivity Commission raised a few eyebrows when it called for an additional A$200 million for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped to deal with, legal disputes”.
In justifying its unusual call for this significant funding injection, the commission’s report, which was tabled in parliament last week, found:
… numerous studies show that efficient government-funded legal services generate net benefit to the community.
Behind this headline call is a detailed final report of more than 1000 pages. It makes 83 recommendations to improve access to justice in Australia.
Why change is needed
In its draft report, the Productivity Commission found that half of all Australians will experience a legal problem this year. Most won’t get legal assistance or come into contact with our courts or other legal institutions.
In part, this is because Australia’s legal system is “too slow, expensive and hard to understand”.
As the commission concludes:
The ability of individuals to enforce their rights can have profound impacts on a person’s well-being and quality of life … a well-functioning civil justice system serves more than just private interests – it promotes social order, and communicates and reinforces civic values and norms … There can also be fiscal benefits.
Prompt, affordable and well understood dispute resolution arrangements can help avoid issues escalating into more serious problems that can place burdens on health, child protection and other community welfare services.
An economist’s perspective
Importantly, the Productivity Commission has brought an independent, economic analysis to the archaic practice of law.
As US legal academic Edgar Bodenheimer observed almost 70 years ago, the legal profession has long been:
… criticised for being behind the times, for opposing progress and change, and for clinging to the legal traditions of ages long past.
Without this baggage and a need to defer to the profession’s “sacred cows”, the Productivity Commission’s pro-market analysis is novel and has resulted in useful recommendations. These include:
- ensuring legal complaint bodies can discipline lawyers for high-cost or low-quality services;
- reviewing the three stages of legal education (university, practical legal training and continuing professional development);
- removing advertising bans and restrictions on litigation funding;
- reviewing professional indemnity insurance arrangements and trust account regulations; and
- investigating a new limited licence for family law.
It is unlikely that a review undertaken by lawyers would have reached these same conclusions. This justifies the government’s decision to refer the inquiry to the Productivity Commission.
Legal services for disadvantaged people
It is fair to say that market principles are unlikely to resolve the legal problems of the most marginalised and disadvantaged people in the community. As the commission found:
Disadvantaged people face a number of barriers in accessing the civil justice system, which make them both more susceptible to, and less equipped to deal with, legal disputes. If left unresolved, civil problems can have a big impact on the lives of the most disadvantaged. The Commission was given many examples of simple problems spiralling into complex problems when legal assistance was not provided. Unmet civil problems can also escalate into criminal matters.
Notwithstanding the proposed reforms, differences in personal resources and capabilities mean that the most vulnerable Australians may still find the system inaccessible. There remains a role for government in assisting these individuals to uphold their legal rights and resolve their civil (including family) law disputes.
It is in this area that the Productivity Commission recommended an additional $200 million annual funding from the Commonwealth, states and territories. It made other sensible suggestions, including:
- “unbundling” legal services;
- better co-ordinating pro bono services, recognising that these contribute less than 3% of legal assistance services required;
- investigating the appropriateness and effectiveness of family dispute resolution schemes;
- funding strategic advocacy and law reform activities that seek to identify and remedy systemic issues and so reduce demand for frontline services;
- making eligibility principles for grants of legal aid consistent;
- reversing funding cuts to Aboriginal and Torres Strait Islander legal services and ensuring continuation of Aboriginal Family Violence Legal Services; and
- improving the collection and communication of data and evaluation.
It is difficult to argue with any of the Productivity Commission’s recommendations, although some will. There are already concerns about some of the report’s findings of fact. Implementing the recommendations will require significant resourcing and goodwill from governments, service providers, funders and policymakers.
Co-ordinating existing services and identifying priorities will be vital. This may require agencies to initiate new services or close existing ones. However, as the commission concluded, the capacity for “finding economies” is limited, which is what led to the headline conclusion, to dramatically increase funding.
The Productivity Commission rightly identified widespread concerns that the civil justice system is too slow, too expensive and too adversarial. With sensible reforms, collaborative and co-operative implementation, and a significant increase in government funding, we may be able to improve Australia’s system and truly deliver access to justice.