tag:theconversation.com,2011:/global/topics/access-to-justice-9848/articlesAccess to justice – The Conversation2023-07-06T10:56:21Ztag:theconversation.com,2011:article/2085952023-07-06T10:56:21Z2023-07-06T10:56:21ZGhana’s new chief justice: Gertrude Tokornoo faces challenges, but could help transform the country’s courts<figure><img src="https://images.theconversation.com/files/535348/original/file-20230703-258594-pujhvu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The role of Chief Justice in Ghana comes with significant authority </span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p><em>Her Ladyship Gertrude Araba Esaaba Sackey Torkornoo took office as the 15th ,chief justice of Ghana on 12 June 2023. She is the third woman to occupy the position, which is the fourth highest in the country after the president, vice-president and speaker of parliament. Ghana’s judiciary is made up of the supreme court, the court of appeal, high court and magistrate (district) court. The chief justice is at the top of the judicial hierarchy and serves as administrator and supervisor.</em></p>
<p><em>The supreme court has power, as the highest court, to interpret Ghana’s constitution and has final authority in determining what the law is. It can determine whether any acts of parliament or the president violate the constitution.</em> </p>
<p><em>Kwadwo Appiagyei-Atua, associate professor of public international law at the school of law, University of Ghana, sets out the biggest challenges facing Justice Torkornoo.</em></p>
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<h2>What should be the new chief justice’s immediate areas of concern?</h2>
<p>It is hoped that the chief justice will help bring justice closer to poor Ghananians, who are the majority, especially those living in rural and peri-urban areas.</p>
<p>The <a href="https://www.newyorkconvention.org/11165/web/files/document/2/1/21387.pdf">Alternative Dispute Resolution</a> project started by Georgina Woode, a former chief justice, should be sped up and spread across the entire country. This project aims to resolve disputes outside the law courts. It is also cheaper and faster than a traditional court process. </p>
<p>It is also suggested that the chief justice consider setting up small claims courts across the country to resolve disputes through informal procedures. This will improve access to justice.</p>
<p>Another issue that will require the chief justice’s urgent attention is the reform of legal education in Ghana. There is a <a href="https://asaaseradio.com/lecturer-adopt-triple-track-system-at-ghana-school-of-law-to-deal-with-mass-failure/">backlog of about 3,000</a> students awaiting admission to enter the Ghana School of Law to obtain their professional degrees. The reason for the backlog is that the school is the sole avenue for professional certification.</p>
<p>One suggestion has been that the school be broken up to enable more student admissions. This would improve the lawyer-population ratio, which is still low. Currently the ratio stands at one lawyer to 3,000 citizens. An acceptable ratio would be 1:300.</p>
<p>Finally, as rightly <a href="https://www.youtube.com/watch?v=WR8lorWrX0g&t=4s">noted</a> by the new chief justice during her vetting, digitisation of the court process and expansion of infrastructure for the judiciary, especially in the rural communities, should be taken seriously. </p>
<p>The new chief justice has been at the forefront in the push for digitisation, including working with <a href="https://lrcghana.org/ghanas-case-tracking-system-chalks-success-so-far/">Ghana Case Tracking System</a>. The system is aimed at improving the ability to track criminal cases from their introduction into the system to prosecution in court, and to improve information sharing and coordination among Ghana’s law enforcement and judicial authorities.</p>
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<h2>What are the big issues facing the judiciary?</h2>
<p>The new chief justice comes to power at a time when Ghana’s judiciary is confronted by a number of concerns and challenges. Among these are corruption, inefficiency and bottlenecks. </p>
<p><strong>Corruption:</strong> A <a href="https://www.afrobarometer.org/wp-content/uploads/2022/02/ab_r8_dispatchno347_high_cost_bias_delays_prevent_ghanaians_from_using_justice_system.pdf">survey</a> conducted by the independent research network Afrobarometer in 2020 showed that the perception that, at least, some judges and magistrates are corrupt has been consistently high. More than 85% of Ghanaians said “some” judges and magistrates were corrupt, and 40% said this about “most” or “all” court officials.</p>
<p><strong>Inefficiency:</strong> One area of inefficiency is tardiness in the delivery of justice in time-sensitive cases. This has in turn raised concerns about the abuse of executive power. Recent judgments by the supreme court reflect this reality. In <a href="https://cddgh.org/csos-go-to-supreme-court-over-auditor-general-daniel-domelevos-forced-leave/">Ghana CDD & 8 Others v Attorney-General</a>, the plaintiffs challenged the <a href="https://citinewsroom.com/2020/06/akufo-addo-directs-domelevo-to-proceed-on-accumulated-leave-beginning-july-1/">decision of the president</a> to order the then auditor-general to proceed on his accumulated leave and retirement. The action, filed in November 2020, called for the reinstatement of the dismissed auditor-general and asked the court to declare his dismissal and the subsequent appointment of an acting auditor-general unconstitutional. </p>
<p>It took the supreme court over two years to <a href="https://citinewsroom.com/2023/05/supreme-court-declares-akufo-addos-directive-for-domelovos-forced-leave-unconstitutional/">deliver a unanimous decision</a> declaring the act of the president unconstitutional. By then it was too late to return the dismissed auditor-general to office, though the decision sets a good precedent to guide the future conduct of the executive. </p>
<p><strong>Bottlenecks:</strong> The biggest concern, as raised in the <a href="https://www.afrobarometer.org/wp-content/uploads/2022/02/ab_r8_dispatchno347_high_cost_bias_delays_prevent_ghanaians_from_using_justice_system.pdf">Afrobarometer survey</a>, is access to justice for poor Ghanaians who make up most of the population. </p>
<p>Respondents said engaging with the justice system was too expensive. As reported <a href="https://theconversation.com/ghanas-justice-system-needs-a-major-overhaul-heres-what-should-be-done-88724">by the dean of the Ghana School of Law</a>, Ghanaians are charged a Ghc 20,000 (USD$4,407) filing fee to make a bona fide claim exceeding Ghc 100,000,000 and a Ghc 1,500.00 (USD$330) filing fee to recover one million cedis in an insurance claim. Access to justice is restricted by such high fees. </p>
<p>Most judges and magistrates have unimpeachable records on the bench. Thus, while not all that has been said about the judiciary may be true, the perceptions exist and perceptions feed into reality. No public relations exercise or rebranding can change this perception of the people about the judiciary. It should reflect in the life of the judiciary and how judges and judicial staff conduct themselves on the bench and outside the court room. </p>
<p>The chief justice needs to be bold, assertive and uncompromising in her work to restore the image of the judiciary. </p>
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<img src="https://counter.theconversation.com/content/208595/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kwadwo Appiagyei-Atua does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana’s judiciary has a public relations problem that requires an urgent fix.Kwadwo Appiagyei-Atua, Associate Professor of Law, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070452023-06-07T16:48:56Z2023-06-07T16:48:56ZThe legal aid sector is collapsing and millions more may soon be without access to justice – new data<figure><img src="https://images.theconversation.com/files/530326/original/file-20230606-21-c0vhx5.jpg?ixlib=rb-1.1.0&rect=232%2C100%2C4935%2C3337&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A sector on the verge.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/law-offices-lawyers-legal-statue-greek-618830477">edwardolive/Shutterstock</a></span></figcaption></figure><p>The UK government has <a href="https://www.gov.uk/government/consultations/legal-aid-means-test-review/outcome/government-response-to-legal-aid-means-test-review--3">announced changes</a> to legal aid access in England and Wales, updating means test thresholds to account for inflation. These thresholds are the maximum amount of capital or income that a person can have to be eligible for legal assistance at public expense. </p>
<p>Under these changes, the government estimates that over 2 million more people will be eligible for civil legal aid each year. Eligibility, though, is not the same as access. The reality is that fewer and fewer people have access to civil legal aid advice and representation, because provision is collapsing. </p>
<p>Civil legal aid covers issues like housing, mental health, community care, immigration and asylum, and family law. The scope of these was much reduced by austerity measures in the Legal Aid, Sentencing and Punishment of Offenders <a href="https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">(LASPO)</a> Act 2012. </p>
<p>I obtained legal aid provision figures from the Ministry of Justice’s Legal Aid Agency, via a freedom of information request, covering the 12 months from September 2021 to August 2022 (the last full year available). The numbers, combined with <a href="https://www.gov.uk/government/publications/directory-of-legal-aid-providers">publicly available data</a>, paint a picture of a collapsing sector. </p>
<p>There was a 20% <a href="https://www.lag.org.uk/article/214219/the-new-lord-chancellor-faces-a-legal-aid-sector-on-the-verge-of-collapse">reduction</a> in the number of housing legal aid providers in the 18 months to March 2023. The same period saw a 21% loss of legal aid providers for mental health, and a 27% loss in welfare benefits. In immigration and asylum, over 30% of the providers given contracts in September 2018 had stopped doing legal aid work by March 2023.</p>
<p>Providers (private law firms or charities) are given contracts by the Legal Aid Agency to provide legal aid in specific areas of law – but they cannot be compelled to take on cases.</p>
<p>In fact, the current situation is worse than even these figures suggest, because 30% of the housing provider offices (129) did not undertake any new legal aid cases in the year to 31 August 2022. Nine of the 131 geographical “procurement areas” in England and Wales saw no new housing cases opened in that year. </p>
<p>Often, this is because they are unable to recruit any qualified lawyers on the salaries available, or because they cannot afford to take on legal aid cases. Others take on very small numbers of cases because they are at capacity, given the number of lawyers they can afford. </p>
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Read more:
<a href="https://theconversation.com/legal-aid-at-70-how-decades-of-cuts-have-diminished-the-right-to-legal-equality-120905">Legal aid at 70: how decades of cuts have diminished the right to legal equality</a>
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<p>In welfare benefits, a staggering 71% of offices did not report any new legal aid cases in the year, though this is largely because legal aid is now only available for Upper Tribunal and higher court appeal cases. </p>
<p>Even in community care, which was much less affected by the LASPO cuts, 41% of the 127 contracted offices undertook no new legal aid matters in the year, and 17% of offices stopped doing legal aid work in the 18 months to March 2023. Only ten new matters were reported in the north-east of England, and 12 in the south-east (excluding London).</p>
<h2>Demand outstripping supply</h2>
<p>Importantly, these figures do not indicate a lack of demand for the services of legal aid providers. In asylum, the last year saw <a href="https://rli.blogs.sas.ac.uk/2022/11/04/new-freedom-of-information-data-indicates-half-of-asylum-applicants-are-unable-to-access-legal-aid-representation/">at least 25,000</a> more applicants for legal aid than providers had capacity to take on. This is at least a 45% deficit, and only includes main applicants (not their dependants).</p>
<p>A housing lawyer <a href="https://www.lawgazette.co.uk/news-focus/news-focus-laspo-at-10-can-the-damage-be-undone/5115627.article">described</a> having so much demand at her firm that they have to allocate a senior solicitor to triage the most desperate cases, turning away the rest. </p>
<p>There is a clear regional inequality to provision of legal aid. For example, the Legal Aid Agency <a href="https://www.gov.uk/government/news/civil-news-further-tender-to-replace-hpcds-services-opens">failed</a> to find any providers at all for 11 areas to deliver its new, court-based early advice scheme to prevent housing loss. </p>
<p>Legal aid providers report difficulties recruiting across all areas of law, given the loss of lawyers and the overall low fees. Civil legal aid fees have <a href="https://publiclawproject.org.uk/content/uploads/2023/01/230123_New-Fees-for-New-Services-consultation-response-ILPA-PLP-statement.pdf">not increased at all</a> since fixed fees were introduced for most work in 2007, and have fallen significantly in real terms. </p>
<p>There is also a huge amount of unpaid admin and bureaucracy imposed by the Legal Aid Agency. There are serious delays in payment to providers because most work is paid for at the end of the case. But lawyers often cannot close and bill their cases because of slow processing by government departments and the courts.</p>
<h2>An unworkable policy</h2>
<p>Even after the <a href="https://lapg.co.uk/lapg-statement-on-the-governments-published-response-to-the-legal-aid-means-test-review/">means test changes</a>, in England and Wales the new limits to qualify for legal aid are £7,000 in capital (such as savings and other financial assets) and gross income of no more than £946 a month (£11,352 per year), with additional allowances for dependants. A person might also qualify for legal aid, but have to pay a contribution, if they have a disposable (rather than gross) income of up to £946 per month.</p>
<p>There is no regular review mechanism to update these limits in line with inflation. Critics point out that this consultation, launched in March 2022, was already out of date by the time the response was published in May 2023.</p>
<p>There is <a href="https://walkerlaird.co.uk/legal-aid-in-scotland-a-guide-to-eligibility-legal-aid-contributions/">greater eligibility</a> in Scotland. The threshold for capital is £13,017 and the disposable income threshold for full legal aid is £3,521 per year. Clients with disposable incomes of up to £26,239 remain eligible to pay legal aid rates rather than private rates, though they may have to contribute more as their income goes up.</p>
<p>The UK’s legal aid capacity crisis has been a long time building, but it has come to a head with cost of living concerns – and is likely to become even sharper with the government’s plans to <a href="https://theconversation.com/how-the-uks-plan-to-send-asylum-seekers-to-rwanda-is-21st-century-imperialism-writ-large-181501">remove asylum seekers to Rwanda</a>. Civil servants have reportedly warned the government that it will <a href="https://www.theguardian.com/uk-news/2023/may/25/braverman-bill-could-lead-to-3000-asylum-seekers-being-deported-a-month">have to increase legal aid fees</a> for asylum work, otherwise it will be impossible for people to access legal advice before being removed. </p>
<p>If the UK government fails to ensure the viability and availability of legal aid, there will be no more lawyers to provide advice and representation for millions of <a href="https://theconversation.com/the-home-office-is-sabotaging-its-own-plan-to-tackle-the-asylum-backlog-200759">newly-eligible</a> (and desperately needy) people. This is what happens when legal aid is cut too far. The system survives for a period of time on goodwill, and then it collapses.</p><img src="https://counter.theconversation.com/content/207045/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo Wilding receives funding from the ESRC for the research on which this article is based.</span></em></p>Numbers obtained through a freedom of information request reveal the dire state of the legal aid sector in England and Wales.Jo Wilding, Lecturer in law, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1716632021-11-12T01:30:14Z2021-11-12T01:30:14ZNew Zealand’s legal aid crisis is eroding the right to justice – that’s unacceptable in a fair society<figure><img src="https://images.theconversation.com/files/431603/original/file-20211112-638-vumywu.jpg?ixlib=rb-1.1.0&rect=19%2C9%2C6557%2C2544&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Most lawyers are happy to accept we’ll never be as popular as doctors. We are probably on a level with dentists: nobody really wants to see them – until they have a toothache. </p>
<p>Same with lawyers. Having to sort out a legal dispute without a lawyer can often be as problematic as doing dentistry on yourself. </p>
<p>Disputes about all sorts of things – bullying bosses, violent spouses, governmental overreach, custody of children, what happens to people with dementia – can end up in court. Judges are given significant powers over us. They can take away liberty, property and children; they can order psychiatric treatment. </p>
<p>That is why the right to a fair trial is such a fundamental one – and why the legal aid system is integral to that fairness. So, the recent
<a href="https://www.lawsociety.org.nz/news/law-society-statements/thousands-suffer-in-justice-squeeze-legal-aid-a-covid-response-crisis/">Law Society survey of lawyers</a> that found the legal aid system is “on life support” is cause for deep concern.</p>
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<h2>Balancing the odds</h2>
<p>Our court system is largely based on the adversarial model, whereby arguments are made from those involved and the neutral judge (or judge and jury) makes a decision. This requires what is termed “equality of arms” – essentially, equal access to lawyers. </p>
<p>Otherwise, there is an imbalance, which might lead to an unfair result with significant adverse consequences. This is also why legal aid is of fundamental importance to a society that values equity. </p>
<p>Governments, corporations and well-resourced organisations will invariably have lawyers. Society pays for these in full if they are working for public bodies. Society also pays in part for lawyers who represent commercial bodies, since their fees will be allowable against income and so, will reduce taxes paid. </p>
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<p>It has long been accepted that society has to provide lawyers for those who face the power of the state in criminal proceedings. In 1912, the New Zealand Parliament <a href="http://www.nzlii.org/nz/legis/hist_act/jotpaa19123gv1912n12345/">enacted a legal aid system</a> for criminal defendants who did not have sufficient means. The starting point was to pay those lawyers at the same rate as prosecuting lawyers. </p>
<p>But many important decisions are also made in the civil courts. A <a href="http://www.nzlii.org/nz/legis/hist_act/laa19393gv1939n42144/">legal aid scheme for civil proceedings</a> was introduced in 1939, aimed at “poor people”. </p>
<p>When the system was <a href="http://www.nzlii.org/nz/legis/hist_act/laa19691969n4791/">revised and extended in 1969</a>, the aim was to make better provision for those of “small or moderate means”. This also proposed that legal aid lawyers should be paid 85% of the rate they would otherwise have charged. </p>
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<h2>Lawyers abandoning legal aid</h2>
<p>Much has changed since. If you get legal aid now, it is in the form of a loan – rarely written off – <a href="https://www.rnz.co.nz/news/in-depth/453297/kiwis-in-need-of-legal-aid-stung-by-interest-that-outstrips-mortgage-rates">bearing interest</a> and leading to caveats on any assets. </p>
<p>But it is more likely you won’t be granted legal aid at all, because only those with <a href="https://www.legislation.govt.nz/regulation/public/2011/0144/latest/DLM3743601.html?src=qs">severely constrained resources</a> qualify. </p>
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<p>And, as the Law Society survey shows, even if you do qualify there is a good chance you won’t be able to find a lawyer. The survey found over 60% of lawyers have no interest in doing legal aid work. Of those who are willing, many have to limit the numbers of cases they can take on. </p>
<p>This means legally aided clients are more likely to be turned away. The situation will probably worsen, too, because a quarter of those willing to do legal aid are planning to do less in the future. </p>
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<h2>Red tape and low pay</h2>
<p>Among the other problems identified by the surveyed lawyers is the level of bureaucracy they face. This can be traced back to a <a href="https://www.beehive.govt.nz/sites/default/files/Legal%20AidReview.pdf">review of legal aid</a> in 2009, which led to the current legislative framework under the Legal Services Act 2011. </p>
<p>The review placed a heavy reliance on anecdotal evidence of misbehaviour by some lawyers. It has always been true that legally aided spending has to be justified, but the current regime seems to be micro-managed.</p>
<p>The other significant problem is that legal aid <a href="https://www.rnz.co.nz/news/is-this-justice/453369/legal-aid-system-broken-and-may-collapse-chief-justice">pay rates are low</a> and haven’t changed for many years. It’s not just that lawyers can earn more – a lot more – if they avoid legal aid. It’s that legal aid rates sometimes barely cover their costs. </p>
<p>When legal academics ask law students why they want to be lawyers, the desire to help people in difficult situations is a common answer. This can be especially true for students from groups who face more disadvantage, including Māori, Pacific Island and refugee communities. </p>
<p>But those desires can only go so far if the work does not provide a living.</p>
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Read more:
<a href="https://theconversation.com/criminal-lawyers-are-regularly-exposed-to-trauma-how-can-nzs-justice-system-look-after-them-better-167625">Criminal lawyers are regularly exposed to trauma — how can NZ's justice system look after them better?</a>
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<h2>Eroding the right to justice</h2>
<p>Of course, it is easy to be cynical about lawyers asking for funding for lawyers. This comes back to the image problem. Contrast it with medical professionals calling for a better-funded health service, including better pay for doctors and nurses. The public is generally sympathetic.</p>
<p>But just as access to health is a good thing, so is access to justice. They are both prerequisites for a decent society.</p>
<p>If we go back to the origins of legal aid, it involved a recognition that relying on charity was not an appropriate response when the stakes are high. There was an acceptance fair trials are a keystone of the justice system, and legal aid can contribute to equal access to justice for all. </p>
<p>This right to justice is recognised in the <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html">New Zealand Bill of Rights Act 1990</a>. But it is being hollowed out as time goes by, as fewer people can obtain legal aid and fewer lawyers are willing to do such work. </p>
<p>The Law Society survey suggests urgent action is required to avoid a justice gap that should be unacceptable in modern New Zealand.</p><img src="https://counter.theconversation.com/content/171663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill is affiliated with the Criminal Bar Association, which represents both defence and prosecution lawyers, and regularly works with lawyers, including those who undertake legally aided work; he used to be a barrister in England and Wales, where the majority of his work was paid under legal aid. </span></em></p>As the Law Society recently reported, legal aid in New Zealand is ‘on life support’. Urgent action is required to avoid the justice gap becoming a chasm.Kris Gledhill, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209052019-07-29T11:52:19Z2019-07-29T11:52:19ZLegal aid at 70: how decades of cuts have diminished the right to legal equality<figure><img src="https://images.theconversation.com/files/286025/original/file-20190729-43122-1evue9v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Access to justice has been diminished by swinging budget cuts in England and Wales</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/closeup-lawyers-hand-protecting-justice-scale-571649245?src=dSLcGhWwAgqL15lm0uWcow-1-8&studio=1">Andrey_Popov/Shutterstock</a></span></figcaption></figure><p>Happy birthday <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">legal aid</a>! For 70 years, the people of England and Wales have <a href="https://api.parliament.uk/historic-hansard/acts/legal-aid-and-advice-act-1949">enjoyed the right</a> to be provided legal assistance at public expense if they cannot afford a lawyer.</p>
<p>Despite the importance of legal aid as a means to achieve social justice, the scheme is now a shadow of what it was once intended to be. Degraded by successive governments, legal aid is increasingly criticised for funding the defence of those seen as not “deserving” it. It is often <a href="https://www.lawgazette.co.uk/news/shamima-begum-case-pushes-legal-aid-into-national-spotlight/5070002.article">framed negatively</a> in the press, with outrage that “taxpayers’ money” is supposedly being <a href="https://www.itv.com/goodmorningbritain/news/fugitive-speedboat-killer-used-100000-in-legal-aid-to-fund-appeal-for-manslaughter-conviction">“given” to convicted criminals</a> instead of <a href="https://www.dailymail.co.uk/news/article-6921827/Shamima-Begum-legal-aid-despite-stripped-UK-citizenship.html">victims and their families</a> – a false dichotomy that seeks to diminish the rights of many of those who qualify for legal aid.</p>
<p>The very principle of legal aid is to ensure that everyone has equal access to advice and representation in order to uphold their rights. But antagonistic attitudes have fuelled negative public perception of the scheme, allowing large cuts to take place. This has been <a href="https://www.theguardian.com/politics/2013/jan/09/skivers-v-strivers-argument-pollutes">heightened under austerity</a>, allowing protections for society’s most vulnerable to be savaged in the name of claimed economic necessity. </p>
<p>The legal aid system now is under-resourced, with great pressure on those who provide advice and representation, and too often <a href="https://www.waterstones.com/book/the-secret-barrister/the-secret-barrister/9781509841141">lets down those people most in need</a>.</p>
<h2>Justice politicised</h2>
<p>Legal aid <a href="https://api.parliament.uk/historic-hansard/commons/1948/dec/15/legal-aid-and-advice-bill">was introduced</a> “for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right”. Sitting alongside the welfare state, the idea was that people needed recourse to a properly funded system of legal advice to enforce their welfare rights through the courts if necessary. In the decades after its launch, the reach of legal aid was expanded to include other areas of civil law, before criminal cases were included from the 1960s.</p>
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<p>The cost of legal aid became highly politicised after the increasing budget – which quadrupled between <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">1985 and 1995 to £1.4 billion</a> – became a bone of contention for governments keen on reducing expenditure. The Conservatives decreased eligibility for civil legal aid from 1987 onwards, making it available to only those on the lowest incomes (<a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">to less than half of the UK’s population</a>, when it was once available to more than three quarters of people. At the same time, new rules meant almost 10% of those who used legal aid had to pay towards it.</p>
<p>When Tony Blair became prime minister in 1997 under a Labour government, he maintained the focus on curbing legal aid, as war was raged against <a href="https://www.thetimes.co.uk/article/blair-was-wrong-to-brand-lawyers-fat-cats-says-ally-kns7zjmql">demonised “fat cat” legal aid lawyers</a>. The budget continued to rise, however, reaching over £2 billion during Blair’s time in office. This was in large part due to massive amounts of <a href="https://www.theguardian.com/commentisfree/2017/aug/31/tough-on-crime-prisons-crisis-prisoner-numbers">new legislation and criminal offences</a>. Crown Prosecution Service costs went up massively too, as Blair sought to tackle persistent offending and antisocial behaviour – without acknowledging how that added to the legal aid bill. </p>
<p>From 2012, the coalition government dramatically cut £751m from the £2.2 billion legal aid fund through the <a href="https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">Legal Aid Sentencing and Punishment of Offenders Act</a> (LAPSO). This was primarily achieved through reducing lawyers fees, and removing large parts of public funding for social welfare law – despite this area being one which people on low incomes, who are typically disadvantaged, are prone to experience difficulties with.</p>
<p>In the year before the reforms, 91,000 people received legal advice for welfare benefits cases. After LASPO, legal advice fell by 99% to just 478 people. And this at a time when problems with <a href="https://www.theguardian.com/society/2019/apr/04/study-found-universal-credit-causing-hardship-a-year-and-half-ago">new benefits such as Universal Credit</a> and the “<a href="https://www.theguardian.com/careers/2017/may/22/cruel-and-humiliating-why-fit-for-work-tests-are-failing-people-with-disabilities">cruel and humiliating</a>” fit-to-work tests meant people were likely to need advice more than ever. </p>
<h2>Justice constrained</h2>
<p>Austerity doubly hits the poorest communities. It restricts access to services and benefits, while making it harder to challenge the decisions of the state. As legal aid has been diminshed, access to justice has become more difficult in other ways too. <a href="https://www.theguardian.com/law/2019/jan/27/half-of-magistrates-courts-in-england-and-wales-closed-since-tories-elected">Courts have been closed</a> and <a href="https://www.theguardian.com/law/2018/may/02/6500-jobs-to-be-lost-in-modernisation-of-uk-courts">frontline staff replaced</a> with online services. Yet, following <a href="https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo">a recent review of LASPO</a>, the government promised just £8m – mostly to promote IT – to fix the failings of the justice system. But vulnerable people need face-to-face advice, they need to be able to develop trusting relationships with the lawyers they go to for help, and feel they are being understood.</p>
<p>Seventy years since it was first established, urgent action is now needed to get legal aid back to the original principles of equity and equality. These ideals must be enshrined in policy and practice, not only for the benefit of this generation but for all of the future generations to come.</p>
<p>Eligibility criteria should be liberalised to avoid the current situation where <a href="https://www.lawsociety.org.uk/news/press-releases/struggling-families-disqualified-from-justice/">families living below the poverty line</a> might not qualify for legal assistance for issues such as fighting eviction. Legal aid fee rates should be increased to address <a href="https://www.theguardian.com/law/2018/apr/17/criminal-defence-solicitors-may-be-extinct-in-five-years-says-law-society">the crisis of recruitment and retention</a> that is facing this part of the legal profession too. While the scope of civil legal aid must cover more areas, reversing damaging cuts to areas such as family and immigration law. Legal help should be available earlier too, to stop problems escalating. In housing law, for example, legal aid is not available for disrepair issues until an issue has become serious enough to impact the health of the resident. </p>
<p>The Fabian Society <a href="https://fabians.org.uk/publication/the-right-to-justice/">has recommended</a> a new right to receive reasonable legal assistance without burdensome costs to tackle some of these problems. This would be accompanied by a set of guiding principles that would include promoting public legal education and ensuring that citizens can enforce the right. We also believe that <a href="https://www.gov.uk/government/organisations/legal-aid-agency">the Legal Aid Agency</a> – which manages the scheme as an executive agency of the Ministry of Justice – should be replaced by an independent body at arm’s length from government. Greater autonomy would mean it would be better placed to resist political pressures.</p>
<p>Legal aid is a public good and essential for a properly functioning democratic society. This anniversary should be an opportunity to not only celebrate a principle that has the potential to ensure equality before the law, but also cause us to take stock and get angry at how these rights have continued to be stripped away.</p><img src="https://counter.theconversation.com/content/120905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Seventy years after it was first launched, legal aid’s principles of equality are a shadow of what they once were.Daniel Newman, Senior Lecturer in Law, Cardiff UniversityFaith Gordon, Lecturer in Criminology, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1081132019-01-20T08:41:57Z2019-01-20T08:41:57ZForensic linguistics holds promise for South Africa’s legal system<figure><img src="https://images.theconversation.com/files/252985/original/file-20190109-32127-bwyprp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When people can testify in their own language, this increases their access to justice.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Most people are familiar with the tenets of forensic science: the pieces of evidence found at a crime scene that, thanks to technology, can be interpreted to provide solutions. But not many are aware that another discipline, forensic linguistics, can play a valuable role in interpreting evidence.</p>
<p>It’s a relatively young discipline. Swedish Linguistics professor Jan Svartvik recorded <a href="https://link.springer.com/article/10.1007/s11196-010-9142-4">its first mention</a> in 1968. At the time, he was linguistically analysing a set of legal statements – made by people who had been accused of crimes and given to the police. Svartvik’s analysis helped to secure several convictions. It also helped police understand how language holds clues about someone’s guilt, knowledge of an event, or innocence.</p>
<p>Since then, <a href="http://www.bloomsbury.com/us/forensic-linguistics-9780826461094/">forensic linguistics</a> has developed into an established research area in Europe, Australia and New Zealand. Forensic linguists <a href="https://link.springer.com/article/10.1007/s11196-010-9142-4">are called</a> as expert witnesses in court cases to provide linguistic analysis of legal documents. Among other skills, they are able to identify authors based on the language used in a document or statement and to provide legal interpretation or translation in a court room. </p>
<p>They also provide expert evidence on determining the parameters of language rights, for example whether an accused person has the right to be tried in a language they fully understand and what the implications of this are in attaining true justice (especially in multilingual societies).</p>
<p>Scholar Tim Grant <a href="http://www.aston.ac.uk/50/transforming-lives/tim-grant/">has suggested</a> that forensic linguistics is an attempt to improve the delivery of justice. It is this element that makes it a particularly relevant discipline for the South African context – both for linguists and legal practitioners.</p>
<p>South Africa’s legal system privileges only one of the country’s official languages, English. Interpreters are in short supply for the country’s African languages and are often under qualified. This means the vast majority of South Africans, whose home language is not English, do not get <a href="http://vital.seals.ac.za:8080/vital/access/manager/Repository/vital:27833">the level of justice</a> they deserve. </p>
<p>Forensic linguistics can improve this situation by helping to create informed language policies in the legal context, as well as how languages should be used in courts of law. And having properly trained experts who understand the intricacies of language and the law will go a long way to contributing to social justice in a multilingual society. </p>
<h2>In action</h2>
<p>Forensic linguistics is taught at a few universities in the southern African region. There are approximately 20 trained forensic linguists in South Africa. Rhodes University in South Africa offers it as an Honours course in African Language Studies. In October 2018 the university hosted <a href="https://www.ru.ac.za/latestnews/acaseforafricanlanguagesinthelegalsystem.html">a colloquium</a> that drew linguists and lawyers from around the country; this revealed a growing interest in the discipline and its implications for local courts. </p>
<p>As it stands, forensic linguistics in South Africa is essentially an interdisciplinary research area. It primarily addresses the use of language in the country’s legal system. This relates both to translation or interpretation, and to recognising the value that forensic linguists can add as expert witnesses.</p>
<p>English is the <a href="http://www.news24.com/SouthAfrica/News/english-will-be-only-language-of-record-in-courts-mogoeng-20170929">language of record</a> in South Africa’s courts. There are instances where, <a href="https://www.ru.ac.za/latestnews/forensiclinguisticsrhodesworkingtowardsaninclusivelegalsystem.html">for example</a>, a sworn statement is provided in an African language. </p>
<p>It’s then translated by a police officer into English, and that version is presented in court. But the English version may be very different to the original, since police officers aren’t trained translators. If a professional forensic linguist were employed in these instances, they would be able to pick up legal and linguistic inaccuracies. Alternatively, they could act as an interpreter or translator.</p>
<p>Forensic linguists can also serve as expert witnesses. With their training, they are able to testify about the language used in a particular case. </p>
<p>There have been a few recent South African examples of language playing a vital role in court. One was the case of anti apartheid activist <a href="http://www.ahmedtimol.co.za/">Ahmed Timol</a>, who died in 1971 while in police custody. The police always claimed he’d committed suicide, but in 2018 a former police officer was charged with murdering Timol. </p>
<p>During that trial, former cabinet minister and anti-apartheid activist Ronnie Kasrils testified that, while Timol’s alleged suicide note was written in Afrikaans, Timol did not speak Afrikaans. A forensic linguist would be able to prove or disprove this, using their expertise.</p>
<p>The growth of forensic linguistics would be good news for South Africa’s justice system. This would require a fresh curriculum, developed with legal and linguistic expertise, at the country’s universities. Rhodes University has started this journey; hopefully others will soon follow.</p>
<p><em>Zikho Dana, Sandisiwe Mafalala, Ntombizethu Nyakambi, and Tholly Thwala, who were all Honours students in Forensic Linguistics at Rhodes University, contributed to this article. Annelise de Vries, a doctoral student from the University of Johannesburg, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/108113/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Forensic linguistics can play a valuable role in interpreting evidence.Zakeera Docrat, Doctoral Student in African Languages (Law and Language/ Forensic Linguistics), Rhodes UniversityRussell H. Kaschula, Professor of African Language Studies, Rhodes UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/907022018-03-04T07:45:08Z2018-03-04T07:45:08ZWhy South Africa needs formal rules for class action lawsuits<figure><img src="https://images.theconversation.com/files/207545/original/file-20180222-152363-yx0xcn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>What do <a href="https://www.timeslive.co.za/news/south-africa/2018-01-12-ford-offers-kuga-owners-settlements-to-squash-class-action-suit/">Ford</a>, <a href="https://www.ft.com/content/16bf42ac-6baf-11e7-b9c7-15af748b60d0">AngloGold Ashanti, Gold Fields</a> and Tiger Brands have in common? They are just a few of the well-known companies in South Africa facing class actions: lawsuits filed on behalf of a group. </p>
<p>The international retail group <a href="https://www.fin24.com/Companies/Retail/sa-investors-want-to-join-dutch-class-action-against-steinhoff-report-20180112">Steinhoff</a> could soon join the list. South African shareholders and the Dutch Investors Association plan to launch a lawsuit against Steinhoff following allegations of accounting fraud.</p>
<p>Class actions against businesses like these can improve access to justice because they reduce the expense of litigation. It’s much more expensive for individuals to pursue a case on their own, so many claims are never judged and claimants don’t get justice. Class actions also deter antisocial behaviour by companies.</p>
<p>South Africa is seeing a growing body of class actions. The country’s constitution clearly provides for it and a practical way of going about it is starting to emerge. </p>
<p>A number of cases brought before the courts have started to build a <a href="https://www.werksmans.com/wp-content/uploads/2016/08/061416-Silicosis-Class-Action-Case.pdf">framework</a> to guide class actions.</p>
<p>But there is still a gap. There are still no laws passed by parliament or rules set by courts to regulate the procedure. My recent <a href="http://scholar.sun.ac.za/handle/10019.1/102706">doctoral study</a> aimed to develop a statutory structure that could help fill this gap.</p>
<h2>Examples from other countries</h2>
<p>South Africa may be able to learn from the examples of other jurisdictions, such as the <a href="https://www.google.co.za/search?ei=mU-WWtHUEIf9Up3DviA&q=he+US+United+states+class+action+procedure+law&oq=he+US+United+states+class+action+procedure+law&gs_l=psy-ab.3...25853.33397.0.33668.22.17.2.0.0.0.690.2827.2-2j1j2j2.7.0....0...1c.1.64.psy-ab..16.0.0....0.uT5nySptKPA">US</a> and <a href="https://uk.practicallaw.thomsonreuters.com/2-618-0466?transitionType=Default&contextData=(sc.Default)&firstPage=true">Ontario</a>, Canada, that have developed statutory frameworks to guide class actions.</p>
<p>Apart from being widely regarded as the leaders in the field of class action litigation, these countries share key commonalities with South Africa’s justice system. Their civil procedures are of English common law origin in terms of which the law is largely derived from judicial precedent, compared to civil law systems where codified statutes predominate. They also have an adversary system of litigation, which is characterised by party control and a passive and aloof judge. </p>
<p>One of the biggest challenges with these class action jurisdictions is that they are being increasingly invaded by frivolous claims and settlements driven by lawyers who see the class action spaces as a moneymaking machine. They overload the system with cases that serve their hunger for fees first – and the rights of the class action members become secondary.</p>
<p>The US and Canada have put in place measures to counter frivolous settlements. These include giving courts pre-screening powers and a discretion to pre-approve or reject settlements.</p>
<p>South Africa may need to go the settlement pre-screening route to avoid this problem. Deputy Judge President Phineas Mojapelo, in the recent silicosis litigation, <a href="https://www.groundup.org.za/article/understanding-silicosis-judgment/">hinted</a> at this when he said that settlements concluded after certification, in other words after the court approves the institution of a class action so that it can proceed to trial, should be subject to court approval. </p>
<p>It seems that South Africa will follow suit, notwithstanding the absence of legislation regulating the mechanism.</p>
<h2>Reasons for clarity</h2>
<p>One of the objectives of class actions is achieving judicial economy – in other words joining together a number of lawsuits that would otherwise have been brought separately. Judicial economy in this context also means that the class action would contribute to the efficient use of the courts’ resources and the consistency of judgments rendered by it.</p>
<p>In South Africa, it has been left to the courts to develop the procedural framework for class action . This makes for an ad hoc approach which is not ideal. A haphazard approach could lead to legal uncertainty or judicial inconsistency.</p>
<p>This is because a class action could be necessary to achieve one or all of three things: </p>
<ul>
<li><p>access to justice; </p></li>
<li><p>judicial economy; and </p></li>
<li><p>changes in behaviour. </p></li>
</ul>
<p>South African courts need to know which of these apply to each case. </p>
<p>But the primary consideration should be class members’ right to have <a href="https://probonomatters.co.za/2016/06/pro-bono-a-transformation-issue-for-south-africas-legal-fraternity/">access justice</a>. Where poor claimants are unable to litigate individually through joinder (a single trial where the right to relief of the persons joined depends upon the determination of substantially the same question of law or fact), a court should allow the matter to proceed as a class action. This ensures that the claimants’ financial and social circumstances don’t prevent them from getting justice. </p>
<p>The primary difficulties associated with joinder is that it is a cumbersome and costly process. And where individual claimants are poor, uneducated and lack access to resources, or where the class is large, joinder may in fact be inappropriate. A court ordering joinder in these circumstances could potentially undermine the rationale of providing access to justice. </p>
<p>It’s also important for courts to consider how they will manage a class action. This is because they are more complex than other kinds of litigation and require greater administration and management. If proceedings become unmanageable, the action may have to be stopped. So courts should consider whether claims are large enough to be pursued separately, and the importance of the common issues in relation to the claims as a whole. </p>
<p>In the final analysis, all these matters would be better handled by a statutory framework.</p>
<h2>A call to action</h2>
<p>Despite various problems, inconsistencies and contradictions around class actions, South Africa’s courts have done well to start developing a framework. They have given substance to what could have been an illusory mechanism for resolving disputes. </p>
<p>But the class action law is currently in a state of flux as it tries to shape and position itself within the country’s civil justice system. South Africa needs comprehensive legislation and court rules regulating class actions suits to better serve the principle of access to the justice system.</p><img src="https://counter.theconversation.com/content/90702/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theo Broodryk does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa is seeing a growing body of class action.Theo Broodryk, Senior Lecturer and Manager of the Law Clinic, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/853952017-10-23T02:25:50Z2017-10-23T02:25:50ZDon’t fear robo-justice. Algorithms could help more people access legal advice<figure><img src="https://images.theconversation.com/files/190746/original/file-20171018-32345-1tsa5e8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Should we be afraid of robo-justice?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/law-concept-enter-button-gavel-on-407397043">Maksim Kabakou/Shutterstock</a></span></figcaption></figure><p><em>You may have heard that algorithms will take over the world. But how are they operating right now? We take a look in our series on <a href="https://theconversation.com/au/topics/algorithms-at-work-44799">Algorithms at Work</a>.</em></p>
<hr>
<p>Algorithms have a role to play in supporting but not replacing the role of lawyers.</p>
<p>Around 15 years ago, my team and I created an automated tool that helped determine eligibility for legal aid. Known as <a href="https://pdfs.semanticscholar.org/fc3f/e1bd316cdf84f43a04e08bfb4d14635c3682.pdf">GetAid</a>, we built it for Victoria Legal Aid (VLA), which helps people with legal problems to find representation. At that time, the task of determining who could access its services <a href="https://pdfs.semanticscholar.org/fc3f/e1bd316cdf84f43a04e08bfb4d14635c3682.pdf">chewed up</a> a significant amount of VLA’s operating budget. </p>
<p>After passing a financial test, applicants also needed to pass a merit test: would their case have a reasonable chance of being accepted by a court? GetAid provided advice about both stages using decision trees and machine learning.</p>
<p>It never came online for applicants. But all these years later, the idea of using tools such as GetAid in the legal system is being taken seriously. Humans now feel far more comfortable using software to assist with, and even make, decisions. There are two major reasons for this change:</p>
<ul>
<li>Efficiency: the legal community has moved away from charging clients <a href="https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/522591.pdf">in six-minute blocks</a> and instead has become concerned with providing economical advice.</li>
<li>Acceptance of the internet: legal professionals finally acknowledge that the internet can be a safe way of conducting transactions and can be used to provide important advice and to collect data.</li>
</ul>
<p>This is a good development. Intelligent decision support systems can help streamline the legal system and provide useful advice to those who cannot afford professional assistance.</p>
<h2>Intelligent legal decision support systems</h2>
<p>While robots are unlikely to replace judges, automated tools are being developed to support legal decision making. In fact, they could help support access to justice in areas such as divorce, owners corporation disputes and small value contracts.</p>
<p>In cases where litigants cannot afford the assistance of lawyers or choose to appear in court unrepresented, systems have been developed that can advise about the potential outcome of their dispute. This helps them have reasonable expectations and make acceptable arguments.</p>
<p>Our <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/lawprisk3&div=19&id=&page=">Split-Up software</a>, for example, helps users understand how Australian Family Court judges distribute marital property after a divorce. </p>
<p>The innovative part of the process is not the computer algorithm, but dividing the process into 94 arguments, including issues such as the contributions of the wife relative to the husband; the future needs of the wife relative to the husband; and the marriage’s level of wealth.</p>
<p>Using a form of statistical machine learning known as a neural network, it examines the strength of the weighting factors – contributions, needs and level of wealth – to determine an answer about the possible percentage split.</p>
<p>Other platforms follow a similar model. Developed by the Dutch Legal Aid Board, <a href="http://www.hiil.org/project/rechtwijzer-divorce-separation-netherlands">the Rechtwijzer dispute resolution platform</a> allows people who are separating to answer questions that ultimately guide them to information relevant to their family situation. </p>
<p>Another major use of intelligent online dispute resolution is the <a href="https://civilresolutionbc.ca/">British Columbia Civil Resolution System</a>. It helps people affordably resolve small claims disputes of C$5,000 and under, as well as strata property conflicts.</p>
<p>Its <a href="http://mjdr-rrdm.ca/law/wp-content/uploads/2017/01/Salter-and-Thompson-January-20.pdf">initiators say</a> that one of the common misconceptions about the system is that it offers a form of “robojustice” – a future where “disputes are decided by algorithm”. </p>
<p>Instead, they argue the Civil Resolution Tribunal is human-driven:</p>
<blockquote>
<p>From the experts who share their knowledge through the Solution Explorer, to the dispute resolution professionals serving as facilitators and adjudicators, the CRT rests on human knowledge, skills and judgement.</p>
</blockquote>
<h2>Concerns about the use of robo-justice</h2>
<p>Twenty years after we first began constructing intelligent legal decision support systems, the underlying algorithms are not much smarter, but developments in computer hardware mean machines can now search larger databases far quicker.</p>
<p>Critics are concerned that the use of machine learning in the legal system will worsen biases against minorities, or deepen the divide between those who can afford quality legal assistance and those who cannot.</p>
<p>There is no doubt that algorithms will continue to perform <a href="https://www.propublica.org/article/bias-in-criminal-risk-scores-is-mathematically-inevitable-researchers-say">existing biases against vulnerable groups</a>, but this is because the algorithms are largely copying and amplifying the decision-making trends embedded in the legal system.</p>
<p>In reality, there is already a class divide in legal access – those who can afford high quality legal professionals will always have an advantage. The development of intelligent support systems can partially redress this power imbalance by providing users with important legal advice that was previously unavailable to them.</p>
<p>There will always be a need for judges with advanced legal expertise to deal with situations that fall outside the norm. Artificial intelligence relies upon learning from prior experience and outcomes, and should not be used to make decisions about the facts of a case. </p>
<p>Ultimately, to pursue “real justice”, we need to change the law. In the meantime, robots can help with the smaller stuff.</p><img src="https://counter.theconversation.com/content/85395/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Zeleznikow has received research funding from the Australian Research Council, Relationships Australia Queensland, Relationships Australia Victoria, Victoria Legal Aid, Software Engineering Australia, Phillips and Wilkins, Allan Moore and Company, Victorian Institute of Sport and Tennis Australia. His partner works for Relationships Australia Victoria.</span></em></p>Automated tools could help encourage access to justice in areas such as divorce, owners corporation disputes and small value contracts.John Zeleznikow, Professor of Information Systems; Research Associate, Institute of Sport, Exercise and Active Living, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/740362017-03-29T19:20:43Z2017-03-29T19:20:43ZVictoria leads the way on family violence, but Canberra needs to lift its game<figure><img src="https://images.theconversation.com/files/162574/original/image-20170327-18970-1jjsulv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The royal commission made 227 recommendations to transform Victoria’s family violence system.</span> <span class="attribution"><span class="source">AAP/David Crosling</span></span></figcaption></figure><p>Today marks one year since Victoria’s <a href="http://www.rcfv.com.au/">Royal Commission into Family Violence</a> released its seven-volume <a href="http://www.rcfv.com.au/Report-Recommendations">report and recommendations</a>. These set out a blueprint to transform responses to, and prevention of, family violence.</p>
<p>A year on, Victoria continues to lead the nation in these areas. It is also arguably emerging as a world leader.</p>
<h2>Successes so far</h2>
<p>The commission made 227 recommendations to transform Victoria’s family violence system. These were based on evidence gathered from 1,000 written submissions, 44 group sessions and 25 days of public hearings with 220 witnesses.</p>
<p>On the same day as the commission released its report, Victorian Premier Daniel Andrews committed his government to implementing all of the recommendations. </p>
<p>In April 2016 the government committed A$572 million over the next two years tied specifically to ensuring the completion of 65 recommendations. To date, according to the government’s <a href="http://www.vic.gov.au/familyviolence.html">own tracker</a>, ten recommendations have been completed, 212 are in progress and five have not yet been started.</p>
<p>Several of those completed relate to setting up a “<a href="http://www.vic.gov.au/familyviolence/recommendations.html#filters%5BStatus%5D=%7C3%7C">sustainable and certain</a>” governance structure to guide the reform process. This included establishing a family violence unit within the Department of Premier and Cabinet, a statewide family violence advisory committee, and convening an expert committee on perpetrator interventions.</p>
<p>This governance structure is unique to Victoria. It highlights the government’s ongoing commitment to consultation and stakeholder engagement in delivering on the commission’s work.</p>
<p>Recommendations yet to be started include for the Melbourne Children’s Court to establish family violence applicant and respondent worker positions, and to ensure police referral forms capture disability data.</p>
<p>Among the list of reforms under way but yet to be completed is the complex task of designing, developing and implementing what the commission referred to as “support and safety hubs”. </p>
<p>In recognition of the value of multi-agency responses to family violence, the commission’s idea of statewide hubs seeks to ensure those experiencing – and potentially perpetrating – family violence have access to an integrated range of services in one place. The government’s ten-year plan begins to detail the initial thinking that will inform this reform’s delivery.</p>
<p>Once implemented, the hubs – an Australian first – will provide valuable lessons for other states and territories seeking to introduce integrated responses to family violence.</p>
<h2>Ongoing challenges</h2>
<p>The Victorian government should be commended for its commitment to delivering the royal commission’s recommendations. But challenges remain.</p>
<p>In particular, the hardline response to recent concerns relating to homeless people in the Melbourne CBD fails to recognise the long-established link between family violence victimisation and homelessness. Between 2013 and 2014, family violence was <a href="https://www.justiceconnect.org.au/our-programs/homeless-law/law-and-policy-reform/preventing-evictions-and-sustaining-tenancies/home-safe-submission-royal-commission-family-violence">cited as the main reason</a> people sought help from specialist homelessness services in Victoria.</p>
<p>As the commission documents, people experiencing family violence are at increased risk of homelessness <a href="http://artsonline.monash.edu.au/gender-and-family-violence/files/2016/04/MonashFV-Family-Violence-and-Homelessness.pdf">due to several factors</a>. These include the absence of a safe home environment, the shortage of affordable housing options, and the saturated private rental market.</p>
<p>While Andrews has said Victorian women will not be forced to <a href="http://www.abc.net.au/news/2016-11-24/victorian-government-release-10-year-family-violence-plan/8051712">choose between safety and the streets</a>, the Melbourne City Council vote to ban camping in the city will undoubtedly exacerbate difficulties for women experiencing homelessness due to family violence. It also contributes to a public response to homelessness that is devoid of understanding and compassion.</p>
<p>An integrated response to family violence must not ignore the link between these two issues. Improving Victoria’s family violence system requires better responses to homelessness above and beyond the reforms required as part of the commission’s agenda.</p>
<h2>The federal barrier</h2>
<p>Federally, the barriers to reform, and the lack of a national commitment to funding related Commonwealth services, continue to pose significant challenges.</p>
<p>More than 20 of the royal commission’s recommendations rely on either Commonwealth co-operation or federal law reform. These include broadening the definition of family violence in the <a href="http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/">Migration Regulations</a> and pursuing amendments to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/">Family Law Act</a>.</p>
<p>The federal government’s move away from delivering on the recommendation to expand resourcing for legal services in family violence matters is particularly concerning. </p>
<p>In April 2016, the Victorian government <a href="http://www.vic.gov.au/familyviolence/recommendations/recommendation-details.html?recommendation_id=188">committed interim funding of $4.6 million</a> to support legal assistance services. But the federal government has continued to forecast <a href="https://theconversation.com/factcheck-qanda-what-are-the-facts-on-funding-for-domestic-violence-legal-services-in-australia-69214">significant cuts to the legal services</a> relied upon by women and children experiencing and escaping family violence. </p>
<p>The recently announced federal parliamentary inquiry <a href="http://www.aph.gov.au/fvlawreform">into family law</a> is an important acknowledgement of the need to tackle this area. But reform will have to be supported by resources, too.</p>
<p>Without immediate and sustained action federally, much of the work done to improve legal responses to family violence in Victoria will fail to secure better outcomes for women and children. They will be unable to access justice, fail to secure legal representation, and forced to navigate a significantly under-resourced and over-burdened family law system.</p>
<h2>Being bold for change</h2>
<p>International Women’s Day this year <a href="https://www.internationalwomensday.com/Theme">urged us</a> to be “bold for change”. </p>
<p>The royal commission, and its recommendations, set out a bold vision for change. The challenge one year on is to ensure its bold vision is matched by bold action. </p>
<p>There are signs of bold action on family violence. But the momentum must be maintained in Victoria – and the federal government needs to get on board.</p>
<hr>
<p><em>The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.</em></p><img src="https://counter.theconversation.com/content/74036/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Fitz-Gibbon is a Senior Lecturer in Criminology at Monash University and a Honorary Research Fellow in the School of Law and Social Justice at University of Liverpool. She is a member of the Monash Gender and Family Violence Research Focus Program (<a href="http://artsonline.monash.edu.au/gender-and-family-violence/">http://artsonline.monash.edu.au/gender-and-family-violence/</a>). Kate receives funding for family violence related research from the Australian Research Council, ANROWS, and Victorian Department of Health and Human Services.</span></em></p><p class="fine-print"><em><span>JaneMaree Maher is Professor in the Centre for Women's Studies & Gender Research, Sociology, Monash University. She is a member of the Monash Gender and Family Violence Research Focus Program (<a href="http://artsonline.monash.edu.au/gender-and-family-violence/">http://artsonline.monash.edu.au/gender-and-family-violence/</a>). She receives funding for family violence related research from the Australian Research Council, ANROWS, and Victorian Department of Health and Human Services.</span></em></p><p class="fine-print"><em><span>Jude McCulloch is Professor of Criminology, Monash University. She is a member of the Monash Gender and Family Violence Research Focus Program (<a href="http://artsonline.monash.edu.au/gender-and-family-violence/">http://artsonline.monash.edu.au/gender-and-family-violence/</a>). She receives funding for family violence related research from the Australian Research Council, ANROWS, and the Victorian Department of Health and Human Services.Jude McCulloch is a member of the Minister for the Prevention of Family Violence Taskforce on preventing Family Violence. </span></em></p><p class="fine-print"><em><span>Sandra Walklate is Eleanor Rathbone Chair of Sociology at the University of Liverpool conjoint Professor of Criminlogy, Monash University where she is a member of Gender and Family Violence Focus Research Program.</span></em></p>A year since its royal commission reported, Victoria continues to lead the nation in how to respond to, and prevent, family violence.Kate Fitz-Gibbon, Senior Lecturer in Criminology, Monash UniversityJaneMaree Maher, Professor, Centre for Women's Studies & Gender Research, Sociology, Monash UniversityJude McCulloch, Professor of Criminology, Monash UniversitySandra Walklate, Eleanor Rathbone Chair of Sociology, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/725022017-02-15T02:15:21Z2017-02-15T02:15:21ZRegulations needed for litigation funders who can’t pay out when cases fail<figure><img src="https://images.theconversation.com/files/156699/original/image-20170214-25977-1ypmm83.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The lead claimant in an equine influenza class action managed to avoid incurring a substantial costs order being made against them.</span> <span class="attribution"><span class="source">AAP/Sergio Dioniso</span></span></figcaption></figure><p>Access to funding for litigation has become a critical component of class action cases in Australia. This is because it provides the necessary financing for this form of expensive and complex litigation.</p>
<p>Yet its unregulated nature may expose consumers to the risk of the funder becoming insolvent or simply failing to pay legal fees – or, if a class action is lost, the defendant’s costs.</p>
<p>To create regulations that cover this, the courts and regulators need to pay attention to unsuccessful class actions, where the funder is required to honour obligations to claimants to pay legal fees and the defendant’s costs. </p>
<p>But, currently, the only guidance, such as the Federal Court’s recent judgments and the Victorian attorney-general’s <a href="http://www.lawreform.vic.gov.au/projects/litigation-funding/litigation-funding-terms-reference">referral of the issue</a> to the Victorian Law Reform Commission, focuses on a successful class action where the funder is actually receiving its fee. </p>
<p>Two important regulatory pillars – licensing and capital adequacy – are missing. This is despite the Productivity Commission <a href="http://www.pc.gov.au/inquiries/completed/access-justice/report">recommending in 2014</a> that both be introduced.</p>
<p>The lack of a licensing regime means anyone or any entity can fund litigation in Australia – except for lawyers, as contingency fees are illegal. Also, without capital adequacy requirements, there is no protection for claimants (or defendants) to ensure the funder has sufficient resources to be able to pay legal fees and meet any adverse costs order. </p>
<p>This creates the potential for inadequately resourced funders to litigate for profit but avoid the costs if unsuccessful. Currently, funders can protect themselves by being based offshore and/or by using subsidiaries with limited financial resources to undertake funding obligations.</p>
<p>There is only partial protection against a funder with inadequate capital at the moment. This involves a court order for “security for costs”. This requires the funder to take steps to make funds or assets available at the beginning of litigation to pay the defendant’s costs in the event the litigation fails.</p>
<p>However, it is common practice that the amount of security a court requires to be posted is substantially lower than the costs the defendant actually incurs. So, the claimant bringing the case may be still liable for those costs.</p>
<h2>How does litigation funding work?</h2>
<p>In a typical litigation funding arrangement, the funder will enter into an agreement with one or more potential claimants. The funder agrees to pay the litigation costs – such as lawyers’ fees and expert witness fees – and promises the claimant will pay the defendant’s costs if the claim fails.</p>
<p>Litigation funding removes all of the costs exposure a claimant may have. In return, if the claim is successful, the funder will receive a fee. This is typically a specified percentage of any funds recovered by the claimants either by way of settlement or judgment. The funder will also be reimbursed the litigation costs.</p>
<p>The Federal Court has taken significant steps to reassert that court access is primarily for the people who have been harmed. It says it has the power to supervise litigation funding charges in class actions.</p>
<p>In the recent shareholder class actions against insurance giant <a href="http://www.austlii.edu.au/au/cases/cth/FCAFC/2016/148.html">QBE</a> and <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2016/1433.html">Newcrest Mining</a>, the court recognised that the funder’s fee is usually the largest single deduction from what the claimants manage to recover in funded class actions. </p>
<p>Many claimants are at a disadvantage in negotiating litigation funding agreements because they have small claims and need the funding more than the funder needs them to be part of the class action.</p>
<p>The Federal Court aims to prevent excessive or disproportionate charges to claimants. This means funders are subject to the same scrutiny that already exists for lawyers and their fees. </p>
<p>The court’s supervision of funding charges will mean funders will need to justify the fees charged. Therefore, a fee must reflect the real risks the funder assumes in facilitating access for the claimants to justice and the recoveries achieved.</p>
<h2>Examples of near-disasters</h2>
<p>The failure to regulate litigation funders is becoming more problematic. This is because more funders, particularly from overseas, are entering the market. There have been class action failures, which may become more common as more funders start to chase profits in Australia.</p>
<p>Class actions over <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2016/28.html">bank fees</a> and <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2016/1119.html">equine influenza</a> are two recent examples of litigation that failed.</p>
<p>The bank fees class action was a highly publicised attempt to seek repayment of overdraft and other bank fees to customers. This failed when the fees were found not to be illegal. </p>
<p>The case involved a number of hearings and multiple appeals, which led to a large liability for costs. Fortunately for the claimants (and the defendants), an Australian-listed corporation with a healthy balance sheet funded the class action. </p>
<p>The equine influenza class action dealt with claims against the federal government for failing to prevent the virus escaping from a quarantine station, which led to the infection of thousands of horses. </p>
<p>Partway through the class action, the overseas funder became bankrupt amid allegations its parent company was engaged in fraudulent activities. The class action settled for no compensation; each side bore its own costs. Justice Foster observed the settlement meant the lead claimant avoided:</p>
<blockquote>
<p>… a very substantial adverse costs order being made against them.</p>
</blockquote>
<p>Lawyers acting for the plaintiff reportedly had A$11 million in unpaid fees. The litigation funder would have been liable to protect the claimants from adverse costs orders and pay the legal fees had it not collapsed. The settlement’s terms averted a near-disaster for the lead claimant. </p>
<p>Oversight of litigation funders in victorious class actions has begun. But more action is required to regulate losing litigation funders to protect claimants and defendants.</p><img src="https://counter.theconversation.com/content/72502/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Legg is affiliated with the Law Council of Australia's Class Actions Committee, Jones Day and the Australian Pro Bono Centre. He is the director of the IMF Bentham funded Class Actions Research Initiative at UNSW Law. </span></em></p>The failure to regulate litigation funders is becoming more problematic. This is because more funders, particularly from overseas, are entering the Australian market.Michael Legg, Associate Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/660922016-09-28T10:39:15Z2016-09-28T10:39:15ZImmigrants told to leave UK face huge hike in fees to appeal decisions<figure><img src="https://images.theconversation.com/files/139554/original/image-20160928-572-3ymhhd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protest outside the Yarl's Wood immigration removal centre. </span> <span class="attribution"><span class="source">Knox O (Wasi Daniju)/flickr.com</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>Immigrants appealing through the courts for a right to remain in the UK will soon face a huge increase in procedural costs after the government <a href="https://www.gov.uk/government/consultations/proposals-to-amend-immigration-and-asylum-chamber-fees">announced</a> fee hikes of over 500% for some types of appeal through the immigration and asylum tribunals. </p>
<p>There are two stages of appeal against immigration decisions by the Home Office, such as refusal to grant or extend leave as a student, worker, family member or for refugee family reunion, refusal of asylum, or a decision to deport someone. The first way to appeal is to the <a href="https://www.gov.uk/courts-tribunals/first-tier-tribunal-immigration-and-asylum">First-tier Tribunal</a>. After a decision by a judge in this tribunal, either the appellant or the Home Office can apply for permission to appeal against the decision at the second level – the <a href="https://www.gov.uk/courts-tribunals/upper-tribunal-immigration-and-asylum-chamber">Upper Tribunal</a>, but only on the basis that the First-tier judge made an error of law in the judgement.</p>
<p><a href="http://www.legislation.gov.uk/uksi/2016/928/pdfs/uksi_20160928_en.pdf">From October 10</a>, the fee for an oral hearing in the First-tier Tribunal will rise from £140 to £800 per person. At an as-yet unspecified date there will also be a brand new fee of £455, just for applying for permission to appeal to the Upper Tribunal if the first judge dismisses the appeal. There will then be another new fee of £510 to have that appeal heard if permission is granted. </p>
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<p>The tribunals have the power to order repayment of the fee if the appeal succeeds, but appeals can drag on for two years or more. This will now leave even a successful appellant significantly out of pocket for a long time – up to £2,115 to reach an Upper Tribunal hearing. Double that for a couple appealing together. Treble it if they have a child. The government believes the new fees will generate £34m in income per year – but this of course depends on how many people are put off appealing by the fees. </p>
<h2>Reducing access to justice</h2>
<p>This potentially denies access to justice to large numbers of people who have been told they need to leave the UK, the vast majority without having committed any offence. There have always been some exemptions from these fees which will continue – for example for people receiving legal aid, those appealing against asylum decisions or revocation of citizenship, and children in the care of a local authority. Those with a <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/420914/Fee_Waiver_Policy_-_April_2015.pdf">Home Office fee waiver</a>, which may be given to people who are destitute, are also exempted. </p>
<p>But in my recent <a href="https://www.brighton.ac.uk/crome/research-projects/minas-unaccompanied-minors-rights.aspx">research</a> I found that young people who sought asylum as children and have reached the age of 18 often face particular problems. If there is no longer a good asylum claim because they are adults or because the conditions in their <a href="https://theconversation.com/explainer-how-does-the-uk-decide-who-gets-asylum-52924">home country have changed</a>, but they have built a life for themselves in the UK, they cannot get legal aid to apply to stay on that basis. They are no longer in local authority care so do not qualify for a fee exemption on that basis. With the new fees, not only will they have to do without a legal representative, they may be unable to appeal because of the prohibitive cost.</p>
<p>The new fees might be less important if the Home Office made well-reasoned decisions in the first place. But in the quarter between April and June 2016, statistics from the <a href="https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2016">tribunals</a> show 42% of appeals to the First-tier succeeded, as did 32% of those to the Upper Tribunal. Yet, only 22% of unrepresented appellants win at the first stage, suggesting that at least some of those who lost appeals might have won with the help of a legal adviser. The poor quality of decision-making is perhaps not surprising, given that some of it has been delegated to <a href="https://www.theguardian.com/uk-news/2016/feb/27/gap-year-students-deciding-asylum-claims">gap-year students with five weeks’ training</a>. </p>
<h2>Rising costs all round</h2>
<p>The government <a href="https://www.gov.uk/government/consultations/proposals-to-amend-immigration-and-asylum-chamber-fees">consulted</a> on the fee rises. Out of 147 responses, 142 opposed the increase. The five who agreed with the changes said the new fees would discourage “unmeritorious appeals”. But I’d argue that they are at least as likely to discourage meritorious appeals, especially those by families who have to pay a fee for several family members. </p>
<p>Most courts and tribunals charge a fee, but <a href="https://www.freemovement.org.uk/government-confirms-fees-immigration-tribunal-hearings-will-skyrocket/">lawyers believe</a> this is the only area of justice in which users are expected to pay the full cost of the tribunal proceedings. There doesn’t appear to have been any attempt to justify this apparently discriminatory approach in the <a href="https://www.gov.uk/government/consultations/proposals-to-amend-immigration-and-asylum-chamber-fees">impact assessment</a> for the new fees. </p>
<p>This comes on top of several years of large rises in Home Office fees for applying for permission to enter and remain in the UK. In October 2010, the <a href="https://www.jcwi.org.uk/sites/default/files/2010/01/general-stakeholder-letter-21.pdf">government decided</a> that some application fees should far exceed the actual cost of processing the application, in order to pay for other parts of the system such as asylum and, in fact, the appeals system. The fee for a citizenship application was set at 437% of the actual cost of processing it. The fairness of such a system is highly questionable.</p>
<p>Add to all this the fact that rights to appeal decisions have been <a href="https://www.freemovement.org.uk/rights-and-grounds-of-appeal-commencement-and-transition/">limited by the Immigration Act 2014</a>, so that many can only be exercised from outside the UK. That increased £800 fee is for an appeal hearing which the actual appellant may not even be able to attend – only the witnesses and a lawyer, <a href="https://theconversation.com/what-are-mckenzie-friends-and-why-are-they-appearing-in-more-courtrooms-65756">if they can afford one</a>. </p>
<p>The appeal tribunal considers whether the Home Office has made an incorrect legal decision. It can only order enforcement of rights and entitlements given by the law and immigration rules. Whatever you think about migration as an issue, people are entitled to fairness in the administration of the laws and rules that parliament creates, and access to the courts where fairness has broken down. The idea that some people should pay disproportionately for that access, in effect because they are migrants, suggests the UK is creating a chauvinistic kind of justice.</p><img src="https://counter.theconversation.com/content/66092/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo Wilding is a barrister at Garden Court Chambers, specialising in asylum and immigration law and an associate member of MigrationWork CIC.</span></em></p>Access to immigration and asylum tribunals is about to get a lot more costly.Jo Wilding, PhD candidate, University of BrightonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/657562016-09-23T12:44:39Z2016-09-23T12:44:39ZWhat are McKenzie friends and why are they appearing in more courtrooms?<figure><img src="https://images.theconversation.com/files/138968/original/image-20160923-29916-13g3pw5.jpg?ixlib=rb-1.1.0&rect=0%2C299%2C1000%2C669&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Going to court? Who's your true friend?</span> <span class="attribution"><span class="source">Paul Matthew Photography / Shutterstock.com </span></span></figcaption></figure><p>It used to be that if you needed a lawyer but didn’t have the money to hire one, you could usually get support through legal aid. But since big cuts to the civil <a href="http://www.bbc.co.uk/news/uk-politics-22936684">legal aid budget in April 2013</a>, the number of people accessing free legal services <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/533178/legal-aid-statistics-england-and-wales-bulletin-jan-to-mar_16.pdf">has fallen dramatically</a> as cases such as divorce, child contact and welfare benefits no longer qualify for legal aid.</p>
<p>Although it’s not clear how many people are now representing themselves in court as a result, <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/lapso-report/">a report by a group of MPs</a> indicated that the numbers are significant and rising. Being a litigant in person can be a daunting process with a lot riding on the outcome. </p>
<p>Into the breach have stepped so-called McKenzie friends. These are people who are not qualified lawyers but are allowed to represent a party to civil proceedings if they have been given permission by the judge to do so. The term McKenzie dates back to a divorce case in 1970 in which the husband, Levine McKenzie, used the support of an Australian barrister who was not registered in the UK. While McKenzie friends are therefore not new to English courts, there is <a href="http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf">evidence</a> of an increase in their use following the cuts to legal aid. </p>
<p>Today, there are two main types of McKenzie friends: those that are free and those that charge fees. Free McKenzie friends include a number of university law schools and charities who provide assistance to litigants in person. </p>
<p>Fee-paying McKenzie friends are more controversial. They are not regulated and not required to have professional indemnity insurance, which means that clients cannot be sure they will be compensated if bad advice loses their case. Free McKenzie friends are not formally regulated either, but they typically do not offer legal advice, confining themselves to assisting clients with tasks such as note-taking, putting documents into chronological order or providing emotional support. Usually they are also insured. </p>
<p>By contrast, fee-paying McKenzie friends will often engage in advocacy on behalf of clients as well as offer detailed legal advice. Sometimes their fees can be high with <a href="http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/april/mckenzie-friends-bar-chairman-says-consumer-protection-has-to-be-paramount/">reports</a> of some charging £100 per hour for their services. This does not offer any saving as it would be possible to employ a junior qualified lawyer for a similar amount. </p>
<h2>Bad behaviour</h2>
<p>There have also been concerns expressed over the behaviour of some McKenzie friends. In mid-September, one was accused (by the opposite party) of hijacking the case to pursue his own agenda while acting on behalf of a boatowner. While the judge ultimately <a href="http://www.lawgazette.co.uk/law/relentless-and-obstinate-mckenzie-friend-allowed-to-be-advocate/5057687.fullarticle">allowed him to act</a> on behalf of the claimant, the complaint reflects one of the fears relating to McKenzie friends: that they will be used by pressure groups to advance their own agendas.</p>
<p>This follows other cases where distinctly undignified courtroom behaviour has taken place. For example, in 2015 a McKenzie friend who had served prison sentences for dishonesty and public order offences <a href="http://www.lawgazette.co.uk/news/ex-bouncer-mckenzie-friend-banned-after-calling-lawyer-a-lying-slag/5049010.fullarticle">was banned</a> from representing anyone for life after insulting an opponent and for other bad behaviour. </p>
<p>In response to incidents like this the judiciary have <a href="http://www.lawgazette.co.uk/practice/judiciary-proposes-ban-on-fee-charging-mckenzie-friends/5053851.fullarticle">consulted</a> on a ban on fee-paying McKenzie friends. The Law Society and the Bar Council have supported the idea. Yet some regulators, such as the Legal Services Board and the Solicitors Regulation Authority, are <a href="http://www.lawgazette.co.uk/law/no-case-for-ban-on-paid-mckenzie-friends-regulators/5055493.fullarticle">opposed</a>, saying there is not enough evidence for a ban.</p>
<p>Not all fee-paying McKenzie friends engage in such egregious behaviour. Some have had experience in related disciplines like social work, and provide useful complementary perspectives to courts. Others are paralegals who are not legal professionals but have legal qualifications. There are <a href="http://www.lawgazette.co.uk/practice/solicitors-becoming-mckenzie-friends-to-avoid-regulatory-costs-cma-told/5054974.fullarticle">also reports</a> of solicitors becoming fee-paying McKenzie friends in order to avoid regulatory costs, enabling them to provide assistance at a more affordable cost to clients. There are also attempts at voluntary self regulation. For example, the <a href="http://www.mckenziefriends.directory/">Society for Professional McKenzie Friends</a> requires its members to carry professional indemnity insurance.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Keep it simple.</span>
<span class="attribution"><span class="source">Evlakhov Valeriy/ www.shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Making justice more accessible</h2>
<p>When even middle-income people <a href="http://asauk.org.uk/wp-content/uploads/2013/09/Dramatic-drop-in-civil-legal-aid-eligibility.pdf">are struggling</a> to afford legal services it is clear that there is a huge issue about access to justice. Changes in business and regulatory practice – such as solicitors charging fixed fees, charging for specific tasks instead of conducting the entire case a practice known as “unbundling” and use of online courts and telephone hearings – may alleviate the problem caused by regulatory burdens which make legal services expensive. But, professional indemnity insurance, which solicitors are required to have, is a gold-plated service which comes at a price: it offers effective consumer protection but increases the cost of services. </p>
<p>The term McKenzie friend is not informative to consumers. It is also confusing as it suggests they are part of the court system, which they are not. A “court assistant” might be a more informative title, though it would mean they are part of the court system. This would give greater clarity to their role, but if they were part of the system they would need to adhere to a disciplinary code that would need to specify the tasks they could undertake – and would require insurance. To some extent, formalising them like this would mean a trade-off between enhanced consumer protection and affordability.</p><img src="https://counter.theconversation.com/content/65756/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Owen is a member of the Law Society's Wales and Access to Justice Committees. However, all views expressed are personal opinions.</span></em></p>Legal aid cuts have made people going to court turn for help elsewhere.Richard Owen, Director Essex Law Clinic, School of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/499442015-11-04T00:19:11Z2015-11-04T00:19:11ZMerging federal courts’ administration won’t improve services for those who need it<figure><img src="https://images.theconversation.com/files/100254/original/image-20151030-20128-526p9e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family Court clients often have specific needs and vulnerabilities.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>The federal government <a href="http://www.australasianlawyer.com.au/news/budget-savings-trigger-federal-courts-merger-207337.aspx">looks set</a> to merge the administration of three of Australia’s federal courts — the Federal Court, the Family Court and the Federal Circuit Court – with the aim of saving A$6 million over four years.</p>
<p>While the government <a href="https://www.ag.gov.au/Publications/Budgets/Budget2015-16/Documents/Portfolio-budget-statements/19-2015-16-PBS-Federal-Court.pdf">has said</a> that the proposed model will “preserve the courts’ functional and judicial independence”, what has been foreshadowed appears to be less a collaborative model and more one in which the Federal Court will simply assume administrative responsibility for the other two courts.</p>
<p>The rationale for that approach is unclear. It could have significant implications for the way in which resources are allocated to meet the needs of Australia’s family courts and their clients.</p>
<h2>Feeling the pinch</h2>
<p>The Federal Circuit Court was designed to provide a faster, simpler and more accessible alternative to the Family Court and the Federal Court. In practice, family law matters make up most of its workload – <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part3">91% in 2014-15</a>.</p>
<p>But the Federal Circuit Court is under pressure. Its <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part3">annual report</a> reveals that the number of new family law filings in the court grew 3.5% for the year 2014-15 (to 86,380), while the number of cases concluded remained relatively static (81,744). </p>
<p>These figures tell only part of the story. As chief judge John Pascoe has <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part1">pointed out</a>, this workload is being dealt with by fewer judges. Of the four new judges recently <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FourthQuarter/29-October-2015-Appointments-to-the-Federal-Court-and-Federal-Circuit-Court.aspx">appointed</a> to the court, only one is a family law expert.</p>
<p>Waiting times for trials have grown and <a href="http://www.dailytelegraph.com.au/news/nsw/family-law-tsunami-swamps-western-sydney-court-with-600-per-cent-blowout-in-cases/story-fni0cx12-1227360823222?sv=c5d402a1ecd36c70f3790b2b6dbc686">recent reports</a> suggest that some judges may be carrying workloads of up to 700 cases. The court finalised <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part3">only 73%</a> of final order applications in 2014-15, well down on its target of 90%. </p>
<p>The Family Court deals with more complex family law matters and appeals in family matters from the Federal Circuit Court. In 2014-15, the number of notices of appeal <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/annual-reports/2014-15/2014-15-annual-report-part1">grew by 18%</a>. None of this is good news for families and litigants caught up in family law matters.</p>
<h2>What’s happened elsewhere?</h2>
<p>The US and Canada have centralised court administration support functions for their federal courts. However, unlike Australia, in those countries the high-volume family law jurisdiction, with its special needs, is a matter for state – or provincial – courts.</p>
<p>Two Australian states – South Australia and Victoria – have centralised court administration under what are essentially collaborative models. The head of each court has a seat at the table. Their establishment has been driven by the need to ensure judicial independence and provide greater autonomy and flexibility in allocating resources to meet administrative needs and functions.</p>
<p>However, the move to centralisation at federal level appears to be driven by the executive, rather than the courts, and motivated primarily by reducing costs.</p>
<h2>Why it matters</h2>
<p>Rationalising administration sounds innocuous in terms of payroll, communications and judge travel. But court administrative functions also impact directly on the service court users receive by way of support and information, efficiency of case processing, and ancillary services such as alternative dispute resolution, interpreting, family support, IT and court security.</p>
<p>Family court clients often have specific needs and vulnerabilities. And at a time when there is a national commitment to <a href="http://www.malcolmturnbull.com.au/media/release-womens-safety-package-to-stoptheviolence">addressing family violence</a>, a federal inquiry underway into <a href="https://www.childabuseroyalcommission.gov.au/">child abuse</a>, and increasing attention on issues of <a href="http://www.smh.com.au/federal-politics/political-news/mental-health-shakeup-imminent-health-minister-sussan-ley-says-20151004-gk0uuj.html">mental illness</a> and <a href="http://www.brisbanetimes.com.au/queensland/queensland-government-unveils-6-million-plan-to-tackle-ice-problem-20150920-gjqpht.html">drug addiction</a>, it is vital to ensure that Australia’s family courts are well-equipped to tackle the flow-on effects of these problems in family court cases.</p>
<p>Family Court Chief Justice Diana Bryant has <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/annual-reports/2014-15/2014-15-annual-report-part1">reported</a> an increasing number of cases involving mental illness and substance abuse, as well as the complexities of matters involving family violence or allegations of child abuse. </p>
<p>Those factors have obvious implications – not just for the workload of judges, but also for support staff dealing with those clients.</p>
<p>These courts have high levels of people who handle their own court cases because they can’t afford, or don’t want, to engage a lawyer. Skilled administrative staff play an important role in providing the additional information and support they need.</p>
<p>Problems associated with increased judicial workloads are also unlikely to be fixed by a focus on “back-end” operations. Their solution might require more resourcing, not less. These resources might be used to support a renewed focus on case management and workforce planning in the Federal Circuit Court, as well as judicial appointments.</p><img src="https://counter.theconversation.com/content/49944/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Wallace has received funding from the Australian Research Council, including a project in which the Family Court of Australia was one of several industry partners who contributed industry partner funding and support. </span></em></p>Merging the back-end operations of Australia’s federal courts could have significant implications for the way in which resources are allocated to meet the needs of family courts and their clients.Anne Wallace, Professor, School of Law & Justice, Edith Cowan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/394632015-03-31T03:30:47Z2015-03-31T03:30:47ZReversing legal aid cuts isn’t enough to ensure access to justice<figure><img src="https://images.theconversation.com/files/76509/original/image-20150331-1256-1f2ptxe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Differences in personal resources and capabilities mean that the most vulnerable Australians find the legal system inaccessible.</span> <span class="attribution"><span class="source">AAP/April Fonti</span></span></figcaption></figure><p>The Abbott government cleared another <a href="http://www.smh.com.au/federal-politics/political-news/another-barnacle-removed-abbott-governments-planned-cuts-to-legal-aid-services-now-reversed-20150326-1m88dx.html">“barnacle”</a> last week when it <a href="http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FirstQuarter/26-March-2015-Legal-aid-funding-assured-to-support-the-most-vulnerable-in-our-community.aspx">announced</a> that proposed cuts to legal assistance services would not be going ahead. The <a href="http://www.themonthly.com.au/the-monthly-today/russell-marks/2015/27/2015/1427419957/why-was-government-policy">inexplicable decision</a> to withdraw this funding jarred with the government’s new and growing <a href="http://www.pm.gov.au/media/2015-03-04/national-awareness-campaign-reduce-violence-against-women-and-children">commitment</a> to eradicating family violence. It is a sensible decision.</p>
<p>However, the demand for government-funded legal services is large and growing. Simply “not cutting” these services does the community a grave disservice. More must be done.</p>
<h2>Need for legal assistance</h2>
<p>In December 2014, the Productivity Commission’s access to justice inquiry released its <a href="http://www.pc.gov.au/inquiries/completed/access-justice/report">final report</a>. It found that:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>Differences in personal resources and capabilities mean that the most vulnerable Australians find the legal system inaccessible. There is a role for government in assisting these individuals to uphold their legal rights and resolve their civil (including family) law disputes.</p>
<p>Ensuring that laws are fair and processes are as simple as possible are key ways that governments can deliver justice, along with providing financial support for non-government agencies to provide <a href="http://theconversation.com/www.naclc.org.au/postcode_search.php">advice and assistance</a> to the many clients who have legal problems and can’t get help. </p>
<p>This should extend to promoting <a href="http://www.naclc.org.au/cle_database.php">community understanding of legal issues</a>, and <a href="http://pc.gov.au/__data/assets/pdf_file/0006/137877/subdr301-access-justice.pdf">actively engaging</a> with policymakers. But recent <a href="http://www.theguardian.com/commentisfree/2014/jun/27/last-chance-to-be-heard-for-law-services-fighting-to-protect-the-most-vulnerable?CMP=twt_gu">funding restrictions</a> reduce this important work.</p>
<h2>The cuts, the backflip, the impact</h2>
<p>Days before the 2013 election, the Coalition <a href="http://www.canberratimes.com.au/federal-politics/federal-election-2013/jail-risk-higher-for-indigenous-under-coalition-tenure-20130906-2tau9.html">announced</a> that it would cut A$43 million from Indigenous legal services across Australia. These cuts purportedly targeted law reform and advocacy activities and wouldn’t impact frontline services. However, these agencies spent about 1% of this funding on specialist policy and law reform roles.</p>
<p>In December 2013, the government <a href="http://www.theaustralian.com.au/national-affairs/indigenous/coalition-scales-back-cuts-to-legal-aid/story-fn9hm1pm-1226784449022">confirmed</a> that the cuts would amount to $42 million over four years, but would cover non-Indigenous services as well – stretching to legal aid and community legal centres. </p>
<p>Again, there was a pretence that these funding cuts would not impact frontline services. But in Queensland, for example, these cuts would actually affect:</p>
<ul>
<li><p>consumer law services in Cairns, helping people that have been the subject of predatory and unlawful business practices;</p></li>
<li><p>specialist legal services for tenants who are facing eviction across Queensland;</p></li>
<li><p>a specialist family law outreach service in Coomera;</p></li>
<li><p>help for the Inala community to access general legal help, from an organisation that recently had to relocate after its premises were condemned;</p></li>
<li><p>family law services on the Sunshine Coast and in Townsville, helping people when their relationships end;</p></li>
<li><p>state-wide advice and casework support for people who have disputes with Centrelink; and</p></li>
<li><p>duty lawyer and outreach services at the Southport Magistrates’ Court when it hears family violence applications.</p></li>
</ul>
<p>The government asserted that the cuts would not impact frontline services – and were only focused on law reform, which shouldn’t be funded when there is a budget “crisis”. But the pressure was being applied to frontline agencies, which were <a href="http://www.canberratimes.com.au/federal-politics/political-news/aboriginal-legal-services-call-on-federal-government-to-reverse-funding-cuts-20150325-1m7j9u.html">starting</a> to cut staff and services. </p>
<p>As these cuts were starting to bite, the Abbott government soon realised that its decision to cut funding conflicted with its commitment to services and strategies to stop family violence. It used this context when <a href="http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FirstQuarter/26-March-2015-Legal-aid-funding-assured-to-support-the-most-vulnerable-in-our-community.aspx">announcing</a> its backflip:</p>
<blockquote>
<p>For too many years, the issue of domestic violence remained behind closed doors – a stigmatised problem that victims were reluctant to speak about. Sadly, as a nation we were reluctant or afraid to speak about it.</p>
<p>With more victims speaking out about this scourge and seeking help to escape such violence, we are responding accordingly with appropriate resourcing. The government has listened and is acting in the interests of the most vulnerable in our community including Indigenous Australians.</p>
</blockquote>
<h2>More change (and money) is needed</h2>
<p>While reversing cuts is a necessary start, it is also vital that more funding be provided for legal assistance services. The <a href="http://www.pc.gov.au/">Productivity Commission</a> called for an <a href="http://www.theage.com.au/federal-politics/political-news/australian-legal-aid-services-need-200-million-more-a-year--productivity-commission-20141203-11zff7.html">additional A$200 million</a> for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped to deal with, legal disputes”. </p>
<p>In justifying its unusual call for this significant funding injection, the commission’s report found:</p>
<blockquote>
<p>… numerous studies show that efficient government-funded legal services generate net benefit to the community.</p>
</blockquote>
<p>As I have previously <a href="https://theconversation.com/extra-funding-for-legal-assistance-services-should-only-be-a-start-34843">written</a>, the commission made other sensible suggestions. These included:</p>
<ul>
<li><p><a href="http://affordingjustice.com.au/legal-task-help/">“unbundling”</a> legal services;</p></li>
<li><p>better co-ordinating pro bono services, recognising that these contribute less than 3% of legal assistance services required;</p></li>
<li><p>investigating the appropriateness and effectiveness of <a href="http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/default.aspx">family dispute resolution</a> schemes;</p></li>
<li><p>funding <a href="http://www.abc.net.au/radionational/programs/breakfast/boost-legal-aid-productivity-commission/5940102">strategic advocacy and law reform</a> activities that seek to identify and remedy systemic issues and so reduce demand for frontline services;</p></li>
<li><p>making eligibility principles for grants of legal aid consistent; and</p></li>
<li><p>improving the collection and communication of data and evaluation.</p></li>
</ul>
<p>The government is currently consulting stakeholders on reforming the legal assistance services industry. It has an entirely <a href="http://www.lawyersweekly.com.au/news/16273-timeline-for-legal-assistance-reforms-impossible">unrealistic target</a> of implementing these changes by July this year. These changes will require new agreements to be negotiated with all states and territories and more than 200 service providers in seven weeks after the budget.</p>
<p>Rather than rushing implementation, the government should partner with service providers and other stakeholders to develop changes that are evidence-based, transparent and effective, and commit to properly resourcing this important work.</p><img src="https://counter.theconversation.com/content/39463/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Farrell OAM is the director of the Queensland Association of Independent Legal Services, and chairperson of the Queensland Legal Assistance Forum.</span></em></p>The demand for government-funded legal services is large and growing. Simply “not cutting” these services does the community a grave disservice.James Farrell, Lecturer in Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/348432014-12-08T04:08:29Z2014-12-08T04:08:29ZExtra funding for legal assistance services should only be a start<figure><img src="https://images.theconversation.com/files/66482/original/image-20141207-8645-kxo27e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Productivity Commission rightly identified widespread concerns that Australia’s civil justice system is too slow, too expensive and too adversarial.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>The <a href="http://www.pc.gov.au">Productivity Commission</a> raised a <a href="http://www.theaustralian.com.au/business/legal-affairs/productivity-commission-wants-more-money-for-legal-aid/story-e6frg97x-1227144007496">few eyebrows</a> when it called for an <a href="http://www.theage.com.au/federal-politics/political-news/australian-legal-aid-services-need-200-million-more-a-year--productivity-commission-20141203-11zff7.html">additional A$200 million</a> for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped to deal with, legal disputes”.</p>
<p>In justifying its unusual call for this significant funding injection, the commission’s report, which was tabled in parliament last week, found:</p>
<blockquote>
<p>… numerous studies show that efficient government-funded legal services generate net benefit to the community.</p>
</blockquote>
<p>Behind this headline call is a detailed <a href="http://www.pc.gov.au/inquiries/completed/access-justice/report">final report</a> of more than 1000 pages. It makes 83 recommendations to improve access to justice in Australia. </p>
<h2>Why change is needed</h2>
<p>In its <a href="http://www.pc.gov.au/inquiries/completed/access-justice/draft">draft report</a>, the Productivity Commission found that <a href="http://www.lawfoundation.net.au/ljf/app/&id=FC6F890AA7D0835ACA257A90008300DB">half of all Australians</a> will experience a legal problem this year. Most won’t get legal assistance or come into contact with our courts or other legal institutions. </p>
<p>In part, this is because Australia’s legal system is <a href="https://theconversation.com/slow-expensive-complicated-legal-system-must-be-improved-25382">“too slow, expensive and hard to understand”</a>.</p>
<p>As the commission concludes:</p>
<blockquote>
<p>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. </p>
<p>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.</p>
</blockquote>
<h2>An economist’s perspective</h2>
<p>Importantly, the Productivity Commission has brought an independent, economic analysis to the <a href="http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=213017">archaic</a> practice of law. </p>
<p>As US legal academic Edgar Bodenheimer <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3838&context=ilj">observed</a> almost 70 years ago, the legal profession has long been:</p>
<blockquote>
<p>… criticised for being behind the times, for opposing progress and change, and for clinging to the legal traditions of ages long past. </p>
</blockquote>
<p>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:</p>
<ul>
<li>ensuring legal complaint bodies can discipline lawyers for high-cost or low-quality services;</li>
<li>reviewing the <a href="http://www.cald.asn.au/slia/legal_education.php">three stages of legal education</a> (university, practical legal training and continuing professional development);</li>
<li>removing advertising bans and restrictions on <a href="http://www.clmr.unsw.edu.au/article/deterrence/court-cases/regulation-third-party-litigation-funding-australia">litigation funding</a>;</li>
<li>reviewing <a href="http://www.lsb.vic.gov.au/legal-profession/working-under-the-act/professional-indemnity-insurance/">professional indemnity insurance</a> arrangements and <a href="http://blogs.unimelb.edu.au/opinionsonhigh/2013/08/16/bant-gillespie-jones/">trust account</a> regulations; and</li>
<li>investigating a new limited licence for family law.</li>
</ul>
<p>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.</p>
<h2>Legal services for disadvantaged people</h2>
<p>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:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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. </p>
<p>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:</p>
<ul>
<li><a href="http://affordingjustice.com.au/legal-task-help/">“unbundling”</a> legal services;</li>
<li>better co-ordinating pro bono services, recognising that these contribute less than 3% of legal assistance services required;</li>
<li>investigating the appropriateness and effectiveness of <a href="http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/default.aspx">family dispute resolution</a> schemes;</li>
<li>funding <a href="http://www.abc.net.au/radionational/programs/breakfast/boost-legal-aid-productivity-commission/5940102">strategic advocacy and law reform</a> activities that seek to identify and remedy systemic issues and so reduce demand for frontline services;</li>
<li>making eligibility principles for grants of legal aid consistent;</li>
<li><a href="http://www.abc.net.au/news/2014-12-05/indigenous-legal-aid-cuts-productivity-commission-report/5945864">reversing funding cuts</a> to Aboriginal and Torres Strait Islander legal services and ensuring continuation of Aboriginal Family Violence Legal Services; and</li>
<li>improving the collection and communication of data and evaluation.</li>
</ul>
<h2>Next steps</h2>
<p>It is difficult to argue with any of the Productivity Commission’s recommendations, although some will. There are already <a href="http://www.naclc.org.au/cb_pages/news/NACLCWelcomesProductivityCommissionReportConclusion200MillionNeededforLegalAssistanceServices.php">concerns</a> 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.</p>
<p>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.</p>
<p>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.</p><img src="https://counter.theconversation.com/content/34843/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Farrell is the director of the Queensland Association of Independent Legal Services, treasurer of the National Association of Community Legal Centres, and chairperson of the Queensland Legal Assistance Forum.</span></em></p>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…James Farrell, Lecturer in Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/327072014-12-03T19:34:48Z2014-12-03T19:34:48ZTort wars: class actions set to increase as laws wind back<figure><img src="https://images.theconversation.com/files/61751/original/p4sv2nps-1413332666.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New laws need to strike a balance between justice and prompting an influx of litigation</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>In the early to mid-2000s governments throughout Australia introduced reforms restricting rights to claim for negligence. The tort of negligence and other statutory causes of action, including the prohibition on misleading or deceptive conduct, enables a person who is injured by another the right to seek compensation. The reforms were driven by concerns that high compensation claims were unaffordable for society and were increasing insurance premiums. </p>
<p>Now they are slowly being unwound. New laws are allowing lawyers more freedom on how to charge their clients, and rules restricting liability are being eroded through the courts. A new report released this week by the <a href="http://www.pc.gov.au/projects/inquiry/access-justice">Productivity Commission</a> also advocates relaxing legal billing rules to encourage more litigation.</p>
<p>The reforms 10 years ago made a variety of changes such as: raising the standard of care; limiting liability for dangerous recreational activities; creating compensation thresholds; and capping damages. They also limited ways lawyers could charge fees and created disincentives for suing “deep pocket” entities.</p>
<h2>Changes to conditional billing and contingency fees</h2>
<p>Lawyers in Australia may charge fees using conditional billing agreements. This means the fee only needs to be paid if a successful outcome is achieved. Lawyers are also able to charge an uplift fee, or an extra amount if the action succeeds, when the case is particularly risky. This charge must not exceed 25% of the total fee.</p>
<p>There are restrictions on fee arrangements. Lawyers are currently not permitted to charge contingency fees, or a fee calculated by reference to the amount recovered. Where an uplift fee is used the lawyer must disclose why it is needed. In NSW, conditional billing with an uplift cannot be used in a claim for damages. </p>
<p>The <a href="http://www.austlii.edu.au/au/legis/vic/num_act/lpulaa201417o2014452/">Legal Profession Uniform Law</a> which will operate in NSW and Victoria from early 2015 relaxes some of these requirements. Lawyers will no longer need to disclose the reason for charging uplift fees. The changes also lift the ban on conditional billing with an uplift in damages claims. </p>
<p>The new laws which will apply to around 75% of Australia’s lawyers are designed to be the model for a national legal regime. They may encourage more litigation and/or higher legal fees.</p>
<p>The other reform, put forward by the Productivity Commission this week, will remove the ban on contingency fees. The argument for greater fee flexibility is to remove barriers to access to justice. However, unless carefully regulated, the impact of allowing contingency fees may be more litigation and higher damages claims while not necessarily making it cheaper for clients.</p>
<h2>The court’s inconsistent approach to ‘deep pocket’ targeting</h2>
<p>The “deep pocket syndrome” describes where professional service providers and public authorities are targeted in litigation for their insurance cover. </p>
<p>Prior to the civil liability reforms a successful plaintiff could recover their entire loss from any defendant regardless of their share of responsibility. This was particularly attractive when the main responsible entities were insolvent or couldn’t afford to pay the claim. It led to rising insurance premiums for doctors, architects and local councils.</p>
<p>To address this, Australia adopted the system of proportionate liability. This meant that each defendant was only liable to pay damages to the extent of their share of the responsibility for the harm.</p>
<p>However a recent <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2014/2014fcafc0065">Federal Court case</a> involving the sale of complex financial products to local councils may change the system. </p>
<p>The Federal Court considered two important federal statutory regimes – the <em>Corporations Act 2001</em> and the_ Australian Securities and Investments Commission Act 2001_. Its reasoning also applies to the <em>Competition and Consumer Act 2011</em>. The case is important because the provisions considered by the court y the court are routinely used in shareholder, investment advice and product liability class actions.</p>
<p>The court was asked to decide two claims, one of which was covered by the proportionate liability laws. The plaintiff succeeded on both claims and because they did, the court allowed them to chose the remedy they wanted. This enabled the plaintiff to circumvent the proportionate liability laws and recover 100% of its losses from any of the respondents.</p>
<p>The outcome was surprising because a week earlier in another <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2014/2014fcafc0064">case</a>, a Full Court majority adopted the opposite construction and said it would apply proportionate liability to all claims based on the same facts. </p>
<p>If the approach used in the local council case prevails then the proportionate liability restriction becomes redundant. A plaintiff will be able to employ a number of causes of action in relation to the same alleged loss, and if successful on a number of them, elect one that is not subject to the proportionate liability regime. </p>
<h2>Will we see an influx of litigation?</h2>
<p>These changes demonstrate that civil liability reforms are slowly being unwound. The question is whether they will result in a better balance between the interests of injured persons, insurers, defendants and taxpayers or herald a return to the concerns that triggered the initial reforms? </p>
<p>Core restrictions on personal injury claims still remain so it is unlikely we will see a sudden influx of cases. However, it is more likely that there will be an increase in litigation in other areas.</p>
<p>This has already started with more class actions by shareholders and overcharged consumers. These new claims, if brought in sufficient volume, will have an impact on the insurance market and the concerns of early 2000 will start to reappear. We are not at that point yet but do we want to relive past mistakes before taking action?</p><img src="https://counter.theconversation.com/content/32707/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Legg is affiliated with Jones Day, Law Council of Australia Class Actions Committee and the National Pro Bono Resource Centre.</span></em></p>In the early to mid-2000s governments throughout Australia introduced reforms restricting rights to claim for negligence. The tort of negligence and other statutory causes of action, including the prohibition…Michael Legg, Associate Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/343232014-11-19T06:03:52Z2014-11-19T06:03:52ZPro bono is great education for law students, but they shouldn’t fill gap left by legal aid cuts<figure><img src="https://images.theconversation.com/files/64881/original/qp5vpp64-1416327973.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The halls of the Royal Courts of Justice shouldn't have to throng with students.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/belowred/1403419919/in/photolist-391TRa-53H8yg-53HbVX-8uvx81-cqfNG7-mqEbP-nUaBJ1-448j5-73G4HS-mqEbN-mqEbW-onH4r-46xqDr-9YBgdU-bgZVLt-5dgdkU-5dniB2-9SiVgF-mqEbQ-5pEBNT-L2QQD-x7vef-sK4wy-dBjh5q-asyXpf-i7FNz-5fAH2w-4QSsPm-6iCJQ2-6iCJPR-6iCJQ6-mqEbR-mqEbU-6QQMVd-bUqbNJ-nJDF3n-9YiWra-kKPLd-4a8yHQ-gm8pon-6q2tpo-o21hHu-a3WYXW-aBweq8-a1uuNy-dBdPB6-51rJUn-bUqbK1-budmgZ-9ZpvgH">Nick Garrod</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Law students are doing more pro bono work than ever before. In 2014, 70% of all UK law schools now provide free legal services to individuals, groups and organisations. According to the latest <a href="http://lawworks.org.uk/index.php?cID=49&cType=news">LawWorks Law School Pro Bono and Clinic</a> report, this was up from <a href="http://www.probonogroup.org.uk/lawworks/docs/Student%20report%20Final.pdf">46% of law schools</a>in 2006 and <a href="http://lawworks.org.uk/index.php?cID=10&cType=news">61% in 2010</a>.</p>
<p>Clinical legal education – where law students provide free advice to the public – began in the United States. The <a href="http://heinonline.org/HOL/Page?handle=hein.journals/clinic7&div=11&id=&page=&collection=journals">first wave</a> was in the early 20th century as law schools started to look beyond traditional chalk-and-talk teaching methods. In the 1960s, the civil rights movement led to a rise in law school staff and students looking to assist those who could not obtain legal support elsewhere. </p>
<p>Slowly, UK law schools began to see the advantages of including clinical work in their programmes. Here was an opportunity to allow students to experience lawyering in context and to develop a range of practical skills including communication, strategic planning and commercial awareness. </p>
<p>But it took us some time to get into the swing of things. Our first wave wasn’t <a href="http://oxfordindex.oup.com/view/10.1093/acprof:oso/9780195381146.003.0001">until the 1970s</a> – and even in 1995 there were only eight law schools which ran a legal advice clinic. </p>
<h2>Flourishing of legal clinics</h2>
<p>Today, we’re in good shape. We have <a href="https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/">law offices</a>, public legal education projects such as <a href="http://www.streetlaw.org/en/about/who_we_are">Streetlaw</a>, <a href="http://www.law.cf.ac.uk/probono/innocence/">Innocence Projects</a> and partnerships with law centres, Citizens Advice Bureaux and law firms, to name but a few. </p>
<p>New projects are materialising with increasing frequency. Take for example the launch of the <a href="http://www.liverpoolecho.co.uk/news/business/small-firms-free-legal-help-8026986">Liverpool John Moores University Legal Advice Centre</a> which opened its doors in early November, following a successful pilot.</p>
<p>The LawWorks Report found that 85% of the law schools which responded to its survey were looking to increase their current pro bono provision. Extending legal subject areas, extra client appointments, establishing more local partnerships, and obtaining bigger premises are all on the cards. </p>
<p>It is estimated that there are 10,000 students currently involved in pro bono work. Imagine what this figure will be when these new projects are fully functional. And let’s not forget the significant number of supervisors who ultimately take responsibility for the legal advice being provided.</p>
<h2>Crucial service</h2>
<p>The work that law students and their supervisors undertake for the community is more than admirable. They provide a crucial service to those who are often left with no means of support elsewhere. I know from my own experience as a clinical supervisor how helpless clients can feel. </p>
<p>In a world where <a href="http://www.theguardian.com/law/datablog/2014/sep/09/legal-aid-in-england-and-wales-what-is-changing">legal aid has been all-but eradicated</a> and <a href="http://www.theguardian.com/law/2014/oct/23/legal-advice-litigants-without-lawyers-justice">650,000 people have been deprived of support</a>, there is a sense that there is no-one to turn to for help. </p>
<p>Perhaps this is why we have seen an increase in schemes such as the <a href="http://www.thepsu.org/">Personal Support Unit</a>, where volunteers guide those who cannot afford representation in court through procedures that can seem so alien. Those schemes have not been without criticism. Last year, journalist and editor of <a href="http://thejusticegap.com/us/">The Justice Gap</a> website, Jon Robins, said that the idea of well-meaning but unqualified amateurs helping with legal queries made his <a href="http://www.theguardian.com/law/2012/dec/13/law-students-legal-aid-gap">heart sink</a>.</p>
<h2>Students no replacement</h2>
<p>When I think of the clinic I work in, my heart doesn’t sink. It bursts with pride. Every day I see well-supervised students who put their all (and then some more) into providing a quality service to members of the public. But what we mustn’t do is look upon law schools as a replacement for legal aid, or a sticking plaster for a somewhat bruised legal system. </p>
<p>We cannot forget that this is clinical legal <em>education</em>, designed to give law students the opportunity to hone their practical legal skills, to experience what it is like to sit opposite a real person with a real issue and help them solve a problem. They need to understand how the cases and legislation they learn about in the classroom truly affect individuals and organisations – and to reflect meaningfully on their personal strengths and weaknesses. </p>
<p>We need to give our students time to learn. If we start to use them solely to fill the justice gap then we may lose the educational benefits which make clinic such a formative experience.</p><img src="https://counter.theconversation.com/content/34323/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elaine Gregersen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Law students are doing more pro bono work than ever before. In 2014, 70% of all UK law schools now provide free legal services to individuals, groups and organisations. According to the latest LawWorks…Elaine Gregersen, Solicitor Tutor, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/288852014-07-10T01:50:44Z2014-07-10T01:50:44ZLawyers who help people protect their rights aren’t the problem here<p>Australia’s courts serve us well, acting independently in their application of the law. However, that doesn’t protect them from attacks for performing their legal and constitutional duties. </p>
<p>Similarly, lawyers who act for people seeking to protect their rights are criticised for their role. Nowhere is this more stark than in the noble work of lawyers providing legal assistance to people seeking asylum in Australia.</p>
<p>Some of these attacks are <a href="http://www.julianburnside.com.au/costello2013.htm">personal and private</a>, but increasingly they are public. An example is this week’s effort from The Australian’s associate editor, Chris Kenny, in response <a href="https://theconversation.com/high-court-puts-interim-block-on-sri-lankan-asylum-transfer-28877">to applications to the High Court</a> supported by Shine Lawyers’ George Newhouse.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"486261743522291712"}"></div></p>
<p>Let’s leave aside the errors in Kenny’s 140 characters, such as the assertion that the government funds Shine for this work – like much of the work in this space, vulnerable people rely on pro bono assistance – and the <a href="https://theconversation.com/statement-by-legal-scholars-regarding-the-situation-concerning-sri-lankan-asylum-seekers-28891">questionable legitimacy/lawfulness</a> (not to mention <a href="https://theconversation.com/how-we-treat-the-vulnerable-is-a-moral-test-beyond-politics-24412">morality</a>) of the policies. </p>
<p>Let’s also leave aside Kenny’s <a href="http://blogs.theaustralian.news.com.au/chriskenny/index.php/theaustralian/comments/australias_pull_factors_are_a_deadly_lure/desc">history of attacking</a> this work, including suggesting that the <a href="http://blogs.theaustralian.news.com.au/chriskenny/index.php/theaustralian/comments/explaining_the_essence_of_the_compassionista/">“compassionistas”</a>, and their barrackers in the <a href="http://www.theaustralian.com.au/opinion/columnists/blame-the-love-media-as-labor-chooses-politics-of-unelectability/story-fn8qlm5e-1226777332698">“love media”</a> either apologise or slink away, and leave the serious politicians to thrash out a policy “in the national interest”.</p>
<p>Let’s instead focus on the important role of the courts and of the lawyers who assist clients to bring their matters before the courts.</p>
<h2>Rule of law checks the abuse of power</h2>
<p>The concept of the rule of law is not well understood. It is, simply put, that rights are decided by reference to established law, not by the whim of individuals. </p>
<blockquote>
<p>The essence of government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.</p>
</blockquote>
<p>When <a href="http://www.constitution.org/jm/18291202_vaconcon.txt">James Madison</a> and the other founding fathers of the United States were developing that country’s institutions, they considered it vital to create protections against abuse of power by governments. A key protection was independent courts.</p>
<p>Australia’s founding fathers agreed and many of the US protections found their way into our own constitution. Importantly, the rule of law has been protected through a number of mechanisms, starting with <a href="http://www.ruleoflaw.org.au/">adherence to the rule of law</a>.</p>
<p>In our legal tradition, A. V. Dicey’s <a href="http://www.constitution.org/cmt/avd/law_con.htm">conceptualisation of the rule of law</a> has been generally adopted, although the term is certainly contested. Dicey described “rule of law” through three main tenets:</p>
<ol>
<li>Absolute supremacy of the regular law, as opposed to arbitrary power. </li>
<li>Equality of all men in the eyes of the law. </li>
<li>The law of the constitution is not a source of human rights, but the consequence of inherent human rights and these are upheld by the common law as defined by the courts. </li>
</ol>
<p>Martin Krygier <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1218982">suggests</a> that the rule of law allows people to live without fear as it “saves us from others and them from us” as well as “requiring rulers to operate under law”.</p>
<p>According to <a href="http://www.ag.gov.au/About/Pages/Ruleoflaw.aspx">our own government</a>, the rule of law underpins the way Australian society is governed. Everyone — including citizens and the government — is bound by and entitled to the benefit of laws.</p>
<p>The Attorney-General’s Department describes its primary responsibility as protecting and promoting the rule of law. This includes supporting “the Australian government in being accountable for actions, making rational decisions and protecting human rights”.</p>
<p>The <a href="http://www.worldjusticeproject.org/what-rule-law">World Justice Project</a> defines the rule of law as a system of rules and regulations that upholds the following four universal principles:</p>
<ul>
<li>The government and its officials and agents as well as individuals and private entities are accountable under the law.</li>
<li>The laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property.</li>
<li>The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.</li>
<li>Justice is delivered timely by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the make-up of the communities they serve.</li>
</ul>
<p>Another great American statesman, <a href="http://www.wwe.com/superstars/jesseventura">Jesse Ventura</a>, observed:</p>
<blockquote>
<p>You have to accept the rule of law, even when it’s inconvenient, if you’re going to be a country that bides by the rule of law.</p>
</blockquote>
<p>Caroline Kennedy <a href="http://news.yahoo.com/jfk-awards-ousted-iowa-justices-us-diplomat-040220172.html">notes that</a>:</p>
<blockquote>
<p>The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.</p>
</blockquote>
<p>Former Chief Justice of Australia Murray Gleeson said:</p>
<blockquote>
<p>As an idea about government, the essence of the rule of law is that all authority is subject to, and constrained by, law. </p>
</blockquote>
<p>That means that the law must be capable of being ascertained in advance and that its application must be impartial. </p>
<h2>Supporting people before the courts</h2>
<p>Despite these noble ideals, significant sections of the community have traditionally been denied any real opportunity to exert their legal rights. Their cases would not even come before the courts without meaningful assistance from lawyers. </p>
<p><a href="http://www.altlj.org/publications/legal-studies/product/847-2013-vol-38-4-public-interest-litigation/">Researchers</a> have identified a number of Australian cases that have had significant impacts on public policy. These include anti-discrimination law, the government’s power to detain non-citizens, voting rights, asylum-seeker processing and other important areas. </p>
<p><a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/alterlj17&div=70&id=&page=">Other research</a> has gone further, identifying the role of community-based legal services in supporting clients in traditional <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/alterlj17&div=70&id=&page=">poverty law areas</a>, including housing, prisons, consumer credit, domestic violence, social security, discrimination and police.</p>
<p>Critics of the system fail to recognise that many cases of that sort are run by lawyers for little or no payment. The taxpayer might be said to pay for some of these cases in one of two circumstances. If the lawyer who brings the case is briefed by legal aid, they will be paid out of public funds, although generally at 20% to 50% of the rate that lawyer could otherwise charge. </p>
<p>If the claim succeeds against a public authority, the losing party will normally be ordered to pay costs, in which case the lawyer for the successful party will generally be paid.</p>
<p>Lawyers do have an important role to play in preserving and promoting the rule of law, and defending the rights of people to whom Australian governments owe a duty. Some do this by providing <a href="http://www.naclc.org.au/postcode_search.php">advice and assistance</a> to the many clients who have legal problems and can’t get help. Some work to promote <a href="http://www.naclc.org.au/cle_database.php">community understanding of legal issues</a>. Some seek to do this through <a href="http://pc.gov.au/__data/assets/pdf_file/0006/137877/subdr301-access-justice.pdf">active engagement</a> with policy makers, although recent <a href="http://www.theguardian.com/commentisfree/2014/jun/27/last-chance-to-be-heard-for-law-services-fighting-to-protect-the-most-vulnerable?CMP=twt_gu">funding restrictions</a> will reduce this important work.</p>
<p>And, yes, some lawyers go to court with their clients. This is something that should be applauded, not vilified, in a country that respects the rule of law and the institutions that protect its peoples’ rights.</p><img src="https://counter.theconversation.com/content/28885/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Farrell is Director of the Queensland Association of Independent Legal Services.</span></em></p><p class="fine-print"><em><span>Julian Burnside is a patron of the Asylum Seeker Resource Centre. He does not accept any fees when acting for asylum seekers, and any offers of payment for other services in this area are politely declined.</span></em></p>Australia’s courts serve us well, acting independently in their application of the law. However, that doesn’t protect them from attacks for performing their legal and constitutional duties. Similarly…James Farrell, Lecturer in Law, Deakin UniversityJulian Burnside, Adjunct Professor, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/276292014-06-20T04:30:44Z2014-06-20T04:30:44ZLawyers for victims of crime won’t guarantee better results<p>The South Australian Commissioner for Victims’ Rights, Michael O’Connell, <a href="http://www.adelaidenow.com.au/news/south-australia/sa-victims-rights-commissioner-says-victims-should-be-represented-by-lawyers-during-criminal-sentencing-hearings/story-fni6uo1m-1226940821137">recently called for</a> victims of crime to have their own lawyers at the time that criminal defendants are sentenced.</p>
<p>O’Connell’s call was prompted by two sentences handed down by local South Australian courts. First, a 70-year-old woman pleaded guilty to aggravated driving without due care after her car swerved onto the wrong side of a country road, killing a 20-year-old man who was driving in the opposite direction. She received a suspended two-month jail sentence and her driver’s licence was suspended for nine months. </p>
<p>Secondly, a 35-year-old woman and her 37-year-old partner, a primary school teacher, pleaded guilty to multiple counts of unlawful sexual intercourse, indecent assault and production of child pornography involving the woman’s ten-year-old daughter. They were each sentenced to five-and-a-half years prison but will be eligible for parole in three-and-a-half years.</p>
<p>Families of both victims have expressed outraged at the sentences, saying they are grossly inadequate.</p>
<h2>Victims’ involvement on the rise</h2>
<p>Over the last 20 years, victims of crime in Australia have become much more involved in criminal prosecutions, as the United Nations <a href="http://www.un.org/documents/ga/res/40/a40r034.htm">Declaration of Basic Principles of Justice</a> for Victims of Crime and Abuse of Power has been recognised, and <a href="http://www.cvsa.asn.au/">victim rights activism</a> has become a powerful political force. </p>
<p>There are <a href="http://www.victimsupport.org.au/rights.php">variations across the country</a>, but victims can now often <a href="https://theconversation.com/victim-impact-statements-to-sway-homicide-penalties-think-again-22955">provide impact statements</a> to the court, make submissions on penalty, be informed about charges being withdrawn or offenders being released from prison, and have access to social workers for support through the prosecution process. However, they are general witnesses only – not parties to the prosecution.</p>
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<img alt="" src="https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=708&fit=crop&dpr=1 600w, https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=708&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=708&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=889&fit=crop&dpr=1 754w, https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=889&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/51321/original/4qqhcw85-1402986567.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=889&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Michael O'Connell says having lawyers represent victims at sentencing is ‘inevitable’.</span>
<span class="attribution"><span class="source">http://www.voc.sa.gov.au/</span></span>
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<p>O’Connell argues that the “inevitable” next step is having lawyers appear for victims on an equal footing with other lawyers during sentencing hearings. But is it either inevitable or desirable that victims have legal representation in criminal trials?</p>
<p>Victims certainly hunger to be heard in the sentencing process, as they have a general view that sentences <a href="https://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/Publicopiniononsentencing:recentresearchinAustralia/$File/public%20opinion%20on%20sentencing.pdf">are too light</a>. They might feel more satisfied with the process and outcome of prosecutions if their views were presented alongside those of the defendant. </p>
<p>There are precedents for victim participation in criminal prosecutions. The International Criminal Court prides itself on having <a href="http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/participation/Pages/participation%20of%20victims%20in%20proceedings.aspx">victims participate at all stages</a> of prosecutions, including at sentencing. </p>
<p>O’Connell has called only for victims to be involved at the sentencing stage. However, just as he calls this the inevitable next step, calls for further representation would surely follow if this proposal were accepted.</p>
<h2>The case against more lawyers</h2>
<p>Further involvement of victims would raise important issues. Who would pay for the legal representation of victims? How much would the length and cost of trials increase if victims were calling, examining and cross-examining witnesses? How long would other cases be delayed because of longer trials? </p>
<p>Most significantly, what would happen when, again inevitably, victims wanted a different approach to the trial than the prosecution did? Would fewer convictions result because trials become a hotchpotch of conflicting approaches by prosecution and victim lawyers?</p>
<p>Returning to the current proposal and the cases that prompted it, while the two cases both involve families unhappy with sentences, the offending and sentencing issues had little in common. Public opinion on the sentence for the child sex case would surely support the victim’s father in his belief that the sentence was too light. An appeal court may well agree.</p>
<p>The driving without due care case is different. The grief and anger of the family at losing the young man they loved is palpable and their desire for a harsher penalty is entirely understandable.</p>
<p>However, a 70-year-old woman who caused a death through momentary inattention without speed or alcohol being involved is likely to be a sympathetic defendant within the court and the community. </p>
<p>The family’s love and loss and grief and anger fuel their desire for a prison sentence for the driver. If they had independent representation they could share that pain more readily, and any sentencing judge would empathise with them. However, judges or magistrates are unlikely ever to jail such a woman and the bulk of the community is unlikely to want them to. </p>
<p>Every day in every court, defence and prosecution lawyers make submissions on sentence that are not followed. That can be disappointing or even infuriating, but it is part of the job. </p>
<p>Victims’ lawyers would not be able to secure the sentences that victims want any more than other lawyers can. But the disappointment victims would feel at the imposition of a sentence that they consider too light could be greater than it is now if their voice had been heard but their opinion not accepted.</p><img src="https://counter.theconversation.com/content/27629/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kellie Toole does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The South Australian Commissioner for Victims’ Rights, Michael O’Connell, recently called for victims of crime to have their own lawyers at the time that criminal defendants are sentenced. O’Connell’s…Kellie Toole, Lecturer in Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/253822014-04-10T04:31:55Z2014-04-10T04:31:55Z‘Slow, expensive, complicated’ legal system must be improved<figure><img src="https://images.theconversation.com/files/45952/original/gr35wc2f-1397026444.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We should continue to agitate for fairer, cheaper and more just legal systems, after a Productivity Commission draft report noted the difficulties for many in accessing justice.</span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>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”.</p>
<p>This was a key finding of the Productivity Commission’s <a href="http://pc.gov.au/projects/inquiry/access-justice/draft">draft report</a> of its inquiry into access to justice, released this week.</p>
<p>The 891-page report seeks feedback on a number of findings and recommendations to improve access to justice. But why are they needed? And are the recommendations practical?</p>
<h2>Australians’ legal problems</h2>
<p>In 2008, NSW’s <a href="http://www.lawfoundation.net.au/">Law and Justice Foundation</a> randomly surveyed over 20,000 Australians about their legal problems. The findings, published in a <a href="http://www.lawfoundation.net.au/ljf/app/&id=FC6F890AA7D0835ACA257A90008300DB">series of reports</a> in 2012, identified that almost half of respondents experienced a legal problem in the last year. But legal problems are concentrated in a small group of people: around 10% of people account for more than half of these problems.</p>
<p>This research also indicated that people’s social circumstances contribute to their experience of legal problems. In medical parlance, these are gaining prominence as <a href="https://theconversation.com/what-are-social-determinants-of-health-10864">“social determinants of health”</a>. <a href="https://theconversation.com/how-doctors-and-lawyers-can-help-vulnerable-patients-9999">Similarities exist</a> with the social determinants of legal problems. </p>
<p>The research found that people with a disability, single parents, unemployed people and recipients of social security payments, Aboriginal and Torres Strait Islander peoples and people from culturally and linguistically diverse backgrounds are more likely to have legal problems.</p>
<p>However, most people are unable to access legal assistance. This is because they don’t know where to turn or it is <a href="https://theconversation.com/coupon-justice-wont-address-legal-aid-crisis-19080">too expensive</a>. The Productivity Commission examined these barriers, among other issues focused on increasing access to justice and reducing costs for the public and governments.</p>
<h2>Reducing costs of dispute resolution</h2>
<p>With <a href="http://pc.gov.au/projects/inquiry/access-justice/terms-of-reference">detailed terms of reference</a>, the Productivity Commission was tasked (by the former Labor government) to examine:</p>
<blockquote>
<p>Australia’s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law.</p>
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<p>The costs issue is vital. The Australian government spends over A$700 million each year on its own legal advice and representation. It is the largest consumer of legal services and is particularly interested in systemic reforms that could reduce this amount. Businesses also complain about the cost of lawyers.</p>
<p>The commission considers these issues in detail. Its report has recommendations to increase access to <a href="https://theconversation.com/do-you-need-your-day-in-court-the-evolution-of-dispute-resolution-4573">alternative dispute resolution</a>, further improve clarity in costs disclosures (a consistent complaint levelled at lawyers), increase competition and reduce regulation of lawyers, and improve access to ombudsmen and lower-level tribunals.</p>
<p>Generally, these are positive reforms that will increase consumer confidence in the legal system. Some may be opposed by the profession and their professional bodies, including increasing access for professional indemnity insurance and allowing solicitors to advertise more and accept cases on the basis of recovering a percentage of clients’ monetary compensation.</p>
<p>These are difficult issues for the legal profession to embrace. They will require significant and thoughtful development by policymakers, legal institutions and the profession if they are to be implemented and be effective.</p>
<h2>Legal help for the disadvantaged</h2>
<p>Australia has four “pillars” of government-funded legal assistance: legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services, and Aboriginal family violence prevention legal assistance services. The legal profession also provides significant volunteer and pro bono assistance to people.</p>
<p>While the <a href="http://www.ag.gov.au/LegalSystem/Legalaidprograms/Pages/Reviewoflegalassistanceprograms.aspx">review</a> of the National Partnership Agreement on Legal Assistance Services has sat on the desks of federal attorneys-general Mark Drefyus and then George Brandis for almost a year, the Productivity Commission has examined the operation of these services, and noted their important role in providing people with free legal assistance. It has called for additional resources and better co-ordination of activities. </p>
<p>The commission has also identified that Indigenous Australians are particularly vulnerable to legal problems and require culturally appropriate legal services from specialist experts. Its suggested changes include recognising the increased costs required to meet legal need in remote communities, clarifying targets, benchmarking services performance and additional state/territory government funding in this area.</p>
<p>The report identifies the limitations of pro bono work, which should not be used as a “band-aid” for an underfunded legal assistance program. The commission is looking for ways to increase private lawyers’ capacity to provide assistance. </p>
<p>Other ideas, like a HECS-type scheme for legal expenses, have no future and are likely to be removed from the final report.</p>
<h2>A way forward</h2>
<p>Individuals and organisations are invited to respond to the Productivity Commission’s draft report or appear at <a href="http://pc.gov.au/projects/inquiry/access-justice/public-hearings">public hearings</a> to discuss the issues raised in the discussion paper, before a final report is provided to the government in September 2014.</p>
<p>Many of the recommended improvements to Australia’s civil justice system are unlikely to be achieved in the current political and fiscal environment. However, underinvestment in our legal structures and services – a cornerstone of our democratic system – comes at significant social and economic costs.</p>
<p>We should continue to agitate for fairer, cheaper and more just legal systems. The Productivity Commission’s report provides some useful suggestions to improve the system and is a good basis for more discussion among policymakers, service providers and the community.</p><img src="https://counter.theconversation.com/content/25382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Farrell is the Director of the Queensland Association of Independent Legal Services, treasurer of the National Association of Community Legal Centres, and chairperson of the Queensland Legal Assistance Forum.</span></em></p>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…James Farrell, Lecturer in Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.