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‘Slow, expensive, complicated’ legal system must be improved

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. AAP/Dave Hunt

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”.

This was a key finding of the Productivity Commission’s draft report of its inquiry into access to justice, released this week.

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?

Australians’ legal problems

In 2008, NSW’s Law and Justice Foundation randomly surveyed over 20,000 Australians about their legal problems. The findings, published in a series of reports 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.

This research also indicated that people’s social circumstances contribute to their experience of legal problems. In medical parlance, these are gaining prominence as “social determinants of health”. Similarities exist with the social determinants of legal problems.

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.

However, most people are unable to access legal assistance. This is because they don’t know where to turn or it is too expensive. The Productivity Commission examined these barriers, among other issues focused on increasing access to justice and reducing costs for the public and governments.

Reducing costs of dispute resolution

With detailed terms of reference, the Productivity Commission was tasked (by the former Labor government) to examine:

Australia’s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law.

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.

The commission considers these issues in detail. Its report has recommendations to increase access to alternative dispute resolution, 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.

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.

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.

Legal help for the disadvantaged

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.

While the review 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.

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.

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.

Other ideas, like a HECS-type scheme for legal expenses, have no future and are likely to be removed from the final report.

A way forward

Individuals and organisations are invited to respond to the Productivity Commission’s draft report or appear at public hearings to discuss the issues raised in the discussion paper, before a final report is provided to the government in September 2014.

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.

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.

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