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Access to Justice Spotlight: A Review of the Recent Access to Justice Report in Australia

Kimberley Byers, CFCJ Student Researcher

Tuesday, June 24, 2014

The problems associated with a lack of access to justice are a serious concern here in Canada. These concerns have been deftly captured in two recent national reports – one from the Action Committee on Access to Justice in Civil and Family Matters and one from the Canadian Bar Association – and several recent studies,[1] and research projects.[2] These issues, however, are not unique to Canada. This spring, the Australia Productivity Commission – an independent research and advisory body of the Australia Government – released the Access to Justice Arrangements: Draft Report, which details the access to justice issues facing those in the land down under.

The Draft Report is the first product of an in-depth 15-month inquiry into the costs of accessing justice, gaining legal representation, and the impact these have on access to, and the quality of justice attained in the Australian civil (including family law) dispute resolution system.  The Draft Report was based on information gathered through public submissions, consultations with governments, regulatory bodies, legal organizations, and members of the legal community, and surveys of legal need from across the country.

The Draft Report is a mammoth undertaking with close to 900 pages of research and recommendations.  Many of the issues identified will be familiar to those active in the access to justice debates. For example, similar to the Final Report of the Action Committee on Access to Justice in Civil and Family Matters,[3] the Draft Report characterizes the Australian justice system as being slow, expensive, and complicated. Beyond these generalizations however, the Draft Report makes several interesting recommendations on how to improve the justice system – some of which align with current policy recommendations under discussion here in Canada, and some of which are unique.  While there are far too many recommendations offered in the Draft Report to be captured here, the proposed reforms seek to address the following five issues:

(1) The permeation of problems between the informal and formal system;

(2) The large potential economic gains that could be reaped from instituting more early and informal solutions;

(3) The aspects of the formal system that contribute to access to justice problems;

(4) The “lumpy” costs that justice system users often experience; and,

(5) Improving legal assistance services for disadvantaged Australians.

1. The permeation of problems between the informal and formal system

The Draft Report found that everyday Australians lacked knowledge about how to deal with their legal issues.  Whether it was the result of a lack of information about the process, their rights, or from whom to seek advice. Although there are a host of organizations and websites speaking to legal issues in Australia, the Commission recommended that there be a centralized source for legal advice, referrals and information in each region.  The LawAccess NSW (New South Wales) was offered as a best practice example.

2. The large potential gains from early and informal solutions

In terms of early and informal solutions, the Draft Report spent some time focusing on the benefits brought by currently existing, but under-utilized professions and processes such as Ombudsmen and alternative dispute resolution.  By engaging Ombudsmen more, it was held that costs to justice system users would be reduced, disputes resolved more quickly, and the level of unmet legal needs be lowered.  In keeping with lowering costs and speeding up resolution, the Commission also highlighted the continued need to incorporate alternative dispute resolution processes not only in the courts, but also for disputes between consumers and government departments.  The Australian Tax Office’s Alternative Dispute Resolution process was held up as an example in this regard.

3. The aspects of the formal system that contribute to access to justice problems

The Commission also highlighted several factors of the formal system that contribute to problems accessing justice. For example, the creeping legalism of tribunals, and the adversarial nature of most court-based dispute resolution processes were seen as key issues.  In terms of the former, the Commission noted the increased used of legal representation in tribunals contradicted the intended nature of the processes.  In order to ensure tribunals are fair, economical and efficient, the Commission recommended placing rigorous restrictions on legal representation, thus reducing costs to users and speed up the tribunal process.

The Commission also highlighted the negative impacts of the adversarial nature of dispute resolution. The Draft Report notes, for example, that not only does the formal justice system provide little incentive for parties to cooperate, but the adversarial nature of the system also means that costs are unpredictable, and that self-represented litigants (SRLs) are at a disadvantage since they are often unfamiliar with the processes involved and unable to afford long-drawn out litigation. Therefore, greater use of alternative dispute resolution processes was recommended, along with changes to the costs awards structure.  In particular, the Commission proposed using fixed scales for costs in lower courts, and cost management and caps at higher-level courts.  With respect to SRLs, who are presently unable to seek costs in litigation, it was proposed that they be brought under the cost recovery structure using the fixed scale.  Further recommendations to assist SRLs followed those raised in Canada, such as improving the assistance provided to SRLs by judges and the courts, and ensuring consistent rules and guidelines.[4]

4. Helping justice system users deal with “lumpy” costs

Cost concerns were discussed throughout the Draft Report. A unique feature of the report looked at how to deal with the large and unexpected, or “lumpy” costs, that arise unexpectedly during formal legal proceedings.  With many justice system users falling into what the report termed “the missing middle”, – i.e. users who do not qualify for legal assistance and yet do not have the financial resources to deal with large and unpredictable costs – recommendations centered on unbundling legal services, and waiving of fees for disadvantaged litigants.  Unbundling, for example, would make costs more manageable and predictable.  It would also provide users the opportunity to purchase task-specific assistance, rather than have to cope with the traditional “full service” costs that are currently the norm.

5.  Improving legal assistance services for disadvantaged Australians

Finally, the Commission evaluated the legal assistance services provided to disadvantaged Australians.  It was determined that a key problem in accessing the necessary legal support is a result of restricted legal-aid funding for civil matters and the fact that the distribution of funds was not matched to need.[5]  As was stated in the report, budgetary decisions have either been “ad hoc” or based on history rather than taking into account legal need or the costs of service provision in determining where community legal centres would better serve the public.[6]  Therefore, it was recommended that the allocation of funds servicing disadvantaged Australians be reallocated in order to better target areas of need. Further, given the inconsistent eligibility criteria between legal aid and community legal centres, the Commission recommended that an established measure of disadvantage be determined and consistently applied across the board.  However, they also recommended that eligibility tests use a more holistic approach to assessing how the legal problem is affecting the client’s life, and in turn, how this is affecting justice and other publicly funded services.

To ensure that disadvantaged Australians are better equipped to deal with their legal matters, the Commission stressed the important role of the government.  By providing the funding, support and broad institutional framework for the civil justice system, the report emphasized that the government is key to improving the access to justice landscape. Thus, recommendations encouraged all levels of government to work together to collect and collate information, and to develop and implement reforms in order to promote more evidence-based policy and better targeted spending, a recommendation also made in the Action Committee and CBA reports.

Overall, the Draft Report and inquiry process is worthy of our attention as it provides a new vantage from which to explore similar issues affecting access to justice in the civil justice system in Canada.

The Commission has solicited submissions and feedback on the Draft Report, which will be incorporated prior to the release of the final report in the Fall 2014.  I look forward to seeing the Commissions final recommendations then.

More information and the report can be found by visiting: