2009 BRAD SELWAY MEMORIAL LECTURE

'A STRATEGIC FRAMEWORK FOR ACCESS TO JUSTICE'

University of Adelaide

Wednesday, 23 September 2009

CHECK AGAINST DELIVERY

First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.

  1. I am very pleased to be here today to give this address in memory of Federal Court judge and former Solicitor-General of South Australia, the Hon. Brad Selway.
  2. Brad Selway was a widely respected lawyer and a brilliant mind who made valuable contributions to the Australian community as the Solicitor-General of South Australia and a Federal Court judge.
  3. To honour his enduring legacy, this lecture has become an important forum to discuss matters of importance to the justice system and legal profession.
  4. I am honoured to follow in the footsteps of Federal Court Chief Justice Michael Black and South Australian Chief Justice John Doyle.

Access to Justice

  1. Tonight, I would like to talk about access to justice.
  2. I have no doubt that all here tonight would regard this as one of the most pressing issues in our legal system.
  3. Not only is access to justice central to the rule of law and integral to the enjoyment of basic human rights. It is also an essential precondition to social inclusion and a critical element of a well-functioning democracy - a point well made by my labor predecessors.
  4. Labor Attorney-General Lionel Murphy, who created a national legal aid scheme, asked: “Should justice depend on the accident of poverty?”[1] We all know that is a rhetorical question.
  5. And it was my immediate Labor predecessor, Michael Lavarch who commissioned the landmark report “Access to Justice: an action plan”.
  6. In presenting the Government’s response to that report, Prime Minister Paul Keating declared:
    "If we can create a justice system which is simpler, cheaper and more accessible, we will extend our democracy and strengthen belief in it. We will increase respect for our laws and the ideas and principles on which they are based."[2]

  7. However, I would put it somewhat stronger than that; accessibility of the justice system is a precondition for the rule of law. Or expressed in reverse, a justice system which is inaccessible because it is confusing, complex and too expensive compromises not only its reputation - but its relevance.

The Concept of Access to Justice

  1. The idea of access to justice has come a long way from being simply about access to the courts and lawyers.
    While these aspects are undoubtedly important, the justice system now contains a vast array of institutions and services – courts, tribunals, legal assistance, alternative dispute resolution providers and ombudsmen.
    And many people who have a legal issue never engage with formal justice institutions and services.
  2. As former Chief Justice of the High Court, Murray Gleeson has said:
    “For most Australians, their most pressing legal need is not, and is never likely to be, advocacy in the High Court. Their need is for practical, reasonably affordable, advice and assistance in the conduct of their ordinary affairs.”[3]
  3. Accordingly, reform should focus on everyday justice, not simply the mechanics of legal institutions which people may not understand or be able to afford.
  4. We need to ensure our policies and laws work to prevent disputes from arising in the first place, through, for example, drafting clear and simple laws, providing better information, and building resilience in individuals and communities. In short, early intervention is the key.

An Empirical Basis: Supply and Demand Factors

  1. The Access to Justice Taskforce that I established early this year has sought to examine how people currently use the justice system – the demand for justice, what civil legal issues people experience, and what they do (or don’t do) about them. It then compared what options are currently ‘supplied’ to address those needs, and the cost and effectiveness of those options.
  2. And it is with great pleasure tonight that I launch the report of the Access to Justice Taskforce, and release it for discussion and debate. I encourage you all to have a look at the report. In my view, it is a comprehensive report which provides us a solid evidence basis for moving forward to improving access to justice outcomes.
  3. In terms of supply, the Taskforce found that in 2007-08, over $1 billion was spent by the Commonwealth Government in supporting the Commonwealth civil justice system – including courts, tribunals, and legal assistance providers. A little over a quarter of that amount, $280 million, was spent on legal assistance programs. The rest was spent on legal institutions. In addition, expenditure by Government agencies on legal services was over half a billion dollars during the same period.
  4. The cost to Government of providing dispute resolution services varies according to the formality and complexity of the services and institutional arrangements. As expected, courts are vastly more expensive.
  5. In 2007-08 the average cost to the Commonwealth to finalise a matter in the Federal Court was over $19,000, while the average cost to finalise a matter before the Commonwealth Ombudsman was a little more than $1,000. In terms of advice, the average cost per service of a duty lawyer was around $250, whereas the average net cost of legal information services was just $16.
  6. Proportionately, each $1 million invested into the system in 2007-08, paid for about 60 cases to be resolved by the Federal Court. But that same amount would enable:
    • nearly 1,000 matters to be resolved by the Commonwealth Ombudsman; or
    • nearly 4,000 more duty lawyer services; or
    • over 60,000 more legal information services.
  7. On the basis of such analysis, while the Taskforce concluded that our legal system is basically strong, it noted a mismatch of supply and demand. This is particularly so for people who do not have the resources to purchase access to the ‘formal’ justice system.
  8. It has also found that that information failure is a significant issue in the justice system.
  9. People often don’t understand legal events, what to do or where to seek assistance. Many are excluded from the justice system because information is complicated, or simply difficult to find. Worse still, those who mistakenly approach the ‘wrong’ area of the system feel they have been rejected by the system and often leave their problems unaddressed. In turn, unaddressed problems often escalate. The old adage of a “stitch in time” is very relevant to an effectively functioning justice system.

A Strategic Framework for Access to Justice

  1. There is no easy solution to these complex problems. They cannot be considered in isolation. It is necessary to look at the civil justice system as a whole.
  2. In the past, part of the problem has been that public policy has often dealt with these issues in isolation and in an ad hoc manner rather than looking at the civil justice system as a whole to consider what works, what doesn’t and why. The focus has also tended to be court centric.
  3. For this reason, the Government has adopted the Strategic Framework for Access to Justice, as recommended by the Taskforce. I am publicly releasing this Framework tonight.
  4. The Framework represents a point of reference that will guide future policy-making and reforms as well as decisions relating to resourcing in order to ensure an accessible justice system.
  5. The Strategic Framework is based on the principles of accessibility, appropriateness, equity, efficiency and effectiveness.
  6. The essential goals of the Framework are:
    • directing attention to the real issues that people who experience legal problems have;
    • enabling people to understand their position, the options they have and deciding what to do;
    • Intervening early to prevent legal problems from occurring and escalating;
    • Enabling matters to be directed to the most appropriate destination for resolution, irrespective of how people make contact with the system; and
    • Ensuring that the cost of and method of resolving disputes is proportionate to the issues.

Legal Assistance

  1. While the Government is shifting focus from a court centric approach, the courts have and will continue to have a central role. In that context, the Government recognises the critical role that legal assistance programs plays in helping vulnerable and disadvantaged Australians.
  2. Over the last two financial years, the Australian Government has provided $574 million for legal assistance programs. This included the injection of an additional $54 million to address immediate pressures on the system.
  3. However, as Lionel Murphy recognised when creating the national legal aid office, there is a danger of a “bottomless pit” of ever increasing costs of providing legal aid.[4] There always has been, and always will be, a finite amount of resources. As a society we cannot afford for every case to be resolved through litigation.
  4. Legal assistance providers are already strong advocates for early intervention and resolution of cases without resort to the courts. They truly engage in collaborative practice in an attempt to resolve the underlying issues behind legal problems. However, more can be done.
  5. For instance, in the area of family law a recent study by KPMG into the effectiveness of family dispute resolution services provided by legal aid commissions highlights the value of early intervention. The study strongly suggests that this arrangement has resulted in significantly more family disputes being resolved by parties reaching agreement without the need for court proceedings. The report also finds that for every dollar spent on dispute resolution services, approximately $1.48 is saved in court time and related costs.
  6. Another good example in this area was additional funding provided for the development of pilot programs to build better partnerships and greater collaboration between Family Relationship Centres and nearby Community Legal Centres and/or Legal Aid Commissions.
  7. I have been concerned to ensure that matters don’t fail to resolve because of ignorance or unrealistic expectations built on inaccurate information. The Government has therefore moved to ensure families are able to get early and targeted legal information and advice, while also accessing family dispute resolution services.
  8. Implementation of the Access to Justice Strategic Framework, such as these practical examples, will involve continued consultation and coordination between Government agencies, legal assistance and other service providers. It will, of course, also include the legal profession, courts and tribunals, and users of the justice system.
  9. This will require work, collaboration and good faith, but I have no doubt it will be worthwhile.

Other Recommendations

  1. Based on the conclusions from the analysis of supply and demand, and the resulting Strategic Framework for Access to Justice, the Access to Justice Taskforce made a number of recommendations for consideration by Government.
  2. These include:
    • Improving provision of information, including by ensuring that wherever people first approach the justice system, they are directed to the most appropriate service like an emergency “triage” ward in a hospital.
    • The need to intervene early to prevent legal problems from occurring and escalating. For example, seeking advice before signing a contract can avoid small, fixable matters (such as debt recovery) which escalate out of control.
      • >
    • Providing better pathways to fair and equitable outcomes. Where possible, the justice system should focus on resolving disputes without going to court. Where court is necessary, we need to ensure the courts are accessible, fair, affordable and simple.
    • Recovery of the costs to the taxpayer of funding courts should also be on the agenda, particularly where parties with superior resources are able to monopolise court time.
    • Ensuring that the cost of resolving disputes is proportionate to the issues. The legal profession will have a very important part to play in this. The provision of adequate information about costs is essential in assessing proportionality.
    • The need to build resilience in individuals, the community and the justice system by teaching people about the justice system and equipping people with the skills necessary to navigate life’s twists and turns should be part of civics education. Life skills such as conflict resolution and a working knowledge of legal rights and obligations are the basic tools of an engaged citizen.
  3. These recommendations will be the subject of further consultation and consideration by Government and other stakeholders. I hope that those with an interest in access to justice across all sectors and institutions will participate in this process.
  4. I understand there are copies available tonight of both the Taskforce report and Strategic Access to Justice Framework, and they are also available on my Department’s website www.ag.gov.au.

Conclusion

  1. We know that addressing matters earlier provides better justice outcomes. Addressing legal problems before matters become entrenched or escalate is both more cost effective and less traumatic.
  2. We know that actively working to resolve disputes before going to court is effective. And of course we know that for most of us, court is never an option.
  3. We also know that courts themselves can be monopolised by litigants with substantial resources, but not necessarily merit. Taxpayers have a right to ensure our public resources are used efficiently and fairly.
  4. It is now time to apply this knowledge to create a better, stronger, more accessible justice system. I look forward to constructive dialogue on this very important matter.
  5. Thank you.

[1] Lionel Murphy, ‘Why Australia Needs a Bill of Rights’, 1974, p. 5, in Jenny Hocking, Lionel Murphy: A Political Biography, Cambridge University Press, 2000, p. 174.

[2] Speech by the Hon P.J Keating MP, Prime Minister, Launch of the Justice Statement, Brisbane, 18 May 1995.

[3] (Former) Chief Justice Murray Gleeson, opening address to the National Access to Justice and Pro Bono Conference, 11 August, 2006.

[4] L Murphy, ‘Ministerial Statement: Legal Aid’, Senate, Debates, 13 December 1983, p 2800.