18 August 2008
Attorney-General Robert McClelland Interview with Deborah Cameron, 702 ABC, 8:30 am
Subjects: Access to Justice; Legal Aid.
DEBORAH CAMERON: Well, as Sally-Anne just said, just beware of the brake lights coming on in front of you.
Well now, what if you weren't quite watching, and you did go smack straight into the back of the bloke in front of you, and you ended up in court? Does the idea of that fill you with dread?
What if it was really serious and you needed to brief a QC? That might cost a couple of thousand dollars a day. Even a minor scrape with the Land and Environment Court can require a QC.
What if you just had to pay your own costs; would that be bad enough, let alone if you had a costs order against
you.
What if there was an adjournment, or a jury that just didn't listen? Possibly an appeal.
Is justice out of the reach of the middle class?
The rich will sue each other until the Stone Age - well back into the Stone Age I think is the saying. The poor have Legal Aid. But what about the middle?
The Federal Attorney General, Robert McClelland, says that he's worried about middle Australia being shut out of the legal system because of the intimidating cost; and he joins me now. Good morning.
ROBERT MCCLELLAND: Good morning.
DEBORAH CAMERON: Thank you very much for joining me this morning; in advance of a conference I think you're going to talk about some of the things you have in mind for reducing the burden.
But first of all, let's talk about the burden on the middle of Australia, with legal costs.
ROBERT MCCLELLAND: Well, yes, the situation is, if you're very rich, well you can afford access to the courts. If you're very poor you're probably going to get some very dedicated and competent Legal Aid lawyers. But if you're earning a middle income, then the prospect of litigation, as you indicated in your opening, is prohibitive.
There is a danger that access to justice will be beyond the reach of a fair whack of middle Australians. And if that occurs, then the system itself comes under strain.
DEBORAH CAMERON: What can you do about it?
ROBERT MCCLELLAND: Well, about 40 per cent of Australians, either directly or through their family, will be in contact with the Family Law system. So we're doing a substantial review of the Family Law system now to try and
work through mechanisms to resolve matters out of court.
Last year there was in fact about an 18 per cent reduction in filings because of alternative dispute resolution mechanisms. We're working on those.
We're looking at what we can do to get resources at the front end of the court to resolve matters at that stage, rather than in a trial before a judge. And we're also looking at a range of other options in terms of resourcing Legal Aid commissions, community legal centres, and also the court processes themselves, so that the party with the substantial resources can't exploit it to, if you like, bleed dry the, the poorer participant.
DEBORAH CAMERON: There's that old saying that it'll turn into a lawyers picnic. Are lawyers just simply asking too much for their services?
ROBERT MCCLELLAND: I think, the fees is one thing, but more to the point, quite often so is the teaming - the way legal firms structure, so that as soon as you walk through the door of some firms you're not seeing a competent, young lawyer, but you're seeing the prospect of a team of five, with a supervising partner and a team under them.
I think if lawyers are to charge the rates they're charging, they have to make a difference when someone walks in the door. In other words, they've got to say, well look, you've got a viable case here, or you don't have a viable case. I recommend you try and settle on this basis, as opposed to what can happen; as soon as you walk through the door they go into team or litigation mentality, and the court is where the matter ends up.
DEBORAH CAMERON: But that's like turning the whole system on its end.
I don't know how many lawyers you've met; I guess you've met a lot; and often they'll introduce themselves virtually by saying, I am a litigator, as though it is a badge of courage.
ROBERT MCCLELLAND: We do have to be careful that we don't develop a speculative legal culture that exists in the United States. All that does is clog the court system and cause everyone to pay greater insurance burdens.
It is the case however that I think the fact that lawyers have been prepared to do a lot of personal injury cases for instance on speculation, has enabled people at least who suffer a workplace injury or a car accident for instance, to usually have access to legal advice. That's one area.
But I think there's a lot we can do in other areas. For instance, senior citizens in a fight with a nursing home over one or other of the parties - the accommodation bonds, even tenancy rights - a lot of these people are simply without remedy.
And, in the case of senior Australians, it's often the case that, while they don't have a lot of cash on hand, because they do have a family home, they are disqualified from Legal Aid.
So, you do see some really grave cases of injustice.
DEBORAH CAMERON: Well what about the Legal Aid System? Is there simply a case for making it more available; the, as I understand it, the funding for Legal Aid has been cut in recent times.
ROBERT MCCLELLAND: When the Rudd Government came to office, we did confront that. When the former Labor Government left office, the federal contribution was significantly higher than the State contribution. Over the last decade the situation has been reversed.
So, we were able to get a one-off injection of funding of $7 million into the Legal Aid system, and $10 million into the community legal centres. That's a one-off to get them through this year.
There's no question we've got to look at broader structural reforms. For instance, the federal contribution can only be used for federal matters, which means a lot of the issues I've spoken about, for instance, tenancy, assisting senior citizens who may have been exploited or suffer abuse, is outside the funding authorisation of the Federal Government. We've got to look at structural changes to address those sort of issues.
DEBORAH CAMERON: The number here is 1300 222 702. What's been your experience with the courts? Are you caught in the middle? Let's find out from Geoff.
Good morning, Geoff.
CALLER GEOFF: Oh, good morning, Deborah. Look, I have a - as a practising lawyer, I'm a criminal law specialist. I practise up in Newcastle. I note that a lot of people are brought before the courts who really shouldn't be.
The police, with all of these tough on crime elections that we've had over the last decade, every second type of human behaviour seems to have been criminalised. And we find a lot of people before the courts with mental illness that are clogging up the system, that cause delays which mean that other persons who are unfortunately in the system need to come back time and time again because of adjournments because the court lists are clogged up with what I would say are improper matters, where people with mental illness are brought before the court. They really shouldn't be; they should be properly treated because we're not spending enough on mental health facilities. And the whole thing is turning into a bit of a bottleneck, and a lot of…
DEBORAH CAMERON: Thank you very much, Geoff. I'll go back to the Attorney on that.
Attorney, can you tell me first of all that question of efficiency in the courts, do you need to actually audit the way the courts are running? Are they part of the problem?
ROBERT MCCLELLAND: I think the courts themselves acknowledge that. The Federal Court, for instance, after a very big case involving Channel Seven where it's estimated that the legal costs were in the order of $200 million, has said, well look, we need some greater powers here, we need to perhaps control the number of witnesses that a party can call, the length of crossexamination, the number of expert witnesses. In other words, to avoid a situation where, if the average citizen faced a battle with a corporation, that the corporation didn't use their resources, indeed tax-deductible resources of a corporation but not the citizen, to bleed the resources of that citizen. So that, in other words, they had to fold or compromise at a level less than their proper rights.
DEBORAH CAMERON: However, I think Geoff's point was more broad. His view was that there's just a lot of unnecessary court action going on in the lower levels of the court, not just in the upper levels.
ROBERT MCCLELLAND: Certainly there's a lot of evidence that there are alternative justice models particularly involving young people - restorative justice programs, things of that nature.
There are some very good examples where looking at these alternative models have produced better results than simply locking, in particular, a young person up whereby they become more hardened criminals, are worthwhile.
I mean, those sort of things are worth looking at, but they themselves won't reduce the overall cost burden to middle Australians if they face significant litigation.
DEBORAH CAMERON: We'll take one more call.
Good morning, Lorraine.
CALLER LORRAINE: Good morning.
DEBORAH CAMERON: What's your experience with the court?
CALLER LORRAINE: Deborah, I'm a collaborative lawyer, and in fact, I was speaking with the Attorney's advisor just on Friday. You'll have to excuse me, I've got the flu.
Collaborative lawyers do not go to court, and in my view there's an awful lot that can be done both with the assistance of the government and with education of the public to assist them to realise that they really are the - responsible first for their own position, but also able to take control and work out their own resolutions with the assistance of the - of experts that they need to do that.
Our system, as it currently is, is really failing a huge number of people, and even when they get resolutions, especially in the family law area, for example, if they get a determination of the court, the amount of times that those orders will not resolve the issue and there'll be continued litigation, is immense because it's not really giving the sort of deep resolution that people need.
DEBORAH CAMERON: Thank you very much. I'll go back to the Attorney-General on that question of general dissatisfaction.
People feel that they're prolonged in this quest for justice. It's never over.
ROBERT MCCLELLAND: Oh, well, if any citizen who wasn't of substantial resources faced litigation, it would be - it's an horrendous prospect; as you say, the cost of your own lawyers - and you want to get competent lawyers, obviously - but also the prospect of legal costs.
And there's a real disparity, as I indicated. If you're a corporation, your legal fees are tax deductible, but if you're a citizen engaged in a fight with a corporation, they're not. So there's a range of structural issues that we have to, have to address.
I think in terms of your last caller, it is the case that a lot of, probably most lawyers of good will are able to provide honest and frank advice and assist their clients to resolve matters. And I think having various structures, that's one model in the family law area, but other alternative dispute resolution models, if you bring together people of good will, then everyone benefits. Whereas if people get too greedy, then they'll end up killing the golden goose.
So there's a bit of a message in that for everyone as well.
DEBORAH CAMERON: Thanks very much for your time this morning.
ROBERT MCCLELLAND: That's a pleasure.
DEBORAH CAMERON: The Federal Attorney-General, Robert McClelland.
ENDS
