PC News - August 2014
Access to justice arrangements
A number of barriers prevent Australians from resolving civil disputes in a timely and affordable way. Wide ranging reforms recommended in a recent Commission draft report have the potential to improve both the visibility and accessibility of the various avenues available to people to resolve their disputes.A well-functioning civil justice system underpins social cohesion and economic activity. Addressing concerns that accessing justice is too slow, too expensive and too adversarial can better facilitate the efficient and fair resolution of civil disputes, thereby enhancing community wellbeing.
The Australian Government has asked the Productivity Commission to undertake a broad ranging inquiry into Australia's system of civil dispute resolution with a focus on constraining costs, and promoting access to justice and equality before the law. Key themes of the Commission's draft report, released in April 2014, are outlined below. A final report will be sent to Government in September 2014.
Civil disputes are relatively common
According to the most recent comprehensive survey of legal need, close to half of respondents experienced one or more civil legal problems in a 12 month period. The most prevalent civil problems related to consumer matters, housing disputes and dealing with different levels of government (figure 1).
Many disputes experienced by individuals were substantial in nature. More than half of respondents who experienced at least one civil legal problem, considered the problem had a 'severe' or 'moderate' impact on their everyday life. Family disputes, including disputes relating to child custody and maintenance, were more likely to be considered substantial.
Parties to disputes encounter similar problems
Many people have difficulty identifying whether their problem has a legal dimension and what action to take. Information services are a simple and effective way to assist people to resolve disputes informally, and seek more formal advice if required. Such services should enable people to resolve their legal problems, if they have the capacity and are provided with appropriate information and some direction.
Big potential gains from early and informal solutions
Parties have at their disposal an increasing number of low cost and timely informal mechanisms to help resolve disputes. Better directing people to ombudsmen and other informal dispute resolution bodies could significantly reduce the level of unmet legal need, but these bodies need to be more visible to those who might require their services.
Some alternative dispute resolution techniques have proven an efficient and effective way to resolve disputes. There appears to be greater scope for the use of alternative dispute resolution in court and tribunal processes, government disputes and private disputes. Litigation should remain an option if settlement cannot be reached.
When disputes cannot be resolved independently and consumers opt to seek formal legal advice, they find it hard to compare practitioners, different billing arrangements and service offerings. In addition, the complicated nature of many legal services means that consumers find it difficult to judge the quality of the services both before and after they receive them. Avenues to allow consumers to make more informed choices and enhanced regulatory oversight of the legal profession have the potential to improve outcomes.
Court and tribunal processes can be improved
Governments, in granting courts and tribunals exclusive jurisdiction over some activities, have a responsibility to ensure these institutions operate as efficiently and effectively as possible.
The adversarial behaviour of parties can run counter to these objectives — hindering the resolution of disputes or even exacerbating them. Such behaviour can be addressed by subjecting parties and their lawyers to requirements that facilitate the swift, proportionate and just resolution of disputes. Greater use of targeted pre-action protocols — the rules that govern legal manoeuvrings that occur before a trial — accompanied by strong judicial oversight, can help resolve disputes early or narrow the range of issues in dispute. Reforming cost awards can also provide another mechanism for deterring parties from incurring unnecessary or disproportionate legal costs.
Well-targeted and appropriately employed case management can yield significant benefits in terms of improved efficiency and reduced cost and delay. Courts in all Australian jurisdictions have either initiated, or been the subject of, substantial reforms that have moved towards more active judicial management of cases. Progress has been uneven across jurisdictions and arguably court processes do not yet sufficiently ensure that unnecessary costs and delays are avoided.
Reforms to other court processes, including rules around discovery and expert witnesses, also have the potential to improve the efficiency of court based dispute resolution. Courts and tribunals would also benefit from greater investment in technology.
Legal assistance for disadvantaged people
Disadvantaged people face a number of barriers, which mean they are both more susceptible to and less equipped to deal with legal disputes. If left unresolved, civil problems can have a substantial impact on the lives of the most vulnerable. Governments have a role in providing legal assistance services to these individuals to help them to uphold their legal rights and resolve their civil disputes.
The capacity of legal assistance providers to assist disadvantaged Australians is constrained by a range of factors, many of which stem from the way in which these services are funded. A number of approaches for improving funding arrangements — including addressing the funding tensions between the civil and criminal systems and better distributing funds in line with civil legal need — are explored.
Eligibility tests for casework services currently vary between legal assistance providers. Financial eligibility criteria for these services should be consistent across providers and linked to an established measure of disadvantage. This would make tests more equitable and transparent.
Reallocating funding towards higher priority areas alone will be insufficient to meet the civil legal needs of disadvantaged Australians — absent additional resources service gaps will remain.
Aboriginal and Torres Strait Islander people often have complex legal needs and face sizable barriers in accessing legal services. As a result, many civil disputes go unresolved, which can lead to larger and more complex legal problems. While there are good grounds for tailored legal assistance services, reforms are warranted to who funds services, how funds are distributed, and 'back of house' operations to improve efficiency and effectiveness.
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Figure 1 Composition of legal problems faced by Australians
Source: Coumarelos, C., Macourt, D., People, J., McDonald, H.M., Wei, Z., Iriana, R. and Ramsey, S. 2012, Legal Australia-Wide Survey: Legal Need in Australia, August, Law and Justice Foundation of NSW, Sydney.
Access to justice: Summary of the Commission's main draft recommendations
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Improving the experience of consumers
Jurisdictions should have a centralised source for consumers to access information, basic advice and referrals so they better understand whether they have a legal problem and what their options are.
A central online portal should be made available within each jurisdiction, which provides consumers with information on typical prices for a range of legal services.
Legal service providers should ensure that consumers understand billing information and are informed when additional services are required.
Governments and industry should raise the awareness of ombudsmen services to promote these relatively low-cost dispute resolution options.
Governments should develop a single set of rules to offer consumers the option of purchasing unbundled legal assistance.
Reforming court and tribunal operations
Tribunals should enforce processes to facilitate the fair, economical, informal and quick resolution of disputes. Restrictions on legal representation should be more rigorously applied.
Courts should examine their processes to ensure that they are consistent with leading practice in relation to case management, case allocation, discovery and use of expert witnesses.
Cost awards should be reformed — lower-tier courts should introduce fixed, activity-based scales while higher-tier courts should introduce processes for cost management and capping.
Court and tribunal fees should be set to recover a higher proportion of costs and take into account the characteristics of the parties and the dispute. Fee waivers should be provided to disadvantaged litigants.
Addressing power imbalances
More effort is needed to ensure that model litigant guidelines are adhered to by governments and their agencies.
While remaining impartial, judges and court staff should better assist self-represented litigants, including through the development of plain language forms and guides which clearly outline time-critical events.
Private sources of funding are important
Governments should remove the restriction for most civil matters on calculating lawyers' fees as an agreed share of the amount recovered through legal action.
Litigation funders should be regulated as licensed financial service providers and subject to ethical standards and appropriate monitoring.
Improving legal assistance services
Governments should 'earmark' a specified amount of legal assistance funding for civil matters.
Eligibility for grants of legal aid should take into account the client's circumstances and the impact of the legal problem on the client and the community more broadly.
The Community Legal Services Program funding model should be more responsive to legal need and resources should be reallocated accordingly.
Funding for Family Violence Prevention Legal Services for Aboriginal and Torres Strait Islander people should be allocated to areas of 'highest need' and the funding allocation model revised to reflect differences in need and service cost across geographic areas.
Access to Justice Arrangements
- Read the Draft Report released April 2014