Rethinking the delivery of law
Monday, December 10, 2018
Justinian in Justice reform, Law Council of Australia, Peach Melba

Justice Project largely overlooked by the media ... A legal system in need of change at every level ... LCA report urges a "holistic", multi-disciplinary approach ... Identifying potential legal problems before they take hold ... Justice Impact Tests ... Peach Melba on the case 

The official release of the Law Council of Australia's Justice Project Final Report at Parliament House in Canberra unfortunately coincided with Libspill week. 

As such, the report went largely undetected by the media, which is a shame because at nearly 1,500 pages it offers a significant study into access to justice in Australia.  

A steering committee led by former High Court Chief Justice Robert French spent nearly two years compiling the report and formulating recommendations. 

The focus is on "lived experience" - the practical barriers to accessing justice for people in circumstances of social and economic disadvantage. The report also identifies initiatives that promote access, such as Health-Justice Partnerships. 

The work is an important resource, not just as an educational tool for government and practitioners, but because the evidence it presents can be used to inform advocacy. 

It's well-known that there is unmet legal need in Australia, but the report identifies that chronic underfunding of legal services has put lower courts in a condition of such "chaos and congestion" that their capacity is precipitously close to crisis point. 

Some of the problems are basic - such as people failing to recognise that they have a legal issue at all: debts, victims of elder abuse or family violence, disability, and people living in rural, remote and regional Australia who might be unable to access lawyers.  

Survivors of human trafficking who are exploited by employers might not seek out legal advice because they fear losing their job or being deported.

Shockingly, the report reveals that "one public legal assistance service in regional Western Australia covers a geographical area more than twice the size of the United Kingdom, with only one solicitor". 

There are less obvious reasons why legal services buckle and cannot assist all who need them. For instance, the report notes that a change in government policy or systems can create an unforeseen stream of legal consequences. 

The Centrelink Robodebt scheme, an automated program which sent incorrect debt recovery notices to 20,000 people, is one policy which placed immediate and unexpected pressure on community legal services. 

Individuals who are unable to receive community legal services invariably self-represent, reducing the efficiency of the courts and jeopardising an individuals' substantive rights.

Some laws and policies particularly impact on marginalised groups. When an individual cannot receive appropriate legal services to resolve their legal problems when they arise, downstream ramifications compound their economic and social disadvantage. 

Then there is the effect of unmanaged legal issues on the wider community: putting pressure on public services such as health, housing, social welfare, child protection and criminal justice. 

The Law Council concludes that government investment in legal services, including early intervention programs, to promote access to justice would have the long-term benefit of reducing costs to the community.

Identifying legal and non-legal issues as interdependent, the report recommends collaboration between lawyers and non-legal service providers. 

One example would be co-locating disability support services with Aboriginal legal aid. There is significant practical benefit if practitioners and lawyers can identify need and refer individuals to services in the same physical space. 

Community-managed, multidisciplinary partnerships that are culturally specific and sensitive to trauma will be more successful at resolving legal issues with finality because they take into account the needs of different client bases. 

Increasingly, we see this with medical practices that provide a range of different health services within the one facility. 

The research indicates that if left unresolved civil law issues can escalate into criminal matters, so the report suggests that investment in services for civil law should not be overlooked in favour of criminal advice. 

The LCA work identifies the need for rethinking our legal system at every level, including funding models and providing a "holistic" approach to legal practice that manages non-legal needs as well. 

One of the recommendations is the abolition of restrictions on policy advocacy and law reform work by community legal centres that receive Commonwealth funding. 

The Law Council found that Australia's history of violence and systemic discrimination against Indigenous peoples means Aboriginal and Torres Strait Islander communities have a "profound and ongoing distrust" of the formal legal system. 

Building trust would require removing laws and policies that disproportionately affect Aboriginal and Torres Strait Islander people, such as Western Australia's regime of imprisonment for fine defaulters. 

The report advocates that governments develop a culture of considering how laws and policies will affect access to justice. The media did take note of one of the most ground-breaking of the Justice Project's recommendations - "Justice Impact Tests", which already are a mandatory mechanism for government policy in the United Kingdom. 

Justice Impact Tests would require policy-makers to engage in two related assessments: how different laws, policies and funding models in the justice system interact to assuage or increase disadvantage; and the social impact of new laws and policies, from the very early stages of their development.

From Elif Sekercioglu in Melbourne 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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