Topic 9 - Access to Justice

Welcome everyone. This is a concept lecture for low:11 to students of Charles sturt University for topic 9, which relates to access to Justice. My name is Haley, McEwen. I'm a senior lecturer with the Center for Law, and I also happen to have the privilege of working as a solicitor with a Community Legal Centre in Regional New South Wales. So access to justice is something I am deeply invested in through my practice, in this overview, I'm going to talk first lie about what access to Justice might mean, then we'll look at which groups in Australia are found to struggle to gain access to Justice, how the Commonwealth government funds legal assistance, services to respond to the demand for legal services and to introduce you to some examples of ways Services can be structured to meet the needs of vulnerable groups. So, first of all, when we talk about access to Justice, what do we mean access to justice is not just a Position or an outcome, the ability to obtain an order from a court or to enforce illegal, right? So, for some people that might be what they are looking for, in terms of what they feel is, just but it can be more than that. It's a process and a right that many of us actually take for granted. The Honorable Justice Sackville who was formerly in acting judge of the court of appeal of the Supreme Court of New South Wales and a former judge of the federal court of Australia. Is now the chair of the royal commission into violence, abuse neglect, and exploitation of people with disability. And he's quoted in your topic summary as referring to access to justice as embodying. An ideal closely related to the fundamental principle that all people should enjoy equality before the law principle that underlies Depends that ideal of the rule of law. In our society yet, this formal principle with which most would agree is that odds with the Practical reality of substantive access to justice for many in our country. So access to justice is frequently used to refer to the different mechanisms through which someone might access legal assistance, that is ensuring equality of access to Legal Services to a lawyer to lie. Information or assistance to representation and dispute resolution mechanisms. That are necessary to protect their rights and interests. A broader. Interpretation recognizes the importance of not just legal, but non-legal advocacy and support to enable someone to participate effectively in law reform and advocacy processes as well. So, in this way, access can mean the ability 82, physically, and practicably, see a lawyer to know how and what to ask for to be able to access appropriate, and accurate, Legal Information. To not just access it, but to read it, to understand it. And to be able to choose from Alternatives and act on that advice and to do so, despite constraints that one might face of distance travel transport or cost. For those living, in remote locations, access to legal advice, might realistically mean a two-month? Wait to see a fly-in. Fly-out lawyer who visits are area for two days at a time, and whose ability to advise is dependent on the availability of a suitable translator or perhaps intermittent electricity. For example, if a lawyer can't conflict check through, perhaps a laptop in a particularly remote area because they can't get stable internet or the electricity is Down and they can't charge a battery then their ability to advise on the spot. In a limited time frame can be severely limited. then when we move from access to justice, justice itself can mean many things, it can be as a foreshadowed the right to utilize our legal system, perhaps to enforce an action in court or to Affordable legal representation, or the legal and non-legal supports necessary to claim through something like a reparation scheme, a royal commission, or an inquiry, perhaps something like a victim support scheme and also things as simple as Has the right to be informed of legal outcomes relating to you see if you are a victim of violence and to have a voice in the process. For justice can represent a person's ability to take part in the legal process. But beyond that a person's ability to exercise, a right to health to education, to housing, and to civil and political participation to exercise and enjoy their civil and Equal rights. That are enshrined in many human rights instruments. So, if you think about the national agreement on closing the Gap, in Australia, it incorporates 19, socio-economic targets and outcomes, including a reduction in the over-representation of Aboriginal and Torres. Strait Islander people in the child protection system and in the criminal justice system, because we know there is a significant over incarceration of our first Nations people in criminal in the presence. And these measures which sit alongside Health economic education and other measures aimed to reduce inequality, between Aboriginal and non-aboriginal Australians and to bring about greater access to Justice. Therefore for Aboriginal people. The law and Justice Foundation, which is a substantive research body, in Australia, acknowledged in its 2003 research paper into access to Justice and legal needs that access to just as May refer to a desire for a form of Justice, which may or may not be possible through the existing legal system and therefore, it might require substantial reform of the actual system rather than merely the mechanisms for utility for you. Slicing it. So it's speaking to a need to not just provide for access to what exists but to take part in processes such as advocacy and law reform which can overturn those structural barriers that exist for many people in Australia. So who are those people who? Face structural barriers in 2017, the law Council of Australia undertook a National Review, into the state of access to Justice in Australia for people experiencing significant disadvantage. It was one of the most extensive reviews of the past 40 years and it identified 13 priority groups who faced significant social and economic disadvantage. And so often cannot access Justice in the way we expect due to systemic flaws. And gaps in Service delivery, you can read about each of these in the various chapters to the final report which are linked through your topic readings. And there are some handy infographics which are one or two-page summary's that pull out some relevant statistics and quotes from those reports to. But these 13 priority groups include people with disability people experiencing economic disadvantage, the lgbti + PR It is the people who experience discrimination and disadvantage due to their sexual orientation sex characteristics, intersex, status or gender identity, prisoners and detainees Aboriginal and Torres Strait Islander people. People who experience Family Violence. People who have been trafficked and exploited, recent arrivals to Australia, children and young people. Rural Regional, and remote Australians, Asylum, Seekers older persons, and people who are homeless importantly, many people face, multiple disadvantages due to characteristics that overlap with different parts of their identity. So to take an example, a person might be Aboriginal live in a remote area. They may be aging, they may have been imprisoned or homeless, they might have a disability and then may also face economic disadvantage amongst any of the other priority classifications they've been referred to. So therefore there are intersecting and overlapping characteristics which could place them in a priority group. The Justice report acknowledged these layers and suggested that the social impact of laws policies and practices must be better considered and evaluated by law and policy makers, by meaningfully. Engaging with the communities who will be affected the report identified key areas of law policy and practice, where reform is needed to address the systemic impacts on these vulnerable groups. Such as in the case of the cashless debit card trial, which disproportionately impacted on Aboriginal people and whether further initiatives are needed, also to overcome fundamental Justice and equality barriers such as state and territory disability. Justice plans to incorporate a focus on the needs of groups. Experiencing intersectional disadvantage, which also includes Aboriginal and Torres. Strait Islander peoples. So this brings us to a discussion of legal assistance Services, whilst there is no constitutional or common law right to free, legal representation in Australia, there are some safeguards in place to enable a trial judge to adjourn proceedings in criminal matters and have legal representation arranged where an unfair trial might otherwise result. But apart from this, right, the ideal that each person is to be treated equally. fold the law, underpins a legal system and the expectation that the government shall provide an adequately funded legal service, most of the funding that is provided by the Australian government to support the delivery of legal assistance services. To disadvantaged Australians is provided through the national legal assistance, partnership, that acronyms and lap for short. It's a five-year agreement, which channels money through the states, and territories to Legal Aid commissions Community Legal, centres Aboriginal and Torres. Strait Islander legal services and Family Violence. Prevention, Legal Services. Many of which you may not have been aware of prior to now. Stick to Advocates, have pointed out that the legal assistance sector has been chronically underfunded for years by successive governments, despite the cost benefit analyses that have shown a return on investment. So for example, a recent report from pricewaterhousecoopers that was commissioned by national legal aid. Found it for every dollar invested in Legal Aid Services. It was delivered in equivalent benefit of $2.25, in avoiding cost to individuals and government through addressing Domestic and Family Violence Disaster Response, minimizing out-of-home care and reducing the pain and suffering that results from the combination of legal issues. But we're government-funded legal services are inadequate and people cannot afford, private representation, private practitioners, often fill the Gap voluntarily by providing pro bono Legal Services, the term, the Latin term pro bono publico means for the public good. So this represents free legal services that are delivered to those who would otherwise go without legal support being a voluntary. The service, it's really up to the individual practitioner, or to their firm or legal practice to determine to whom. They provide this service and in what areas and what types of matters. There is also some flexibility in how it's delivered and how its recorded however you will see in your topic readings, a link to the Australian pro bono Center which Advocate strongly for professional. Mechanisms to be put in place around pro bono practice to ensure that it's delivered with the same professionalism as any other full fee paying client. Might expect whilst it might come as a surprise to you that many people are ineligible for legal aid, but cannot still afford a lawyer. The missing middle is a growing sector of the community that includes older persons. Those living in rural Regional and remote communities, and other groups such as All business owners and migrants key areas that give rise to unmet Legal need for the missing. Middle include areas of law regarding emergency responses, so disasters, family law Wills estate and probate elder, abuse litigation, and other complex areas of civil law, including specialized practices such as resources law, you can read the law Council of Australia's 2021 position paper on addressing the legal needs of the missing middle via topic readings, which includes suggestions for stemming, the tide such as unbundling Legal Services into discrete tasks where appropriate offering joined up services with legal and non-legal professionals such as three Health Justice, Partnerships discounted fee Services, litigation funding Arrangements offering self-help resources and ombudsman Services as alternative mechanisms to resolve disputes and even a consideration of legal, expense insurance, which is fairly new to the Australian Market. where the law Council of Australia, advocated for increased funding to Legal Assistance services, and for the support of pro bono Services, they also emphasized that pro bono should never be relied upon by governments as a replacement for an adequately funded legal assistance sector Pro bono Services after all are a voluntary commitment by private practitioners to those who cannot afford a private lawyer, increasingly firms, promote pro-bono projects as part of their Community social responsibility strategy. It has the added bonus of meeting the interests of many practitioners giving them an opportunity to step outside the work. They might otherwise do day to day and it encourages the Fulfillment of the ethical and professional values of lawyers who occupy a position of privilege. Age to give back to society through their time and skill. One of the fundamental roles of legal assistance sector services and one which I would suggest all lawyers should be alive to is to advocate for law reform and advocacy. Not only does the sector need to advocate for continuing funding of its services. But for reform of the laws and policies that unfairly impact upon their clients. As lawyers we see and he many individual stories where the law has had an unintended effect or where perhaps the legal system does not operate. Fairly there may be reasons why one individual does not want to publicly tell their story and so we can amplify their voices through our position of authority. Case studies can strongly influence law reform its be it, politicians law reform commission's or other bodies as they give an identity to a factual scenario and illustrate the way, the law and policy interacts in ways that they have not perhaps previously considered. In the last year, Community Legal centres across Australia, have prepared, Laura form, submissions on topics including raising the age of criminal responsibility immigration detention poverty. In Australia, Bushfire responses gender constitutional recognition. Coercive control sexual assault and consent Robo jet, law enforcement of illicit drugs, the Australian Charities and not-for-profits commission, Financial Counseling Services Australian, humans rights record. And this is just to name just a few, you do not need to be a lawyer to engage in law reform. And I would actively encourage you to keep an eye out for opportunities to be involved in law reform and advocacy on issues that interest you as you progress in your degree. What have we been seeing recently in the emerging legal needs in our sector, a recent advocacy Focus for the legal assistance sector that is these free legal services at a government-funded and includes the legal aid. Commission's, Community Legal centres, and Aboriginal Legal Services has arisen, due to the Run of natural disasters, impacting Coastal Regional Rural and remote areas of Australia. Events such as Al is more floods in 2022 and black summer of 2019 to 2020 in New South Wales and Victoria are having knock-on effects. Still today for individuals and communities, who have lost housing, suffered economic, and mental health effects, due to displacement to the point that the sector is upskilling in disaster preparedness, so that legal services, can respond quickly collaborative. And effectively to these events. In 2020, the Bushfire Community Legal program, was launched in South Australia, to provide free legal, help and legal education for South Australians, living in Bushfire affected areas, as a result of the black summer. By legal help, I mean face-to-face legal advice as well as phone and email assistance and Community Legal education on topics such as Wills Powers of Attorney or Advance care. Directives clearance of native, vegetation insurance, and fencing issues to support small, businesses and Community organizations as well as individuals with their Bush, fire preparedness and all response. While the service commenced in response to the 2019 2020. Bushfires it is received funding just recently to continue its work. Given the ongoing need for legal assistance and collaborative efforts to build resilience in Bushfire prone communities. Similar Disaster. Recovery models have been implemented in other states, such as the legal aid, New South Wales Disaster Response, legal service, a Statewide service, providing free legal, help to people affected by disaster and disaster, legal help Victoria, which is a collaborative project of the law Institute, Justice connect, the Federation of Community Legal centres and the Victorian bar In 2014, illegal, Australian wide law, survey was conducted to unpack legal need in Australia. And what it represents, it was a comprehensive assessment of a broad range of legal needs on a representative sample of the population. With over, twenty thousand respondents, including over 2,000 in each state, and territory, and covering 129 different types of civil Criminal, Terminal and family, law problems. It explored the nature of legal problems. How people seek to resolve those problems and particular groups? Who struggle to reach a resolution of their legal issues? What was perhaps unsurprising in the findings? Was that legal problems are prevalent and often adversely impact on many life circumstances such as housing family stability, access to Children, finances employment, and mental health, and also the survey found that disadvantaged people are especially vulnerable to legal problems. For example, those who experience sexual domestic and Family Violence are Likely to experience 10 times the number of legal problems than those who don't. What was quite surprising. However, from the survey was that many people do nothing to resolve their legal problems. At times, this might be a choice. But at other times, it's actually a consequence of a lack of choice. And most people who do resolve their legal problems, do so without using lawyers or the formal justice system. So 30 percent of survey respondents handled problems without advice and for the others. 70%. Only 33. So 1/3 of those used legal advisors the rest, consulted, government or dispute, resolution Services trade unions, or professional organizations and more frequently Health and Welfare or financial advisors So we can see that many people are more likely to seek advice from health or welfare professionals. Then from lawyers The barriers people reported to seeking legal, advice included, but they had difficulty getting through on the telephone, that it was too expensive, but the service took too long to respond. That the advice was poorly. Explained that the advisers were too far away or too hard to get to. And that many people were not aware to start with that nonprofit Legal Services existed to whom. They could go to 24 information or advice. These Trends indicate that self-help is typically not sufficient on its own for vulnerable people to resolve their legal problems, nor our technological solutions, and a better approach. Might be to provide accessible wrap around and joined up legal and Human Services, where legal and non-legal needs can be addressed holistically. So if a person struggles to understand the advice, then perhaps there can be Support Services put in place to help. Adapt that advice or to increase their understanding. This does require a significant investment of time money and infrastructure to provide a service that people can trust, which is challenging in more remote areas in particular, where local needs and broader Human Services are often thin on the ground. Nonetheless, this is the significance. There is a significant body of research that has prompted the growth of Health Justice Partnerships as a model of Legal Service. Delivery across Australia, for example, land which stands for Law. And mental health project is a project of the mid North Coast Community Legal Centre, in Northern New, South Wales, which involves embedding a civil law Community, Legal Centre solicitor within the space of community organizations such such as headspace that can provide social and clinical supports to people experiencing poor mental health. So that legal needs can be more readily identified in coordination with the clinical service providers, who know the clients story and the legal needs analysis can be done in a trauma-informed. Way, the client can easily be linked in with the service that they Trust. And two, it can save the client having to retell this story, which itself can be trauma inducing. Also, the client does not need to travel to a legal office to see a lawyer who they've never met before and having the support person from the Non-legal organization in place means that the lawyer can help reconnect or maintain contact with that client in a more effective way. Similar models have been ruled out for example, by Redfern Legal Center, in collaboration, with the local hospital and others with local dental surgery. The resulting picture of a client being referred on down the hallway, to see a solicitor about their legal rights. After a dental consultation, is a far cry from the typical scenario. One often pictures of the client entering an urban office building to see a lawyer by appointment but it's a model that works. And so is becoming more popular amongst Community Legal Services? Thank you for listening. I hope this is spark some interest in Innovation and legal service, delivery for you and I look forward to discussing more of this topic with you in our tutorials. Thank you for listening. I hope this is spark some interest in Innovation and legal service, delivery for you and I look forward to discussing more of this topic with you in our tutorials.