Access to Justice

Queensland Bar Association

Annual Conference 2018

I would like to commence, as I always do, by acknowledging the traditional owners of the lands on which we meet, the Turrbal people, and by paying my respects to their Elders past and present and acknowledging their continuing stewardship of these lands.

I am greatly honoured to have been invited to address this annual conference of the Queensland Bar Association and thank the Queensland Bar for its generous hospitality. The welcome I have received on this and my more recent visits to Brisbane has been significantly warmer than the reception I received when I came to Brisbane to appear in the Federal Court after my appointment as Chief Justice of Western Australia had been announced, but before I took up that appointment. An injunction was sought to restrain me from appearing. I was lucky enough to receive the benefit of the services of Walter Sofronoff QC, as his Honour then was, and Justice Greenwood refused the injunction in a decision which is now regarded as defining what can and what cannot be done between announcement and judicial appointment. But I digress.

Access to Justice

In the period of almost 12 years since my appointment, I have delivered more than 15 public addresses on the subject of access to justice and related topics, and spilt ink over almost 400 pages dealing with the same topic.1 I do not mention these figures in order to boast of prolixity or circumlocution, or to reveal an indecent obsession with the topic but rather to provide tangible evidence of how important I regard the topic which has been chosen for your conference.

Access to Justice – meaning

The expression ‘access to justice’ is used by a wide variety of people in a wide variety of contexts in order to convey a wide variety of different meanings. The expression can be, and is, used in at least four different contexts. The first is in the context of the civil justice system where the emphasis is on the word ‘access’ and in particular upon the many barriers to access experienced by many Australians. Next, in the criminal justice context, the emphasis is more on the word ‘justice’ than upon access, and the issues connoted relate more to the extent to which the criminal justice system discriminates against or differentially treats different groups within our community, including different ethnic and cultural groupings, women, those with differing sexual orientations, those with mental illness or disability and so on.

The third area in which the expression is sometimes used relates to public engagement with the justice system. In that context, the expression encompasses issues with respect to transparency and comprehensibility.

The fourth context in which the expression is sometimes used arises from the increasingly multicultural characteristic of the Australian population. In that context, the expression relates to the extent to which cultural and linguistic barriers impede meaningful access to the justice system for a significant proportion of our population.

Access to Civil Justice

In this paper I will address only the first context I have identified – namely the context of access to civil justice. This is not to suggest that the other contexts in which the expression is used are any less important – to the contrary, I have spoken and written at length about access to justice in each of these areas.2 Rather, my selection has been made because of limitations of time and space.

It should not be thought that there is anything novel about barriers to access to civil justice. More than 100 years ago, in 1906, Professor Roscoe Pound, the Dean of Harvard Law School, published a paper entitled ‘The Causes of Popular Dissatisfaction with the Administration of Justice’.3 The opening sentence of his treatise was:

Dissatisfaction with the administration of justice is as old as law itself.

He wrote then of the three major barriers to access in the civil justice system – namely, cost, delay and complexity- which remain the major barriers to access. They were also central to Charles Dickens’ withering description of the Court of Chancery in the 19th century in Bleak House.4

Some Tortured Metaphors

The Rolls Royce

Over the years I have tortured a number of metaphors in an attempt to create an image of the barriers to access in the civil justice system. I have described that system as analogous to a Rolls Royce, because it is the best system money – a lot of money – can buy. It is very good at leaving no stone unturned in gathering evidence or potential evidence, and in allowing every legal issue – good, bad or indifferent – to be ventilated and determined. But if you cannot afford that degree of luxury, it is a bit like owning a Rolls Royce when you cannot afford to put the petrol in it. You can admire it, boast about it, polish it, take pride in its ownership and show it to people, but you cannot use it to perform its fundamental function, which is to take you from one place to another.

The Club Sandwich Class

Another metaphor I have used arises from the fact that the greatest barriers to access in Australia are faced by those who are neither very rich nor very poor. The very rich can afford legal representation. The very poor, if charged with a serious criminal offence, will be given legal aid. In very restricted circumstances, those with limited financial means may be assisted in civil matters, but the assistance is largely limited to family disputes. The group in between these two economic extremes has been described as ‘the sandwich class’, but, in fact because the group represents a significant majority of Australians, I think is more accurately described as the ‘club sandwich class’.

Unmet Legal Need

The Legal Australia-Wide Survey5 has provided very important information with respect to the extent of unmet legal need. The survey revealed that 50% of Australians aged 15 years and over need legal help every year.6 Some 22% of those surveyed across Australia experienced three or more legal problems within the past 12 months.7 The Indigenous Legal Needs Project has also demonstrated that access to legal assistance for Indigenous Australians is particularly limited.8  The Centre of Innovative Justice at RMIT University in Melbourne has also provided very important information with respect to unmet legal need in Australia in a report published in 2013.9 Drawing upon these various sources of information helps us to identify the major areas of unmet legal need, other than in criminal law. The areas in which unresolved legal problems commonly arise include:

• Family law;
• Employment law;
• Personal injury law;
• Consumer rights law;
• Welfare law;
• Housing and tenancy law; and
• Migration law.

It will immediately be observed that these areas of legal need correspond closely to activities and characteristics that are at the very core of our human existence including our familial relationships, employment, the capacity to reside in the country of our choice, the dwelling in which we live and the wherewithal we need to put food on the table.

Is the legal profession greedy?

There is a very common view to the effect that the reason there is such a gap between legal need and legal service delivery is the greed of the legal profession. That view is influenced by the perception that mega-firms charging extraordinary hourly rates housed in opulent buildings with marble foyers on floors which are so high they offer panoramic views to New Zealand, with white-coated baristas offering quality coffee to all clients are characteristic of the legal profession as a whole, and that high flying commercial barristers are characteristic of the bar as a whole. The authors of the RMIT report to which I have just referred analysed how closely those images correspond to reality. They found that of the lawyers working in Australia, those employed in large firms or who were partners in large firms represent about 20% of the private profession; those working in partnerships with two to four partners another 20%; sole practitioners 37%; barristers 5% and of the barristers, Senior Counsel are about 20% of the bar or 1% of the legal profession. The reality is that more than half of the lawyers working in Australia today operate in practices the size of which suggest that they are aiming to provide services for that ‘club sandwich class’ or what might be called middle Australia. The reality is that the cost of their services still places them out of the reach of a lot of people within that class. I will come back to the reasons for that later in this address.

The Rule of Law

Of course, these barriers to access, and large areas of unmet legal need, have serious implications for a society which takes pride in being governed by the rule of law. The rule of law becomes an abstract concept of no practical utility to the significant proportion of our population which has no meaningful access to the civil courts in order to enforce legal rights and obligations.

Attempts to Breach the Gap

Various mechanisms have evolved in an attempt to breach the yawning gap between the need for legal services and the capacity of those in need to afford those services. In the following section I will briefly review those mechanisms.

Legal Aid

The legal aid commissions, Aboriginal legal services, and family violence services around Australia do their best with the limited resources made available to them. However, those resources are meagre and in real terms appear to be diminishing over time, notwithstanding recommendations from the Productivity Commission and the Law Council of Australia proposing increases in annual funding of $200 million.10 Government expenditure on legal aid in Australia, assessed per capita, is a fraction of that spent in the United Kingdom.11 The net result is that generally speaking, legal aid is only available in serious criminal matters and a relatively small proportion of family law matters. Apart from those family law cases, legal aid is generally unavailable for civil cases.

Community Legal Centres

Community legal centres provide a vital first port of call for those who have a legal problem and no other means of finding a solution to that problem. They are located within, accessible to, and responsive to the needs of the communities which they serve. Prevention, in the form of community education with respect to steps and practices which can be taken to avoid disputes in the first place, and early intervention to prevent disputes from escalating are, in my view, vital aspects of any strategy to reduce the extent of unmet legal need. CLCs are very well placed to implement these components of such a strategy. However, they have also been subjected to significant funding constraints and have been forced to rely increasingly upon the services of volunteers, some of whom lack legal training.

Pro Bono Services

Estimates of the amount of pro bono services provided by the legal profession around Australia vary, although all estimates show that contribution to be significant. A recent report from The Australian Pro Bono Centre estimated that between 2007 and 2017 Australian lawyers gave almost three million pro bono hours of service to the community (which equates to at least 35 hours – or one week – per lawyer), with just over 420, 000 of those hours being provided in the 2016-7 financial year.12  The provision of these services is, of course, laudable, and it is regrettable that their provision goes largely unsung. However, the magnitude of unmet legal need in Australia is such that pro bono services are never likely to make a significant reduction in its extent.

Litigation Funding

The commercial market in litigation funding has grown in extent and diversity over the last 20 years or so. However, the business models for commercial funders generally result in them mainly being interested in very substantial cases and class actions – usually on behalf of shareholders or investors. Unless the damages awarded are likely to be sufficient to generate the margins which their business models require to enable them to trade profitably, they will not become involved. I do not mean to suggest that litigation funding is not a significant component of the mechanisms which do reduce the extent of unmet legal need, but, as with pro bono services, the extent of the reduction which litigation funding brings about will be constrained by the realities I have identified.

Legal Assistance Funds

In some jurisdictions, funds have been set up, from a variety of sources, which provide funding for legal expenses incurred in a limited number of cases, on the basis that the funds will be replenished from successful outcomes in those cases. Because the size of the funds are relatively modest, the number of cases which are funded is equally modest.

Legal Expenses Insurance

There are a number of types of legal expenses insurance available in different parts of the world including, to a somewhat limited extent, Australia. The systems can be classified in the following way:

(a) add on cover;

(b) pre-paid legal expenses;

(c) stand-alone cover;

(d) after the event insurance.

Add on Cover

This type of cover is provided as an add on to a policy primarily provided for another purpose – such as a household policy or a motor vehicle policy. The policies provide cover for legal expenses incurred as a result of, for example, a motor vehicle accident or an occupier’s liability claim against a householder.

Pre-paid Legal Expenses

Under these schemes, an organisation such as a union will make an arrangement with a law firm for the provision of legal services which are paid for by the first organisation. So, for example, legal advice might be provided to union members in relation to specified areas of law – such as, for example, personal injury. Although there have been schemes of this kind operating successfully in Australia, their impact is limited.

Stand Alone Cover

Under these policies, cover for legal expenses can be provided in return for a premium in advance of the need for legal advice arising. A scheme of this kind operated in New South Wales between 1987 and 1995, although it ultimately closed. One of the economic difficulties for such schemes is that the people who take out cover are likely to be the people who are at significantly higher risk of needing legal advice, thus jeopardising the financial stability of schemes of this kind. However, insurance of this kind has proved successful elsewhere – for example, in Germany millions of policies of this kind are written each year, and cover of this kind is also widely utilised in the United States. However, the types of legal issues for which advice is covered by the policy are often quite limited.

After the Event Legal Expense Insurance

This type of insurance is prominent in the United Kingdom. When litigation is commenced, the policy will be taken out to cover the cost of the legal services involved in conducting the litigation. The premium will customarily be about 40% of the anticipated expenses. If the litigation is unsuccessful, the insurer will pay the legal fees and, under some policies, also any costs order made against the insured. In the United Kingdom these schemes are often written by the solicitors themselves as agents for the insurers. In commercial terms they perform a function which is not dissimilar to litigation funding.

Legibank

From time to time, universal legal expenses schemes, funded by government, have been mooted – a kind of ‘Legibank’ or ‘Legicare’ if you like. Given diminishing government enthusiasm for funding legal aid and CLCs, there is no prospect that any such scheme would ever get off the ground in Australia.

Fee Uplift Schemes and Contingency Schemes

In Australia, schemes under which a lawyer takes a percentage of the return from the litigation by way of a fee are generally unlawful. However, variants on this type of funding arrangement, such as fee uplift schemes, under which the practitioner agrees that in the event that the case is lost, no fee will be rendered, but in the event the case is won, the fee rendered will be a multiple of the fee normally charged, are acceptable in a number of jurisdictions. These schemes appear to me to be preferable to the contingency arrangements of the kind that operate in the United States, in that the practitioner’s reward for success is determined by reference to the amount of work done – that is to say, the extent of the commercial risk borne by the practitioner, rather than by reference to the proceeds of the litigation. However, the Productivity Commission and the Victorian Law Reform Commission have each recommended that consideration be given to lifting the prohibition on contingency fees, subject to conditions. In Australia, no win no fee arrangements are relatively common in relation to personal injury claims, but have not made a significant contribution to meeting unmet legal need in other areas.

Continued…

Read full article

Wayne Martin AC

Chief Justice of Western Australia 

Footnotes 

1. Which are published on the website of the Supreme Court of Western Australia,  www.supremecourt.wa.gov.au  (accessed 23 February 2018).
2. In various papers published on the website of the Supreme Court of Western Australia, www.supremecourt.wa.gov.au (accessed 23 February 2018).
3. Presented at the annual convention of the American Bar Association in 1906.
4. Dickens C, Bleak House (Bradbury & Evans, 1852-1853).
5. Coumarelos C, Macourt D, People J, McDonald HM, Wei J, Iriana R and Ramsay S, Legal Australia-Wide Survey: Legal Needs in Australia (Law and Justice Foundation of New South Wales, August 2012) LAW_Survey_Australia.pdf (accessed 26 February 2018).
6. Ibid xiv, 59 and 161.
7. Ibid xiv and 59.
8. The Indigenous Legal Needs Project was a national research project conducted from 2012-2014 to identify the non-criminal legal needs of Indigenous Australians, and to provide an understanding as to how legal services may work more effectively to address the identified needs. The project culminated in reports for each state, such as Allison F, Schwartz M and Cunneen C, The Civil and Family Law Needs of Indigenous People in Western Australia (James Cook University, 2014) www.jcu.edu.au/indigenous-legal-needs-project/resources/ilnp-reports-and-papers (accessed 26 February 2018).
9. Centre for Innovative Justice, Affordable Justice – A Pragmatic Path to Greater Flexibility and Access in the Private Legal Services Market (RMIT University, October 2013)http://mams.rmit.edu.au/qr7u4uejwols1.pdf  (accessed 26 February 2018).
10. Law Council of Australia, 2018-2019 Pre-Budget Submission (31 January 2018); Productivity Commission, Access to Justice Arrangements (December 2014).
11. Timms P, Legal Aid Matters: Lack of Government Funding ‘Destroying Lives’ Law Council Says (ABC News, 16 May 2016) http://www.abc.net.au/news/2016-05-16/law-council-of-australia-  launches-legal-aid-matters-campaign/7417094> (accessed 26 February 2018). 
12. Australian Pro Bono Centre, 10th Annual Performance Report of the National Pro Bono Aspirational Target (October 2017).