Laws affect us all. They affect much of what we do; from the moment, we have breakfast until the moment we sleep at night. Laws and regulations affect the quality of what we eat the safety of our streets, our workplace conditions, the buildings we live in or rent and our access to essential services. The rule of law, a fundamental condition for democracy requires, that the law is applied equally and fairly, so that no one is above the law and that the law is capable of being known to everyone, so that everyone can comply. Access to legal advice and confidence in the laws administration are key elements of adherence to the Rule of Law.
On 30 April 2016 the Federal Government released its long overdue ‘response’ to the Productivity Commission’s (PC) Final Report on ‘Access to Justice’ in the pre-budget discourse and the election flurry so that its late response was buried. To clarify, for those in different jurisdictions, the PC is a statutory body set up by the Parliament of Australia as the Australian Government's independent research and advisory body on a range of economic, social and environmental issues affecting the welfare of Australians. It is considered locally as quite conservative in its approach. This is why its recommendations highlighting the barriers to access to justice were salutary. The PC’s report tabled in September 2015 consisting of 968 pages and 24 recommendations (each had sub points making up further recommendations).[i] In excess of 364 submissions were received and there were public hearings. Many resource stretched agencies took time to write submissions and compiled significant numbers of case studies from clients. The Government’s ‘response’ was only seven pages long. In effect the PCs seminal report has fallen on deaf ears. Why is this important?
For some, from lower-socio economic contexts government policies and laws affect every element of life from income security to the habitable condition of public housing provided by government, access to health services and their pension. In Australia, this group is 70 times less wealthy than someone in the highest wealth group.[ii] They have little choice, fewer options and limited income is mainly spent on essentials with often little or nothing to spare. Often they have not had consistent schooling, experience multiple problems and barriers. This has not only been detailed in a number of recent empirical studies in Australia but was a significant finding of the Productivity Commission’s (PC) Final Report on ‘Access to Justice’. The legal system assumes knowledge of the processes, knowledge of the law and legal rights and confidence to take action which is often absent for these groups.[iii] We rarely see governments thinking carefully before enacting laws and being accountable. It is left to community agencies like legal assistance services and those of us undertaking evidence based research to try to relay client experiences.
Recent empirical research reveals the disadvantage have not only one legal problem but multiple legal problems often because they have multiple disadvantages and complex needs e.g. poor health, disability or victims of family violence. Only 13-16% of these groups are likely to seek or find legal help. There are some new innovations which see lawyers in multi-disciplinary practices where the poorest are most likely to turn. Many of these initiatives initially not funded by government, are evaluated as effective, and find difficulty gaining ongoing funding. [iv] When you reduce funding for a service already stretched and which already relies heavily on volunteers, even a small cut can have a significant impact on services.
Cuts to funding of legal assistance service (who help the most disadvantaged) are estimated to see 160,000 people turned away from service as nationally. Some services have already closed their regional offices, limited their court and other support services. In a context of limited resources some are adopting strategic approaches resulting in real changes, going beyond the immediate client's problem and reforming the system to prevent further cases improving the administration of codes of conduct and regulation to better protect citizen’s rights.[v] As acknowledged by the PC in its report[vi], these effective, targeted initiatives see efficient outcomes, improvements in practice, save money and also assist individual clients with their problems as well as groups of clients with the same issues recurring but they are not a replacement for individual cases with people represented and receiving early advice.
There was expectation after the PC Report that Government would better understand the barriers to justice and adopt the considered, practical recommendations. However, the government’s response, is heavy on rhetoric, light on substance when matched against the actual recommendations and ignores most. The PC’s calls for the separation out of ideology from funding, more connectedness between government and those who deliver the services informed by independent research and involvement of legal services in systemic reform (something the Commonwealth has actively discouraged and is sticking to in its funding and service agreements[vii]). All are ignored including the PC recommendation for an injection of $200 million into the sector. In 2017 the real cuts kick in.
Don Watson in describing the decay of public language in his book ‘Death Sentence’[viii] cautions about ‘weasel words’: sly words that do not mean what they appear to … It is not a language for serious inquiry or explanation, or even thinking.’ For example, of obfuscation using ‘weasel words’, in response to PC recommendation 12.1 asking for ‘just, quick and cheap resolution of disputes’ the Government states, ‘The question of compliance with Directions, including the Model Litigant Obligations is a matter between the Attorney General and the relevant Commonwealth agency…. where an individual is unhappy with the handling of a compliant by an agency, they may seek review by the Commonwealth Ombudsman.’ The Government states it’s a matter for government agencies and if individuals are unhappy it’s up to them to take it further completely ignoring the detail in the PC Report about barriers to the public doing so and problems inherent in government agency handling of matters that are impediments to justice.
I am astounded by the Federal Government’s lack of genuine response to the Productivity Commission as an expert academic/practitioner who has delivered services to some of the most vulnerable for two decades and having provided evidence -based data and literature to this Inquiry which was cited heavily in the PC report. The Government’s response ignores the reality of a difficult to navigate legal system. It ignores barriers and continues to deny resources that enable innovation and enhanced responsiveness to the most excluded.
[i] Productivity Commission Inquiry into Access to Justice Arrangements Report, No 72, 5 September 2014, Australian Government, Canberra, http://www.pc.gov.au/inquiries/completed/access-justice/report
[ii] ACOSS, (2016) ‘Inequality in Australia’, http://www.acoss.org.au/wp-content/uploads/2015/06/ACOSS-POVERTY-IN-AUSTRALIA-FACT-SHEET_FINAL-WEB-July-7-2015.pdf accessed 27 May 2016.
[iii] Coumarelos, C., MacCourt, D., People, J. McDonald, H.M., Wei, Z., Iriana, R. & Ramsey, S. (2012) Access to Justice and Legal Needs: Legal Australia Wide Survey Legal Need in Australia’, (Sydney, Law and Justice Foundation of New South Wales). Available at: http://www.lawfoundation.net.au/ljf/site/templates /LAW_AUS/$file/ LAW_Survey_Australia.pdf, accessed 10 June 2014 & Curran L and Noone M (2008)‘Access to Justice: A new approach using human rights standards’ International Journal of the Legal Profession, Vol 15 (3) pp 195-229.
[iv] Curran, L (2015), ‘Holistic approaches to reaching and assisting clients experiencing vulnerability or disadvantage - Health Justice Partnerships in Australia and beyond – with a focus on the emerging value of secondary consultations’, International Legal Aid Group Conference, Scotland, Conference paper June 2015. http://www.internationallegalaidgroup.org/index.php?option=com_content&view=article&id=180:2015-session-papers&catid=2:uncategorised&Itemid=101 ; L Gyorki (2013) ‘Breaking Down the Silos: Overcoming the Practical and Ethical Barriers of Integrating Legal Assistance into a Healthcare Setting’, Inner Melbourne Community legal centre and The Churchill Trust Fellowship, (https://www.churchilltrust.com.au/media/fellows/Breaking_down_the_silos_L_Gyorki_2013.pdf) accessed 26 May 2016 and Curran L, (2015) ‘Why Didn’t You Ask?’ – Evaluation of the Family Violence Project of Loddon Campaspe Community Legal Community Legal Centre’, Loddon- Campaspe Community legal centre and the Legal Service Board.
[v] Curran L (2013). The Strategic Approach to Legal Problem Solving problems –: Examples, processes & strategies, Consumer Action Law Centre, Footscray Community Legal Service & ANU Legal Workshop, Australian National University College of Law, http://www.plelearningexchange.ca/database/solving-problems-strategic-approach-examples-processes-strategies/ and http://consumeraction.org.au/new-report-solving-problems-a-strategic-approach/ accessed 27 May 2016
[vi] Above note i, Volume 2, 696-700.
[vii] L Curran, ‘Attorney General George Brandis Set to Silence CLCs’ The Saturday Paper, 14 June 2014 https://www.thesaturdaypaper.com.au/opinion/topic/2014/06/14/attorney-general-george-brandis-set-silence-clcs/1402668000 accessed 27 May 2016.
[viii] Watson D, (2003) ‘Death Sentence: The Decay of Public Language’, Knopf, Random House, NSW, 22.