Access to Justice: An investment with a good rate of return – By Zoe Lewis

ACCESS TO JUSTICE: AN INVESTMENT WITH A GOOD RATE OF RETURN

ZOE LEWIS

What does access to justice even mean? It doesn’t just mean being able to afford a lawyer and court filing fees (although financial barriers can obviously be very significant).

It is also about access to information early on to help avoid the need for lawyers and court applications in the first place.

It is about legal services that are physically accessible, culturally appropriate, delivered by someone who understands trauma and mental illness if those are challenges faced by the person needing the services. It is also about being able to access the legal help at the right time – needing to wait two weeks for a free appointment somewhere might mean the person misses out on the information when they could have best utilised it.

Many services strive to provide access to justice but this system can be difficult to navigate. As services gain and lose funding, they necessarily change the scope of the services they offer, and their capacity to take on new clients fluctuates.

The legal aid scheme provides invaluable assistance to many people facing criminal or family law matters in particular.1 But many people won’t qualify.2 For example, if someone isn’t facing a period of imprisonment for their criminal charges, they may be facing other lifechanging consequences, such as loss of driver’s license and employment, but will still not qualify. They might be able to access assistance through a Community Legal Centre (CLC) but this will depend on factors such as where they live and the capacity of their local centre.

JusticeNet, where I work, fills many gaps in the legal assistance sector. The model is heavily reliant on the generosity of members of the private profession agreeing to undergo pro bono work. This is a highly economical and successful model which has proven to be sustainable for well over a decade. However, demand for our assistance continues to exceed the available resources.

This means people often face a long journey from, perhaps, an initial conversation with the legal helpline, a consultation with their local CLC, and an application to JusticeNet as their last resort.

And many matters can still fall through the cracks.

This has consequences for individuals, families, the Courts, and the community at large.

Imagine you received a speeding fine in the mail. The camera detected your car at a location at which you never drive. You know straight away that something is wrong. You consult your electronic diary on your reliable and fully charged smartphone and check who was actually driving the car that day. Plus you know you have the option of requesting photos if you think they have mistaken the vehicle altogether. Although you’re not happy about the $400 fine, if you end up having to pay it, it probably isn’t really going to impact your life too much. And if it really all goes pear-shaped, you probably know a traffic lawyer you can ask for help.

Now imagine you don’t have a fixed address so didn’t receive the fine until it was too late to submit a statutory declaration or consider electing to be prosecuted. Instead, enforcement action has commenced and additional fees added. You don’t have a job because you don’t have enough housing stability to maintain one. You will therefore have to repay this fine from your Centrelink benefits and will definitely notice the reduction in your fortnightly income for the duration of your repayment arrangement.

You don’t know where to go for help and certainly can’t afford to pay a lawyer to sort it out. You hear about the free legal helpline, and you do have a mobile, but because you live out of your car it is frequently without power or credit. That makes it harder to call them. Your phone is also regularly lost or stolen and so you don’t have records to help you figure out if you were even the driver on the relevant day.

The unfortunate reality is that people who are facing disadvantage are significantly more likely to be experiencing legal problems and are also more likely to be facing multiple legal problems.3

Services like the Legal Services Commission, Community Legal Centres, Aboriginal Legal Rights Movement and JusticeNet are well-placed to improve access to justice. They have legal expertise at their disposal as well as a commitment

to making services truly accessible, such as arranging interpreters where they are needed and ensuring that services are delivered by people with an understanding of the financial and non-financial barriers which the person might be facing in resolving their legal problems.4

However, uncertain, inadequate and ever-changing funding brings challenges to the sector.

How often do lawyers at one of these services think to themselves “if only this person had received some help earlier”? A truly effective legal assistance sector is well enough resourced to assist with such preventative education and early intervention work. Showing up to a legal advice appointment might (understandably) not be someone’s top priority if they also need to figure out where their next meal is coming from, where they are sleeping that night, or how they are gathering the identity documents which Centrelink have demanded before any further payments will be made to them. But if legal services are made as accessible as possible, the chances of them being utilised increases, and this can help vulnerable individuals to avoid spiralling consequences such as mounting fines and missed opportunities to file relevant documents. Examples of such services include duty solicitors on site at the Court precincts and JusticeNet’s Homeless Legal service (which provides legal help at the homelessness centres clients are already attending for meals and other assistance).

Ideally, a well-funded, stable, cohesive and collaborative legal assistance sector would mean that people could easily find the service best placed to assist them, taking into account their geographical location, the type of legal issue, and other relevant circumstances, such as family violence or disability. Specialist services are particularly effective because the lawyers have the most relevant skills and experience. An example is the various family violence legal services which are operated by lawyers and support staff who understand the practical and emotional challenges of this situation.

This has obvious benefits for the individual, who gets the support they need. However, this also provides undeniable benefit to the Courts (as lawyers assist in ways such as narrowing the issues in dispute), as well as to our community as a whole.5

From my experiences, the lawyers who work in this space are talented, dedicated and generous. It is worth celebrating the commitment to access to justice which is shared by so many within the South Australian legal profession. However, these resources are finite and unfortunately demand constantly exceeds capacity.

“An effective justice system must be accessible in all its parts. Without this, the system risks losing its relevance to, and the respect of, the community it serves. Accessibility is about more than ease of access to sandstone buildings or getting legal advice. It involves an appreciation and understanding of the needs of those who require the assistance of the legal system.”6 B Attorney-General Robert McClelland

Foreword to the Report of the Access to Justice Taskforce September 2009

Endnotes 1 https://www.un.org/ruleoflaw/thematic-areas/ access-to-justice-and-rule-of-law-institutions/ access-to-justice/ 2 In Australia, legal aid goes a long way to addressing the financial barriers to accessing justice. However, it is not a solution in itself.

More than 13 per cent of Australians live under the poverty line, while legal aid is available to just eight per cent. Many impoverished people are considered too wealthy to get basic legal help. https://www.lawcouncil.asn.au/justice-project/ access-to-justice 3 Law Council of Australia, The Justice Project,

“People who are homeless”, Final Report – Part 1,

August 2018 4 Australians who experience disadvantage may find it more difficult to access necessary legal assistance for many reasons such as education and literacy levels, language barriers, financial constraints, lack of accessibility, access to information and digital technology, past traumas and hesitation to engage in legal processes and lack of knowledge about their rights and where to go for advice and assistance. https://www. lawcouncil.asn.au/justice-project/access-to-justice 5 Properly investing in legal assistance services will increase access to justice, reduce the emotional and financial burden on individuals, reduce the pressure on courts, and reduce delays in the justice system. LSSA Key Election Issues 2022 State

Election. 6 https://www.ag.gov.au/legal-system/access-justice