DISADVANTAGED Australians do not have adequate access to legal representation and this is having a detrimental effect on the legal system and the delivery of justice, according to a new report by the Law Council of Australia.
Erosion of Legal Representation in the Australian Justice System is said to confirm what the Council had long suspected: that a deficiency in public funding had led to a failure to maintain pace with the actual costs of legal representation, jeopardising the delivery of justice in Australia.
Now the Council is reiterating concerns expressed as early as 1994 — that insufficient levels of funding would prevent an increasing number of Australians from gaining legal support. The Council had also predicted that “keeping pace” with the cost of legal representation would offer a challenge to the delivery of justice.
An increasing number of self-represented litigants were attending the courts, the report revealed. This could be attributed, at least in part, to a lack of available publicly funded representation.
It was also said that there had been inequity in access to representation, that legal aid fees were below the real cost of “generally providing the necessary legal service” and that “increases are needed to at least meet costs”.
There was a “significant” withdrawal of experienced lawyers from publicly funded legal work and “some diminution” in the quality of publicly funded legal representation, the report claimed.
The integrity of the justice system was challenged when legal representation was not available to a litigant, said Law Council president Bob Gotterson. “At a time when the law has become more complex and there is a real growth in legal need, many Australians are being denied the right to legal representation to receive a just outcome,” he said.
The courts were also disadvantaged by the increased number of self-represented litigants, said the report. Some disadvantaged clients feel pressured to plead guilty or abandon their cases because of a lack of legal representation, Gotterson said. And the courts were “facing rising costs” because of an increase in the number of self-represented litigants, prolonged cases and delays in court proceedings.
Gotterson said lawyers wanted to see justice done, as do judicial officers, “but the need to remain impartial in the delivery of justice becomes very difficult when there is no legal representation”.
Paula O’Brien, executive director of the Public Interest Law Clearing House (PILCH), a legal referral service, spoke to Lawyers Weekly about the Law Council’s concerns. Adding spice to the Council’s mix of issues, she said that it was very difficult for courts to dispense justice when someone represents themselves because “that person cannot properly put their interests to the court”.
“There are limits on how intervening a judge can be to assist that person,” she said.
O’Brien acknowledged the increasingly large amount of pro bono work that private practitioners were doing, noting that for asylum seekers, some commercial firms had been sending their lawyers to training “so that they can provide pro bono migration legal assistance to these people”.
The Law Council makes a series of recommendations in the report. These include calling on the Australian Law Reform Commission to conduct a study of the effect self-represented litigants have on the Australian justice system.
Gotterson suggested the establishment of a national task force, which would develop national guidelines to provide public funding to disadvantaged litigants in the justice system.
O’Brien also stressed the need for increased public assistance. She said the government should look at its guidelines and consider revising them to ensure money in the pool is properly distributed. “The government should not sidestep its obligations by pointing at the pro bono work that private law firms are doing,” O’Brien said.
The Law Council’s report was undertaken in association with the Australian Institution of Judicial Administration, National Legal Aid and the Aboriginal & Torres Strait Islander Services.