THE RISING cost of Australia’s justice system is creating some significant barriers to accessible justice and Attorney-General Robert McClelland is determined to do something about it.
First, McClelland moved to last month make reforms to the Legal Services Directions to promote swift resolution of disputes involving Commonwealth agencies. Now he’s turning his attention to less formal means to resolving disputes in place of court-based litigation, and encouraging all stakeholders to play a part.
Speaking at the Australian Institute of Administrative Law Forum in Melbourne, McClelland said litigation needed to be put aside as more innovative methods of justice administration were explored to seek resolutions.
“In fact,” said McClelland, “I think it would be beneficial for our entire civil justice system to have more of a ‘resolution culture’ than an adversarial culture.”
That said, McClelland noted — with an audience of administrative law practitioners before him — that administrative law was often responsible for such rising costs, but could also play a significant role in facilitating the shift in culture.
And with administrative lawyers positioned to assist individuals to redress their particular complaints, such practitioners could help clients request reasons for a particular decisions or relevant documentation under the Freedom of Information Act.
McClelland also mentioned that he had asked the National Alternative Dispute Resolution Advisory Council to provide incentives to ensure greater use of alternative dispute resolutions, instead of and during litigation.
Other reforms include the new legislation on Freedom of Information (FOI), which is expected to be introduced later this year. McClelland said a future FOI request may soon be enough to show an “aggrieved individual that their application was carefully considered by government decision-makers, and that the decision was made fairly and in accordance with the law”.
Meanwhile, the Ombudsman is also placed to investigate systemic issues as well as merit reviews in Commonwealth tribunals, and ensuring judicial review was available to correct errors of law and provide cheap and effective ways to challenge a decision of government.
McClelland said there are plenty of mechanisms available, and the role of the practitioner is vital to ensure they’re used effectively. “It’s up to them to examine the options in light of an individual’s situation and make sure they’re able to make full use of the methods available to receive effective and efficient justice,” he said.
With this, McClelland said administrative lawyers should not merely rely on the court process and litigation alone; they needed to increase their range of skills to also include negotiation, dispute resolution, mediation and inquiry skills.
Still, the process does not end with these practitioners: “There needs to be a commitment from government that public servants will actively assist tribunals in resolving disputes, and not simply protect their decisions,” he said. “So, too, it’s important to remember that tribunal registrars, members and judges share the responsibility for managing administrative law matters in an efficient and effective way.”