“Any examination of how, and how many, people may be restricted from access to justice because they cannot afford it and do not qualify for legal assistance is important,” said Fiona McLeod SC (pictured), chair of the Victorian Bar.
“But we must also focus attention on ways we can work on solutions to improve the efficiency and effectiveness of our justice system – and that includes ensuring that the very good processes and initiatives in place are properly resourced so they can deliver.”
The inquiry, announced on 20 June by Federal Attorney-General Mark Dreyfus QC and
assistant treasurer David Bradbury, is due to report its findings and recommendations in 15 months.
It is expected to determine the number of pro bono hours provided by legal professionals and the number of Australians who may not be able to afford to secure legal representation but do not qualify for legal assistance.
The terms of reference for the inquiry require analysis of the supply of law graduates and barriers to entering the legal services market; the structure of the legal profession in state and territory jurisdictions; legal professional rules and practices; court practices and procedures; models of billing practices; the application of taxation laws to legal services expenditure, and other features of the legal services market that drive costs.
“Any examination of access to justice necessarily means consideration of what minimum standards to justice should apply, and how we measure against them,” said McLeod, adding that the review should look at how government policy initiatives impact on the justice system and access to it.
The terms of reference further stipulate analysis of the ability of disadvantaged parties, including persons for whom English is a second language, to effectively self-represent; and the extent to which resource disparity impacts on the effectiveness of the adversarial system and court processes.
The impact of discovery and case management processes on the cost of accessing justice will also be examined, along with early intervention measures; models of alternative dispute resolution; litigation funding; different models of legal aid assistance; specialist courts or alternative processes like community conferencing, and expedited procedures.
“It’s not fair that many people cannot afford to access the courts, or have to walk away from disputes because they cannot afford legal representation,” said McLeod.
“They effectively forfeit their legal rights. There is a huge social and economic cost that flows from this. Fundamentally, access to justice and equality before the law should not be something that is only available to those with money.”
The Commission will consider reforms in Australian jurisdictions and overseas that have been effective at promoting equality in the justice system. It will also look at how data collection across the justice system might enable better measurement and evaluation of cost drivers and the effectiveness of measures to contain these.
“I congratulate the Attorney-General and the assistant treasurer on making this important referral. This review will be a useful addition to the significant and growing body of analysis and research in this area,” said McLeod.