Episode 6 – Access to Justice

The Rule of Law may be a great ideal, but does it mean anything if in practical terms many people do not have access to legal advice and adjudication.  In this episode we look at the barriers to access to justice and some of the ways in which these barriers are at least partially overcome, including Alternative Dispute Resolution and the emerging Online Dispute Resolution.

Avid listeners to this podcast series have heard us talk about the rule of law, and the role of the courts, judges and lawyers in maintaining that ideal.  Underlying each of those discussions there has been an assumption that the legal system can in fact be used by people to address their legal problems. 

If people cannot do this, then the rest is empty rhetoric. Effective access to the legal system is fundamental to our ideas of individual rights, equality and justice – in short, access to justice is essential to the rule of law.

And yet we know that every day the legal system fails to meet that ideal.  Legitimate legal claims are not pursued, questionable legal claims are not defended, and people are dealt with in court without the benefit of legal representation.  In this episode we look at why this is so – why do so many people not have access to justice?

There are many factors that contribute to the problem.  These include the high cost of legal services, particularly lawyers’ fees and court costs; the procedural hurdles and delays that are part of the litigation process; and, at the outset, the difficulties that many people have in knowing and understanding their legal rights and remedies.

And even if a person does know about their legal rights, the decision to use the legal system to address a legal problem is not the same for all people.  Access can be particularly problematic for women, first nations people, and young people.  The geographical location of lawyers contributes to this problem.  In Australia the majority of lawyers’ practices are in the capital cities, particularly Sydney and Melbourne.  Just like medical services, there has been a decline in the availability of lawyers in rural and remote areas

Of course, not everyone faces these difficulties.  Some types of litigant are able to use the legal system quite effectively.  In other words, the sytem is unequal in practice: it serves the interests of some people but not others.  This also means that certain types of legal problems are more likely to receive attention than others, particularly commercial and property-related matters.  This creates a large pool of ‘unmet legal need’.

This imbalance has been described by American legal academic Marc Galanter as the difference between being a ‘one-shotter’ and a ‘repeat player’ in the legal system.  For the one-shotter, entering the legal system is a rare event.  It might be a tenancy problem, a custody dispute, or a personal injury claim.  For this person, the system is unfamiliar and the costs of winning or losing the case are high. 

For the repeat player, on the other hand, using the legal system is an everyday event – it is part of business.  Insurance companies and government agencies are examples.  These litigants know the system, and they can cope with occasionally losing a case.  The adversarial system plays out differently depending on whether the case is one between repeat player and one shotter, repeat-player against another repeat player, and so on.

Differences between the type of litigants and legal complaint are important aspects of the access to justice problem.  So too is obtaining access to affordable legal advice and representation.  This is the problem that legal aid systems are intended to address.  There are different ways of providing legal aid.  Listeners may know of so-called ‘shop front’ legal aid offices, where publicly salaried lawyers provide free legal advice to ‘drop-in’ clients.  These are valuable services, but unfortunately they are limited by inadequate levels of public funding.  This limits the range of legal matters that they can deal with. Necessarily they must screen out potential clients who do not meet the legal aid service’s guidelines and means test. 

There are also indigenous legal aid services that deal with the particular problems of first nations people when they confront the legal system.  These services employ lawyers and paralegal workers with experience in working with local first nations communities.

The private legal profession also has a role in legal aid and providing access to justice.  In some instances, a public legal aid clinic might refer a case to a private practitioner who will provide the legal service for a fee that is equal to the legal aid rate.  Many law firms also operate ‘pro bono’ programs through which lawyers provide legal advice and possibly representation for no fee.  Again, the range of legal matters that pro bono programs deal with is limited, usually to employment, immigration and small business problems.

Another way in which lawyers can reduce the barriers to access is by charging their fees on a ‘no win, no fee’ basis.  This is where the payment of the fee is contingent on a successful outcome for the client.  In cases where the client is suing someone for damages they may agree additionally to pay a percentage of the amount they are awarded.

Despite the legal aid system, people still appear in court without legal representation.  In Australia the high court has held that there is no right in court to be provided with legal representation at the public expense.  But at the same time, the court affirmed that an accused person does have a right to a fair trial.  It is for the judge in such a case to decide whether the absence of legal representation means the absence of a fair trial and, if so, what steps should be taken.  This might mean adjourning the trial until legal representation can be made available.

We need to be careful not to equate ‘access to justice’ with ‘access to the courts’ or ‘access to a lawyer’.  Just because a problem has a legal dimension, it does not follow that a legal response will always be necessary or the most effective way of dealing with it.  Disputes between neighbours or people in regular business interactions might be better dealt with by not resorting to the law.

For this reason, people involved in legal disagreement might use ‘alternative dispute resolution’ or ‘ADR’ instead.  ADR is a label that applies to a diverse range of dispute-processing methods, such as mediation, negotiation, or conciliation.  Some of these involve a third party who helps to facilitate an outcome; some methods are quite informal, others are not; some result in binding decisions on the parties, others do not. 

One systemic advantage of ADR is that it takes some pressure off the courts’ caseload.  In fact, over time the courts have realised this and, in some types of legal dispute, they now factor mandatory ADR sessions into the litigation process in the hope of resolving a dispute without using the courts’ time and resources.  In a sense, ‘alternative’ dispute resolution has become ‘mainstream’.

Another procedure being experimented with around the world is online dispute resolution, or ODR.  This might have ADR elements of mediation etc, but it might also involve adjudication.  There are ideas that in future it might also involve artificial intelligence to gather and sift the facts, identify the legal issues and suggest an outcome.  We’ll look at this in a future episode, as a cutting edge but controversial development in access to justice.

Looking into the many aspects of the access to justice problem reminds us that despite the formal rhetoric of rights and equality, the legal system in practice can operate in a very unequal way.  This difference between what the law promises and what it actually delivers has sometimes been described as the gap between the law in the books and the law in action. 

And exploring that gap, dear listener, is what this podcast series on ‘law in context’ is all about.

Stephen Bottomley and Simon Bronitt, Law in Context (Federation Press, 5th ed, 2023) Chapter 5 Access to Justice

Law Council of Australia, The Justice Project (Final Report, August 2018) (https://lawcouncil.au/justice-project/final-report )

Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, September 2014) (https://www.pc.gov.au/inquiries/completed/access-justice/report)

World Justice Project, Global Insights on Access to Justice 2019 (https://worldjusticeproject.org/our-work/research-and-data/global-insights-access-justice-2019)

Independent Review of the National Legal Assistance Partnership 2020-25 | Attorney-General’s Department (ag.gov.au)

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