SRLs - the people whom one acquaintance characterises as more dangerous than SLRs (and just as noisy) - are reported to account for over 35% of the people appearing in the Family Court and 18% in Federal Court matters (31% of migration cases in that court) along with a substantial number of people in state/territory courts in civil and criminal cases (discussed in for example the Australian Institute of Judicial Administration's 2004 Forum on Self Represented Litigants report [PDF]). As of 2002/3 some 42% of special leave applications filed in the High Court came from SRLs (with 99% of those applications being refused). The High Court subsequently declined to accept SRL special leave applications, discussed in Special Leave to Appeal (Brisbane: Supreme Court of Queensland Library 2007) by David O'Brien.
Self-representation in Australian federal courts is recognised in the Judiciary Act 1903 (Cth) s 27 and in a range of court rules, such as r7.1 of the Uniform Civil Procedure Rules 2005 (NSW). The AIJI Forum report noted that
the view that self-representation is a problem is not a universal one.In discussing access to justice the Hon Justice Pierre Slicer of the Tasmanian Supreme Court stated in 2004 that
Indeed, some tribunals and some jurisdictions within courts (e.g. small claims) operate on a basis which assumes certain advantages to self-representation and discourage (or bar) legal representations. 'Doing away with lawyers' is said to encourage quicker and more cost-effective solutions in these jurisdictions and to ensure that all parties operate on a 'level playing field'.
Even in jurisdictions where legal representation is permitted, there may be good reasons to encourage unrepresented parties to appear. For example, Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, noted VCAT’s Planning and Environment List has a strong emphasis on reducing legalism and encouraging participation from community groups and objectors. In Queensland the Self-represented Litigants Service (SRLS) was launched in December 2007 as part of the accessCourts initiative at the Supreme and District Courts in Brisbane.
There has always been tension between theory and practice in the stated objective that all are equal before the law. It is a basic tenet of our democratic system that all have access to the Courts and each person the right to present his or her case. Reasons which include economics, socio-economic background, impairment, and the like have always rendered it difficult for a tribunal to determine the causes of parties equally able to present and argue their cause. A further tension arises from an expectation that since all causes are important to the participant that there ought to be one first-class standard. As in all disciplines, such is impossible.Slicer went on compare judicial officers to patient "pit ponies" and to highlight questions about vexatious or querulous SRLs, indicating that
In some cases any assistance proffered or advice given to advance the cause of a litigant in person will be unwelcome and unsuccessful. ... the historic psycho-medical classification of "paranoid litigant" or "querulous" person, shows an equivalence between the modern and sociological response of "entitlement to legal rights" and the historic Marxists and/or Dickensian critique of the complexity and inequality of the legal system. Modern response through "alternative dispute resolution" and recognition of "complaint and victim" might resolve many difficulties, but transfers the remainder to a system "ill-equipped" to deal with the residue. The conjunction of "economic rationalism" by the right and "release to the community" by the left, suited both sides of the ideological divide, but left an institution of the state, bereft of political power, with the residual of the outcome.He concluded that SRLs traverse the fault lines in the justice system.
Some are well meaning who have become enmeshed in the pickets of the law; some are naïve or ill-suited to take an appropriate part in the determination and application of the law; and some consciously patrol the fault lines seeking "justice", fulfilment of an obsession, vehicles for expression of anger, or simply to meet an inner need. An obsessed litigant with intelligence, but not resources, is well suited to inhabit the fractures or "fault lines". They are able to use the tension between the right of access and the obligation of a court to administer justice and conduct cases efficiently and expeditiously. Self-represented litigants are independent of, and not governed by, the duties to a court by a legal practitioner upon which the court system is dependent.SLRs pose challenges of management and it
remains the duty of judicial officers, as best they are able, to resolve them. However, in approaching the problem, we should remember that we are neither social workers nor responsible for the general problems of our society. There is often a deep desire to help the "underdog" or to make up for disadvantage. We ought recognise within ourselves that our powers and resources to redress wider problems is limited and we ought not travel with a cross or albatross because of our inability to so resolve.Shaw J of the NSW Supreme Court had noted [PDF] during the preceding year that
One area of current controversy concerns the unrepresented defendant in sexual assault cases. The question of principle is whether an unrepresented accused person should be entitled to cross-examine a complainant in cases involving allegations of rape or other sexual assault. In a report published in June 2003, the New South Wales Law Reform Commission recommended that an unrepresented accused should be prohibited from personally cross-examining a complainant in a sexual offence proceeding, and that a legal practitioner should cross-examine the complainant in such proceedings where the accused is unrepresented. It was further recommended that the accused must be advised, at the earliest possible time after arrest and no later than the commencement of proceedings, that legal representation is necessary in sexual offence proceedings if he or she wishes the complainant to be cross-examined. The accused, it was recommended, should be advised to make arrangements for representation and given the opportunity to do so.The issues underlying that recommendation have been reflected in statutory changes in the ACT, NSW and other Australian jurisdictions.
