The first volume deals with the accessibility of the justice system, use of alternative forms of dispute resolution, regulation of the legal profession and the structure and operations of ombudsmen, tribunals and courts. The second volume discusses private funding of litigation and the provision of legal aid (generally and specifically to Aboriginal and Torres Strait Islander people).
Key points are
- There are widespread concerns that Australia’s civil justice system is too slow, too expensive and too adversarial. But the notion of a civil justice ‘system’ is misleading. Parties can resolve their disputes in many ways, including through courts, tribunals and ombudsmen. Each differs in its formality, cost and timeliness. Such a complex system resists both a single diagnosis and remedy.
- While much focus is on the courts, the central pillar of the justice system, much is done in their shadow, with parties resolving their disputes privately. Community legal education, legal information (including self-help kits) and minor advice help ensure that parties are better equipped to do so. Better coordination and greater quality control in the development and delivery of these services would improve their value and reach.
- Where disputes become intractable, parties often have recourse to a range of low cost and informal dispute resolution mechanisms. But many people are unnecessarily deterred by fears about costs and/or have difficulty in identifying whether and where to seek assistance. A well-recognised entry point or gateway for legal assistance and referral would make it easier to navigate the legal system.
- Most parties require professional legal assistance in more complex matters. But the interests of lawyers and their clients do not always align. Reforms to professional regulation are required to ensure clients are better informed and have more options for selecting the tasks they want assistance with, and how they will be billed. Clients should also have independent and effective options for redress when professional standards fall short.
- Some disputes, by their nature, are more appropriately handled through the courts. While these disputes may be small in number, many individuals are poorly placed to meet the associated costs. Court processes in all jurisdictions have undergone reforms to reduce the cost and length of litigation. But progress has been uneven and more needs to be done to avoid unnecessary expense.
- The ways in which parties interact with each other and with courts and tribunals also needs to change. The adversarial behaviour of parties and their lawyers can hinder the resolution of disputes or even exacerbate them. Changes to rules governing the conduct of parties and lawyers, and the way in which costs are awarded, would improve incentives to cooperate.
- Court fees vary widely across courts and jurisdictions and are not set with reference to a common framework. A more systematic approach is required for determining fees. Parties can derive significant private benefits from using the court system; these benefits need to be reflected in court charges, which in many cases should be increased.
- Disadvantaged Australians are more susceptible to, and less equipped to deal with, legal disputes. Governments have a role in assisting these individuals. Numerous studies show that efficient government funded legal assistance services generate net benefits to the community.
- The nature and predictability of funding arrangements constrain the capacity of legal assistance providers to direct assistance to the areas of greatest benefit. This needs to change and, in some cases, funding should be redirected.
- While there is some scope to improve the practices of legal assistance providers, this alone will not address the gap in services. More resources are required to better meet the legal needs of disadvantaged Australians.
1. an assessment of the real costs of legal representation and trends over time
2. an assessment of the level of demand for legal services, including analysis of: (a) the number of persons who cannot afford to secure legal services but who do not qualify for legal assistance services, and (b) the number of pro bono hours provided by legal professionals
3. the factors that contribute to the cost of legal representation in Australia, including analysis of: (a) the supply of law graduates and barriers to entering the legal services market (b) information asymmetry (c) other issues of market failure (d) the structure of the legal profession in State and Territory jurisdictions (e) legal professional rules and practices (f) court practices and procedures (g) models of billing practices (h) the application of taxation laws to legal services expenditure, and (i) other features of the legal services market which drive costs
4. whether the costs charged for accessing justice services and for legal representation are generally proportionate to the issues in dispute
5. the impact of the costs of accessing justice services, and securing legal representation, on the effectiveness of these services, including analysis of: (a) the ability of disadvantaged parties, including persons for whom English is a second language, to effectively self-represent, and (b) the extent to which considerable resource disparity impacts on the effectiveness of the adversarial system and court processes
6. the economic and social impact of the costs of accessing justice services, and securing legal representation
7. the impact of the structures and processes of legal institutions on the costs of accessing and utilising these institutions, including analysis of discovery and case management processes
8. alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these, including analysis of the extent to which the following could contribute to addressing cost pressures: (a) early intervention measures (b) models of alternative dispute resolution (c) litigation funding (d) different models of legal aid assistance (e) specialist courts or alternative processes, such as community conferencing (f) use of technology, and (g) expedited procedures
9. reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation and promoting equality in the justice system, and
10. data collection across the justice system that would enable better measurement and evaluation of cost drivers and the effectiveness of measures to contain these.