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Access to Justice Arrangements

Draft report

This report was released on 8 April 2014. You were invited to examine the draft report and to make written submissions and to participate in public hearings. Submissions were due by 21 May 2014.

This inquiry has concluded. The final report was sent to Government on 5 September 2014 and publicly released on 3 December 2014.

Please note: This draft report is for research purposes only. For final outcomes of this inquiry refer to the inquiry report.

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  • Key points
  • Media release
  • Contents
  • 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, and they are the central pillar of the justice system, much is done in the shadow of the law - knowledge of what might happen if a dispute ends up in court prompts many to resolve their disputes privately.
  • Where disputes become intractable, parties have recourse to a range of low cost and informal dispute resolution mechanisms. But many people have difficulty in identifying whether and where to seek assistance - they either take no action or seek help from inappropriate sources.
  • Providing people with basic information so that they can resolve their disputes privately and helping people connect with less formal mechanisms, such as ombudsmen, could significantly reduce the level of unmet legal need.
  • Most parties require professional legal assistance in more complex matters. But the interests of lawyers and their clients do not always align - clients need to be 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 way 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. Parties derive significant private benefits from using the court system; these benefits need to be reflected in court charges.
  • 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 government funded legal assistance services generate net benefits to the community.
  • 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 needs to be redirected.
  • More resources and more efficient and effective practices by legal assistance providers are required to better meet the legal needs of disadvantaged Australians.

Background information

Leonora Nicol (Media and Publications) 02 6240 3239 / 0417 665 443

Wide ranging reforms needed to improve access to justice

A number of barriers that prevent people from resolving civil disputes in a timely and affordable way should be removed, according to a draft report released by the Productivity Commission.

The Commission has found opportunities to improve:

  • the accessibility of the system
  • the structure and operations of ombudsmen, tribunals and courts
  • the use of alternative forms of dispute resolution
  • the regulation of the legal profession
  • private funding of litigation
  • the provision of legal aid, both broadly, and specifically to Aboriginal and Torres Strait Islander people.

'The civil justice system touches the lives of all Australians, from disputes with their electricity provider, claims against insurance companies, disputes with local councils, through to domestic violence and divorce. Many of these interactions occur 'in the shadow' of the formal system. This complexity makes it difficult to assess and design policies to improve accessibility and constrain costs - these challenges are compounded by a lack of data,' Presiding Commissioner Dr Warren Mundy said.

'Even judges and lawyers have told us the formal parts of the system are too slow, expensive and hard to understand. We have focused our attention on problems that impact significantly on individuals and small businesses that, without government intervention, are likely to go unresolved.'

'The Commission has approached this inquiry by weighing up the potential of a range of possible responses to these problems to improve community wellbeing and the costs that would be associated with such responses. We have also identified a number of measures that should improve the efficiency of the civil justice system.'

'Even if these measures were implemented, the system will remain out of reach for some people - either due to the nature of the dispute or because they experience significant disadvantage. Consequently, the Commission has also examined how consumers might be better equipped to deal with large and unexpected legal costs, and how best to assist disadvantaged Australians to access the civil justice system. In particular, we have looked closely at how much, and how well, legal assistance money is spent and are seeking more information to develop recommendations in this area,' Dr Mundy said.

The Commission's inquiry does not address criminal justice issues.

The Commission is inviting submissions on the draft report, its recommendations and information requests by 21 May 2014 and intends holding public hearings in all capital cities during June.

Background information

Leonora Nicol (Media and Publications) 02 6240 3239 / 0417 665 443

  • Preliminaries
    • Cover, Copyright and publication details, Opportunity for further comment, Terms of reference, Disclosure of interests, Contents and Abbreviations and explanations.
  • Overview
  • Summary of the Commission's main proposals
  • List of draft findings, recommendations and information requests
  • Chapter 1 What is this inquiry about?
    • 1.1 What is 'access to justice'?
    • 1.2 What is 'Australia's system of civil dispute resolution'?
    • 1.3 The Commission's approach
  • Chapter 2 Understanding and measuring legal need
    • 2.1 What is legal need?
    • 2.2 How can legal need be measured?
    • 2.3 How many Australians experience legal need?
    • 2.4 Is there clustering of legal problems?
    • 2.5 To what extent is there unmet legal need?
  • Chapter 3 How accessible is the civil justice system?
    • 3.1 How much does it cost to resolve civil disputes?
    • 3.2 How long does it take to resolve disputes?
    • 3.3 How complex is the civil justice system?
  • Chapter 4 A policy framework
    • 4.1 The role of the civil justice system
    • 4.2 Civil justice and the role of government
    • 4.3 Promoting an efficient and effective civil justice system
  • Chapter 5 Understanding and navigating the system
    • 5.1 Understanding when problems have a legal dimension
    • 5.2 Information and advice for resolving disputes
    • 5.3 Referring people to appropriate sources of advice
  • Chapter 6 Information and redress for consumers
    • 6.1 Why do consumers need protecting?
    • 6.2 The current approach to billing is changing
    • 6.3 Some reforms are required to protect consumers
    • 6.4 Complaints avenues for legal service consumers
  • Chapter 7 A responsive legal profession
    • 7.1 Characteristics of the legal profession
    • 7.2 Becoming a lawyer - education and training
    • 7.3 Regulation of the profession
  • Chapter 8 Alternative dispute resolution
    • 8.1 What is ADR and what role does it play?
    • 8.2 The benefits and costs of using ADR
    • 8.3 Can ADR be used more extensively?
    • 8.4 Facilitating greater ADR
    • 8.5 Building the evidence base
  • Chapter 9 Ombudsmen and other complaint mechanisms
    • 9.1 What do ombudsmen do?
    • 9.2 How do Ombudsmen promote access to justice?
    • 9.3 How well are ombudsmen performing?
    • 9.4 Can ombudsmen play a bigger role?
  • Chapter 10 Tribunals
    • 10.1 Tribunals in the civil dispute resolution landscape
    • 10.2 A different way of 'doing business'
    • 10.3 Are tribunals effective in delivering access to justice?
    • 10.4 How might tribunal performance be improved?
  • Chapter 11 Court processes
    • 11.1 Courts are important in providing access to justice
    • 11.2 What influences the accessibility of the courts?
    • 11.3 Case management
    • 11.4 Case allocation
    • 11.5 Discovery
    • 11.6 Expert evidence
    • 11.7 The importance of complementary reforms
  • Chapter 12 Duties on parties
    • 12.1 Duties on parties regarding behaviour and conduct
    • 12.2 Model litigant guidelines to address power imbalances
    • 12.3 Vexatious litigants
  • Chapter 13 Costs awards
    • 13.1 Overview of rules to award costs
    • 13.2 A framework for evaluating costs awards
    • 13.3 Reforming the structure of costs awards
    • 13.4 Who should costs awards apply to?
  • Chapter 14 Self-represented litigants
    • 14.1 How many people self-represent?
    • 14.2 What are the key characteristics of SRLs?
    • 14.3 Why do people self-represent?
    • 14.4 What are the impacts of self-representation?
    • 14.5 How effective are current measures, and what more could be done?
  • Chapter 15 Tax deductibility of legal expenses
    • 15.1 Why does tax deductibility matter for access to justice?
    • 15.2 What options are there for improving current arrangements?
    • 15.3 A framework for considering the options
  • Chapter 16 Court and tribunal fees
    • 16.1 The objectives of court and tribunal fees
    • 16.2 The impact of court fees on access to justice
    • 16.3 Increasing cost recovery in courts and tribunals
    • 16.4 Reforms to fee relief arrangements
  • Chapter 17 Courts - technology, specialisation and governance
    • 17.1 Technology
    • 17.2 Specialisation
    • 17.3 Court governance and administration arrangements
    • 17.4 Is there a case for greater financial autonomy?
  • Chapter 18 Private funding for litigation
    • 18.1 Private funding by a lawyer
    • 18.2 Private funding by a third party
  • Chapter 19 Bridging the gap
    • 19.1 A 'missing middle'?
    • 19.2 Unbundling legal services
    • 19.3 Legal Expense Insurance
    • 19.4 Legal Expenses Contribution Scheme
    • 19.5 Legal assistance models involving the not-for-profit sector
  • Chapter 20 The legal assistance landscape
    • 20.1 Who are the main players?
    • 20.2 What type of services are provided?
    • 20.3 Who are services targeted at?
    • 20.4 What areas of law can people get assistance with?
    • 20.5 What do their service delivery models look like?
    • 20.6 What are their governance arrangements?
    • 20.7 What are the funding arrangements?
    • 20.8 What's been happening to funding levels over time?
    • 20.9 Where to from here?
  • Chapter 21 Reforming legal assistance services
    • 21.1 Are the right mix of services being provided?
    • 21.2 Is the 'balance' right in terms of areas of law?
    • 21.3 Are legal assistance services in the right locations?
    • 21.4 Are assistance services targeting the 'right' people?
    • 21.5 Is the service delivery model the right one?
    • 21.6 Does the distribution of funds need changing?
    • 21.7 Is the quantum of funding adequate?
    • 21.8 How well do the governance arrangements work?
  • Chapter 22 Assistance for Aboriginal and Torres Strait Islander people
    • 22.1 Aboriginal and Torres Strait Islander people face significant barriers in accessing justice
    • 22.2 There are good grounds for specialised services
    • 22.3 There are gaps in coverage of specialised services
    • 22.4 Service gaps can have severe consequences
    • 22.5 Multi-faceted responses are required to help bridge the gaps
  • Chapter 23 Pro bono services
    • 23.1 Who are the major providers and beneficiaries of pro bono services?
    • 23.2 How are pro bono services delivered?
    • 23.3 How much pro bono is provided in Australia?
    • 23.4 What impacts on lawyers' willingness and capacity to provide services?
    • 23.5 What role can pro bono play in improving access to justice?
    • 23.6 How might pro bono service delivery be improved?
  • Chapter 24 Data and evaluation
    • 24.1 Data and evaluation are important but underutilised
    • 24.2 What are the data limitations?
    • 24.3 Why have evaluations been limited?
    • 24.4 Improving data collection and evaluation
  • Appendix A Conduct of the inquiry
  • References
  • Appendix B Unmet legal need
  • Appendix C Survey of court users
  • Appendix D List of tribunals and ombudsmen
  • Appendix E Expert evidence reforms
  • Appendix F Data on self-represented litigants
  • Appendix G Approaches to cost allocation in court fees
  • Appendix H Complex legal needs
  • Appendix I Location of community legal centres and disadvantage
  • Appendix J Building the evidence base

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