Access to justice arrangements

Inquiry report

Released 03 / 12 / 2014

Volume 1 looks at the accessibility of the justice system, the use of alternative forms of dispute resolution, the regulation of the legal profession and the structure and operations of ombudsmen, tribunals and courts.

Volume 2 discusses private funding of litigation; and the provision of legal aid, both broadly, and specifically to Aboriginal and Torres Strait Islander people.

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Government response

Key points
Contents
Appendices

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.

Preliminaries
- Cover, Copyright and publication details, Letter of transmittal, Terms of reference, Contents, Acknowledgments, Disclosure of interests and Abbreviations and explanations.

Volume 1

Overview
Summary of the Commission's main proposals
Recommendations
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 What are the patterns and characteristics of those who experience 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 Using the civil justice system
- 5.2 Existing services that build legal capability
- 5.3 Reforms to improve knowledge and capacity building activities
- 5.4 Specific measures to identify and assist those that need more help
- 5.5 What about businesses' legal capability?
- 5.6 Less complex law makes it easier to navigate the system
Chapter 6 Protecting consumers of legal services
- 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
- 7.4 Limited licences
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?
- 9.5 Improving efficiency and effectiveness
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 rules 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 To whom should costs awards apply?
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 is the system in dealing with self represented litigants, 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 A framework for considering the options
Chapter 16 Court and tribunal fees
- 16.1 Why do courts and tribunals charge fees?
- 16.2 A framework for structuring court and tribunal fees
- 16.3 Increasing the level of cost recovery in Australian courts and tribunals
- 16.4 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?

Volume 2

Chapter 18 Private funding for litigation
- 18.1 What is private litigation funding?
- 18.2 The debate on the merits of private funding
- 18.3 A way forward for private funding
Chapter 19 Bridging the gap
- 19.1 A 'missing middle'
- 19.2 Unbundling legal services
- 19.3 Legal expenses insurance
- 19.4 Contingent loans for legal expenses
- 19.5 Legal assistance models involving the not for profit sector
Chapter 20 The legal assistance landscape
- 20.1 What is the rationale for publicly-funded legal assistance services?
- 20.2 Who are the main players?
- 20.3 What type of services do they provide?
- 20.4 Who are casework services targeted at?
- 20.5 What areas of law do providers target?
- 20.6 What do their service delivery models look like?
- 20.7 What are their governance arrangements?
- 20.8 How are they funded?
- 20.9 How have funding levels changed over time?
- 20.10 Where to from here?
Chapter 21 Reforming legal assistance services
- 21.1 What types of services should be offered?
- 21.2 What individuals and matters should attract government funded legal assistance?
- 21.3 How can the service delivery model be improved?
- 21.4 Addressing pressing need
- 21.5 Improving legal assistance over the longer term
- 21.6 What about the benefits?
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 the 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?
- 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 Family law
- 24.1 The nature of family disputes
- 24.2 What does the family law system look like?
- 24.3 What are the accessibility problems and solutions?
Chapter 25 Data and evaluation
- 25.1 Data and evaluation are important but underutilised
- 25.2 What are the problems with the existing data collected?
- 25.3 Why have evaluations been limited?
- 25.4 How to improve data collection and evaluation
Appendix A Conduct of the inquiry
References

Online only appendices

Please note: The following appendices are supplementary to the inquiry report and are not available in the printed copies. Download the appendices

Appendix B 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 Eligibility for legal aid and the cost of extending it
Appendix I Location of community legal centres and disadvantage
Appendix J Building the evidence base
Appendix K Measuring the benefits of legal assistance services

Please note: The following appendices are supplementary to the inquiry report and are not available in the printed copies. 'Appendix A Conduct of the inquiry' is in Volume 2.