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Legal Need

There are a number of considerations relevant to a discussion of 'legal needs':

• While the potential to seek a legal resolution to a problem may indicate some form of legal need, a decision not to do so cannot on its own warrant a finding that legal need does not exist.
• Either by preference or circumstance a person may choose not to have recourse to the justice system at all, and instead seek to use alternative forms of problem resolution. These may involve models which fall under the broad heading of 'alternative dispute resolution', or they may involve less formal, more personal initiatives. An individual may decide to resolve the matter themselves, or that it is easier to do nothing. In these circumstances it would be artificial to conclude that the individual does not have a legal need.
• Even where an individual would prefer to have recourse to the legal system to resolve their problem, they may decide not to have such recourse for a number of reasons.
• perceive that the courts and tribunals provide a cumbersome, expensive or inefficient route to resolution
• be concerned with the financial resources and the investment in time required from them, or the anticipated delay in resolving their matter.

Whether a decision to avoid the formal legal system means that an individual has no 'legal needs' is a difficult question. On the one hand, there may be an element of personal priorities and values informing the decision, in which case it may be said that there is no unmet legal need. On the other hand, the circumstances which create those priorities and values may be the result of the failings of the legal system or the existence of barriers that prevent the individual from using dispute resolution mechanisms.

Many access to justice studies which emphasise legal needs presume that an individual is able to identify when they have a legal need. For example, in its 1998 Access to Justice inquiry, the Law Society of NSW chose to focus on the right to participate in the justice system, underpinned by the principles that the justice system is seen to be, and is, accessible and affordable, is easy to understand, and is fair, efficient and effective. Implicit in this was the assumption that meeting legal needs is confined to the issue of ability to participate in the justice system.³

Unfortunately, such a presumption inevitably excludes those people who, as a result of lack of knowledge or external advice, do not realise that their problem may be regulated by law and has a remedy obtainable through the legal system. It is arguable that these people have as great (or perhaps greater) a legal need as those who are aware that they have a legal problem but cannot access the legal system, since they are excluded from its operation from the start by their ignorance.