Accessible legal services
The barriers to accessing legal help reported by LAW Survey respondents across jurisdictions indicate that there is considerable scope in Australia to improve the accessibility of legal services so that they more closely ‘mirror’ the behaviour of those who wish to use them (Pleasence 2006). Respondents often had difficulty contacting advisers via telephone, making suitable appointments, receiving timely responses and travelling to advisers for in-person consultations. Legal services may need to be extended and provided with additional resources in order to widen accessibility and to meet current demand efficiently. For example, extension of operating hours, telephone, internet and video conferencing services, local services in readily accessible locations, outreach services in rural and remote areas, and services in appropriate languages may all be worth exploring as means of increasing accessibility (Buck et al. 2007, 2008; Coumarelos et al. 2006; Forell, Laufer & Digiusto 2011; Pleasence 2006). As with all new service initiatives, however, it is important to evaluate whether any changes that aim to increase the accessibility of legal services have the desired effect.
Appropriate mode of legal service delivery
The mode of legal service delivery also needs to be accessible and appropriate for the client group. Across jurisdictions, the LAW Survey found that both telephone and in-person communication were very commonly used to consult legal advisers. In addition, in most jurisdictions, in-person communication was more likely to be used for consulting legal advisers than it was for consulting many other types of advisers.(13)
These findings suggest that the provision of accessible face-to-face legal services is an important policy objective and a valuable component of a holistic approach to justice.
Sole reliance on internet and telephone legal information and advice services may fall short of providing justice for all people. Some Australians do not have easy access to telephones or the internet. In addition, internet and telephone services can be ineffective modes of delivering legal assistance for people with low levels of legal capability. For example, as already noted, people with poor literacy or communication skills can have difficulty using legal information resources and websites, and other self-help strategies (Barendrecht 2011; Giddings & Robertson 2003a; Hunter et al. 2007; Lawler et al. 2009; Nheu & McDonald 2010). In addition, several authors have noted that disadvantaged people in particular often fall into the category of those who may require high-quality face-to-face advice in order to achieve beneficial legal resolution. Disadvantaged people often have complex legal needs and low levels of legal capability, such as low literacy and poor communication skills, which mean that they cannot always understand telephone and internet advice (Buck et al. 2007, 2008; Forell et al. 2005; Forell & Gray 2009; Genn & Paterson 2001; Pearson & Davis 2002; Pleasence 2006). For example, Pearson and Davis (2002) reported worse outcomes for legal hotline callers who were poorly educated, separated or members of minority ethnic groups. Callers with low legal capability often failed to comprehend and act on the advice they received, suggesting that telephone advice may often be insufficient for such people, unless it is supplemented with additional measures to further reinforce understanding and promote appropriate action. Pearson and Davis suggested that such people may particularly benefit from referral to more intensive legal services, such as face-to-face services. They noted, however, that referrals to private lawyers tended to be ineffective, because many of these callers felt they were unable to afford a private lawyer. Thus, referrals to more intensive services for disadvantaged people should ideally include options for free or low-cost legal services.
Thus, legal hotline services should not be regarded as a stand-alone panacea. The usefulness of legal hotline services will depend in part on their ability to provide effective triage and referral. Ideally, legal hotlines should be able to make appropriate referrals both for problems that require specialist legal expertise and for people who are likely to have difficulty understanding and following telephone advice. Legal hotlines may often provide only a first step towards legal resolution and may represent only one of a raft of strategies required to provide holistic justice throughout the community.
There has also been an increasing interest recently in improving access to legal services through video conferencing,(14)
particularly where in-person communication is costly or impractical, such as in prisons and non-urban areas (Forell et al. 2011). A recent review (Forell et al. 2011) identified the potential of video conferencing as a mode of legal service delivery but found that it is largely untested. Thus, the review was unable to draw definitive conclusions about the cost and effectiveness of video conferencing compared to in-person and telephone services. However, it was suggested that the benefits of video conferencing are likely to depend on:
- whether other modes of legal service delivery already exist at a given location
- the relative timeliness, convenience and privacy offered by video conferencing compared to any existing legal services
- the quality and reliability of the video conferencing technology adopted
- the extent to which video conferencing is supported by clients and workers.
The review noted that many legal clients, for reasons of privacy and convenience, tended to prefer both in-person and telephone communication with lawyers, where these were available, rather than communication via video conferencing.
Proximity of legal services
The long distances that some respondents travelled to consult advisers for their legal problems, especially in remote areas, highlight the specific need to improve the accessibility of legal services in less urban areas. Australia has vast geographical areas with sparse populations, where providing easily accessible services of any kind is an enormous challenge. This challenge is underscored by a recent study conducted in NSW which reported difficulties in recruiting and retaining both private and Legal Aid lawyers in certain regional, rural and remote areas (Forell, Cain & Gray 2010). This study concluded that area-specific solutions rather than blanket solutions were likely to be most appropriate, given that retaining lawyers was problematic only in some non-urban areas.
Improving legal services in rural and remote areas of Australia may require multifaceted solutions involving extensions to telephone and internet legal information and advice services, together with additional local services and outreach services. However, given that remote communities in Australia tend to be among the most disadvantaged (ABS 2008c), solutions for improving legal services in non-urban areas cannot rely solely on the expansion of telephone and internet services. For example, 61 per cent of remote Indigenous households across Australia do not tend to use a home landline (ABS & AIHW 2010). In addition, as noted above, disadvantaged people with complex legal problems, low literacy and poor communication skills may often require intensive, quality face-to-face advice and assistance services in order to achieve beneficial legal resolution. Thus, additional local and outreach services may be critical for some disadvantaged people, such as those in more remote areas (Buck et al. 2007, 2008; Forell et al. 2005; Forell & Gray 2009; Genn & Paterson 2001; Pleasence 2006).
A recent systematic review of the literature identified the features that characterise successful outreach legal services to disadvantaged people with complex needs. These features include establishing strong links with the target communities and their support agencies, location in places frequented by the target group, marketing the service, appropriate staffing and resourcing, effective referral systems with support agencies, and appropriate monitoring and review (Forell & Gray 2009). In addition, for disadvantaged people for whom telephone communication is ineffective, it may be worth exploring the use of video conferencing as a means of supplementing in-person outreach services. However, Forell et al. (2011) noted that the uptake of video conferencing in regional, rural and remote areas of Australia has been lower than expected, and that there may be impediments to its success. Thus, any video conferencing initiatives should be carefully planned so that they fill a service gap rather than replicate existing services, and so that they are well supported by target communities. Any such initiatives should also be properly evaluated.
Cost of legal services
Across jurisdictions, some respondents reported that cost was a barrier to legal resolution. Although cost was sometimes reported as a factor constraining respondents from taking any action to resolve legal problems, it was not among the most common constraints in this regard. However, cost was generally the most frequent barrier cited when respondents had tried to obtain advice or assistance from a legal practitioner. These findings suggest two conclusions. First, cost is not a key impediment for many of the legal problems that people prefer to handle outside legal services, such as via self-help strategies or consultation with non-legal professionals. The majority of the legal problems experienced by the public fall into this category and, thus, tend not to be affected by the cost of legal services.
Second, and conversely, cost appears to be a major barrier to resolving the legal problems for which people wish to obtain expert legal advice. These legal problems tend to be the more serious or complex legal problems that people experience. Cost was cited as a barrier to obtaining advice from a legal practitioner in around one-fifth of cases where a legal practitioner was the main adviser for a legal problem. Thus, the cost of services from private lawyers, and the eligibility criteria for receiving free or low-cost public legal services, may need to be addressed for some people in order for legal assistance to be more widely accessible. Similarly, past studies have sometimes cited cost as a barrier to the use of private lawyers (ABA 1994; AFLSE 2007; Coumarelos et al. 2006; Dale 2000, 2005, 2007; Genn 1999; Genn & Paterson 2001; LASNSC 2005; LSNJ 2009; Miller & Srivastava 2001; Schulman 2007; Task Force 2003). In addition, past research has indicated that cost may especially be a barrier to obtaining legal assistance for people in the middle-income range — that is, people who are neither eligible for legal aid nor able to afford costly legal fees. For example, the availability of free or low-cost public legal services has been found to increase the use of lawyers by the poorest group that is eligible for these services (see Currie 2007b; Genn 1999; Genn & Paterson 2001). However, low-income earners who fall outside the eligibility criteria are less likely to use lawyers for the types of problems covered by legal aid (Pleasence 2011).
Note, however, that the perceived expense of legal services by LAW Survey respondents may also, to some extent, reflect inaccurate beliefs that formal legal and dispute resolution services always necessitate substantial cost. This is consistent with the present finding that respondents were often unaware of the free services available under certain conditions from the various public legal services in Australia (see Appendix Table A6.2). Similarly, several recent US surveys have reported that many low-income respondents did not realise they were eligible for free legal aid (ABA 1994; LSC 2007, 2009). Thus, as already noted, increasing public awareness of the available free legal services in Australia may be beneficial. People not eligible for free or low-cost public services may benefit from accurate information on the cost of accessing legal services from a spectrum of providers.
13. This finding was significant in Australia as a whole.
14. The term ‘video conferencing’ refers to all synchronous two-way communication with audiovisual interface, whether via integrated service digital network (ISDN), satellite or internet protocol (IP) with video conferencing technologies. These technologies include videolink, video conferencing and web-based technologies such as Skype and Web-ex.