Enhancing legal capability through information and education
Across jurisdictions, the LAW Survey indicates the need to enhance the legal knowledge and legal capability of the Australian public. First, awareness of some free legal services was consistently poor. Second, in each jurisdiction, many people who ignored their legal problems didn’t know how to obtain assistance. Third, the findings suggested that some disadvantaged groups may fail to recognise that their problems have legal implications and solutions. These groups included people with low education levels in all jurisdictions and people with a non-English main language in some jurisdictions.(5)
Public education is well recognised as a useful component of legal service provision: legal rights are meaningless if people are unaware of them and the means through which they can be effected (e.g. Australian Law Reform Commission (ALRC) 1992; Cass & Sackville 1975; Genn 1999; Kirby 2011; Pleasence 2006; Rush 1999; Scott & Sage 2001; Urbis Keys Young 2002; Women’s Legal Resources Centre 1994; Worthington Di Marzio & Cultural Partners Australia 2001).
Legal information and legal education are complementary strategies for enhancing legal knowledge and capability. Thus, they are key strategies for empowering people to take action for their legal problems, thereby enhancing early intervention and prevention. The aim of these strategies cannot be to convert lay people into de facto lawyers who have the comprehensive knowledge to resolve, on their own, every potential legal problem. A more feasible aim is to equip the general public with sufficient knowledge to recognise their legal needs, and to readily identify where to obtain appropriate legal advice and assistance (see Coumarelos et al. 2006; Genn 1999; Genn & Paterson 2001). Unfortunately, although evidence-based research has informed best practice in delivering consumer education in a number of areas, there is a paucity of such research in the area of legal education (e.g. Flowers, Chodkiewicz, Yasukawa, McEwen, Ng, Stanton & Johnston 2001; Sheth, Mittal & Newman 1999). Thus, there is a pressing need to evaluate the effectiveness of legal education initiatives (Coumarelos et al. 2006). As described below, the LAW Survey findings provide some guidance about useful goals and features of community legal information and education strategies across Australia.
Generic legal information and education
The present widespread experience of legal problems throughout the Australian community suggests the potential value of generic legal information. Generic legal information could be disseminated via schools, media or the internet, and via non-legal professionals, services or agencies that routinely engage the public, such as community health clinics, social service agencies, health and welfare professionals, government and regulatory agencies, non-government organisations and consumer groups (Genn 1999; Macdonald 2005; Pleasence et al. 2004c).(6)
Enhancing knowledge about legal services and first ports of call
The LAW Survey indicates that there is considerable scope for using generic legal information and education to enhance the Australian public’s ability to source appropriate legal services. Across jurisdictions, there were sizeable gaps in knowledge about public legal services. A holistic approach to justice must include an effective mechanism for facilitating the public’s engagement with the available system of legal services through simple and effective gateways. Clearly signposted gateways to legal services can be critical in avoiding referral fatigue and maximising effective resolution (Coumarelos et al. 2006; Pleasence 2006).
Thus, a particularly useful initiative may be to increase the community’s knowledge of useful first ports of call for legal advice, such as generalist legal services or legal ‘triage’ services. Legal triage services provide an initial legal ‘diagnosis’, followed by legal information, advice or assistance, which can be given ‘on the spot’ or via referral to specialist services, as appropriate. In Australia, various CLCs provide generalist legal services. In addition, a number of legal hotlines provide legal triage, such as LawAccess NSW and various hotlines operated by Legal Aid and CLCs. These hotlines vary in their scope and services, such as the extent to which they provide direct caller access to a lawyer, comprehensive referral to legal and non-legal services and follow-up ancillary services (e.g. face-to-face advice and written information). The LAW Survey findings suggest that current awareness of generalist legal services and legal triage services is low. Only about one-third to two-fifths of respondents were aware of CLCs. In addition, awareness of the LawAccess NSW triage hotline by NSW respondents was even lower, at only 14 per cent.(7)
The survey did not specifically examine awareness of the legal advice hotlines operated by CLCs and Legal Aid, although it did examine the overall awareness of these agencies. Thus, while the overall awareness of Legal Aid was high, the extent to which the public is aware of the free legal hotlines operated by Legal Aid remains to be assessed.(8)
To act as effective entry points into legal services, generalist legal services and legal triage hotlines not only must be able to diagnose legal needs and make appropriate legal and non-legal referrals, but must also have high visibility and adequate resourcing (see Mulherin & Coumarelos 2007). Increasing awareness of such useful first ports of call, through, for example, wide-scale advertising or education campaigns, may help to ensure that Australians automatically know the number to call for legal advice, just as they know to ring Triple Zero (000) in the event of an emergency or the Crime Stoppers Australia number to report information on crime.(9)
Thus, well-signposted, effective gateways to legal services may be a critical first step towards enabling the general public to engage with the available system of legal services and, hence, a critical step towards accessing justice. Of course, complete, satisfactory legal resolution will then depend on the adequacy of that system.
Enhancing knowledge through personal networks
Across jurisdictions, personal networks were often used as means to legal resolution. First, informal advice on legal problems from relatives or friends was common. Second, relying on the knowledge of relatives or friends was one of the common ways in which respondents sourced their advisers. These findings indicate the potential benefits of improving legal literacy not only among those who are likely to experience legal problems, but also among the broader community, who may be asked for advice. The value of these established informal personal networks could be enhanced by improving public legal knowledge, so that any advice obtained from relatives or friends is better informed (Coumarelos et al. 2006).
Empowering taking action and seeking advice
Many LAW Survey respondents ignored their legal problems and achieved poor outcomes. They tended to become entrenched in this strategy and continued to achieve poor outcomes for each new legal problem that arose. Thus, the survey underscores the utility of mobilising people to take action, by helping them to identify their legal rights, appropriate courses of action and relevant advice services (see Balmer et al. 2010; Coumarelos et al. 2006; Macdonald 2005; Pleasence 2006).
LAW Survey respondents sought advice for about half of the legal problems they experienced, and in most of these cases they felt their advisers were helpful. Traditionally, satisfaction with client services is used as an indicator of the quality of those services (see Armytage 1996; Oliver 1997). Thus, the present high helpfulness ratings suggest that advisers are generally providing useful services and highlight the value of information and education initiatives that signpost people to appropriate legal services. The present findings are consistent with other recent Australian studies that have reported high satisfaction with lawyers (e.g. Crinyion 2007, 2009; Firth & Munday 2003; IRIS Research 2006, 2008; Roger James & Associates 1998). The LAW Survey respondents who handled problems without seeking expert advice often achieved good outcomes. Nonetheless, information and education initiatives that signpost people to relevant legal services may help to ensure that people appropriately seek expert advice whenever this would be a useful strategy and may help to decrease any reliance on handling legal problems alone due to an unawareness of legal services.
Such initiatives could be used not only to raise awareness of legal services, but also to motivate people to access these services. In some cases, personal constraints rather than a lack of knowledge about services were reported by respondents who ignored their legal problems. For example, respondents sometimes had bigger problems or felt that taking action would be too stressful or would damage personal relationships. Education campaigns about the potential benefits of legal resolution could be used to overcome any personal or social constraints and, thus, to empower people to act.
Enhancing knowledge about multiple pathways to justice
Across jurisdictions, the LAW Survey confirms the many pathways to justice. Legal problems were frequently resolved via consultation with non-legal advisers, who were often the first point of contact for people with legal needs. A wide range of non-legal advisers were used. Legal problems were also frequently resolved via self-help. Importantly, favourable outcomes for legal problems were often achieved via these non-traditional means, without recourse to expert legal advice. Thus, a comprehensive view of legal resolution must extend beyond traditional ‘legal remedies’ to include solutions that fall outside the formal justice system, such as self-help solutions and solutions provided by all the individuals and organisations routinely consulted in response to legal issues (cf. Macdonald 2005; Pleasence et al. 2004c). Legal information and education initiatives should, therefore, promote public understanding that resolution via traditional legal processes, such as court and tribunal proceedings and formal dispute resolution mechanisms, is a rare and last resort, and that there are other common pathways for resolution (Pleasence et al. 2004c). For example, the LAW Survey showed that reaching agreement with the other side often produces good outcomes and is a common manner of legal resolution, particularly for consumer, credit/debt, family and housing problems (cf. Sweeney Research 2011).
Enhancing plain language and online legal information
Across jurisdictions, using websites and self-help guides was one of several common responses to legal problems. In addition, some respondents felt that they failed to obtain adequate, clear information or advice from their main advisers. These findings highlight the worth of ‘plain language’ legal information and advice. Legal information and advice are of value only if they are easy to access, understand and translate into practice. Laws, legal instruments and guides, online legal information and face-to-face legal advice must therefore be framed in the simplest, clearest language (Coumarelos et al. 2006; Forell et al. 2005; Macdonald 2005; Pleasence 2006; Scott 2000). The sizeable proportion of Australians from culturally and linguistically diverse backgrounds also suggests the importance of providing plain language legal resources and advice in the non-English languages used in Australia. The proportion of the population from a non-English-speaking background is highest in NSW, Victoria and the Northern Territory (ABS 2007a).(10)
In addition, the Northern Territory is unique in that it is the only state/territory where Indigenous people represent a large proportion of this population group (ABS 2007a).(11)
Furthermore, the increasing reliance on the internet as part of the current technological revolution suggests the particular benefit of facilitating the use of internet legal services (Coumarelos et al. 2006; Scott 2000).(12)
For example, improving the legal information and interactive services that are available online, increasing people’s awareness of useful legal websites and enhancing their expertise in accessing such websites may all be useful.
Targeted legal information and education
In addition to the value of the generic legal information and education initiatives described above, the LAW Survey suggests the potential value of more targeted legal information and education strategies. One-size-fits-all education strategies tend to be less effective than strategies tailored to address the specific issues faced by particular people at particular times (Balmer et al. 2010; Barendrecht 2011; Buck et al. 2008; Combined Community Legal Centres Group NSW 2004; Coumarelos et al. 2006; Currie 2000; Federation of Community Legal Centres Victoria 2010; Flowers et al. 2001; Giddings & Robertson 2003b; Goldie 1997; Hunter et al. 2009; Kirby 2011; Lawler et al. 2009; Macdonald 2005; Public Legal Education and Support Task Force (PLEAS Task Force) 2007; Public Legal Education Network (Plenet) 2009, n.d.; Scott & Sage 2001). The tailoring of legal information and education initiatives for specific legal problems and demographic groups is discussed later in this chapter.
Other components of holistic justice
Legal information and education strategies should not be presumed to be universal service solutions. The finding that people sometimes felt they did not receive clear, adequate advice may sometimes have reflected low capacity to understand legal information, rather than poorly framed advice. A number of authors have argued that some people have low legal capability, due to literacy, language or communication problems, and that disadvantaged people are particularly likely to have poor legal knowledge and capability (Balmer et al. 2010; Buck et al. 2007; Casebourne et al. 2006; Day et al. 2008; Forell et al. 2005; Genn 1999; Grunseit et al. 2008; Karras et al. 2006; Parle 2009; Pleasence 2006). As a result, legal information and education are often only preliminary steps towards legal resolution. They will often be insufficient for effective, complete legal resolution for all people and should not be regarded as cheap alternatives to legal advice and assistance (Genn 1999; Genn & Paterson 2001; Giddings & Robertson 2003a; Pleasence et al. 2004c). For example, a number of authors have argued that plain language and online legal information resources, no matter how ‘state of the art’, may be of limited utility for certain legal problems and for population groups with low legal capability (see Assy 2011; Balmer et al. 2010; Barendrecht 2011; Giddings & Robertson 2003a; Hunter et al. 2007; Lawler et al. 2009).
Thus, legal information and education should be seen as constituting only one component of a holistic approach to justice that additionally includes a myriad of more targeted and tailored service initiatives. For example, more intensive and integrated service provision has been propounded for people with low levels of legal capability and for people with complex, serious legal problems (see Coumarelos et al. 2006; Forell et al. 2005; Genn 1999; Pleasence 2006; Scott 2000; Scott & Sage 2001). In addition, it is important that the reach and effectiveness of legal information and education strategies are carefully evaluated (Giddings & Robertson 2003a; Hunter et al. 2007; Lawler et al. 2009).
5. Unlike the other disadvantaged groups surveyed, people with low education levels and people with a non-English main language typically reported low rather than high prevalence when significant relationships with prevalence were found. These low reporting levels suggest the possibility that these people may not always recognise their legal problems. In Australia as a whole, people with a non-English main language had significantly lower prevalence according to a number of measures.
6. The use of non-legal professionals for the dissemination of legal information is discussed in more detail later in this chapter, in the ‘Non-legal advisers as gateways to legal services’ section.
7. See Figure 6.8 in the LAW Survey report for NSW.
8. For further details about the services provided by CLCs, Legal Aid and LawAccess NSW, see the ‘Need for integrated legal services’ section later in this chapter and Appendix Table A6.2.
9. The effect of increasing the demand for legal services is discussed later in this chapter, in the ‘Managing demand, resources and evaluation’ section.
10. According to the census (ABS 2007a), the proportion of the population aged 15 years or over who speak a non-English language at home and do not speak English very well is 10–11 per cent in NSW, Victoria and the Northern Territory compared to only 2–6 per cent in the other states/territories.
11. People who speak a non-English language include 44 per cent whose main language is an Indigenous language in the Northern Territory compared to less than three per cent in the other states/territories (ABS 2007a). Thus, although the Northern Territory, NSW and Victoria all have a high proportion of people from a non-English-speaking background, only in the Northern Territory does this group include a relatively large percentage of Indigenous people.
12. Note that during 2008–2009, three-quarters (74%) of Australians aged 15 years or over had accessed the internet in the previous 12 months (ABS 2009d). Home was the most popular location to access the internet (68%), followed by work (35%) and a neighbour’s, relative’s or friend’s house (25%)