Note: the original hard copy of this report is 343 pages .

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Access to justice and legal needs. Stage 1: public consultations   

, 2003 Summarises the responses received as a result of submissions and consultations on legal needs and barriers to access to justice.


Executive summary


This report summarises the responses and input received by the Law and Justice Foundation of NSW during the consultation process conducted as part of Stage 1 of the Access to Justice and Legal Needs Project.

During the consultation process, the Foundation received submissions from 28 organisations and four individuals. In addition to these written and oral submissions, the Foundation received a range of other material including copies of articles written for journals, submissions to similar previous inquiries and published reports. These were either expressly referred to in submissions or in consultations, or supplied to the Foundation as a submission on behalf of an organisation. The Foundation conducted seven roundtable forums for legal and community organisations and a number of consultations with selected individuals.

The Foundation held a one-day Access to Justice workshop attended by 44 invited participants from various socially and economically disadvantaged groups, community organisations, legal service providers, professional bodies, legal and social researchers, administrators and policy makers. Staff of the Foundation also attended and participated in eight conferences or forums relating to Access to Justice and Legal Needs.

The Foundation has aimed to record as fully as possible the substance of the responses received in this consultation stage. Consequently, although not strictly part of the brief for Stage 1, for completeness the report includes some recommendations proffered by participants in the consultation process, as well as areas identified by participants in need of further in depth research and analysis. It should be noted that the Foundation has not undertaken any evaluation of the accuracy of the responses received.

The consultation process identified a number of groups as being economically or socially disadvantaged in terms of their ability to access the law and justice. These were:


Obtaining Legal Assistance

Barriers for people who are socially and economically disadvantaged

Many of the barriers identified by contributors are relevant to all disadvantaged groups in the community. These included:


Specific barriers to obtaining legal assistance which relate to particular disadvantaged groups as identified by contributors are as listed below:

People with disabilities


For people with an intellectual disability:
For people with a physical disability, physical access to legal advisers

For people with sensory disabilities:


For people with psychiatric disabilities, communication barriers

For people with acquired disabilities, issues of prejudice, low self-esteem, fear of discrimination and retribution, and communication problems

People with multiple disabilities were identified as being particularly vulnerable, with few specialist legal services available to assist such people.

People from culturally and/or linguistically diverse backgrounds


Indigenous Australians
Children and young people
Elderly people
People in rural, regional and remote areas
People with low levels of education and literacy
Women
People living in institutions
People on low incomes

The most significant identified barrier to obtaining legal assistance for people on low incomes related to the high cost of legal services. The operation of legal aid means test guidelines was considered to be a major factor in denying access to legal assistance for people on low incomes (including part-time employees, self-employed people and low paid full time employees) who could not otherwise afford the services of a private solicitor.

People on low incomes were seen as disadvantaged in terms of the level of legal assistance they could access, when opposed to litigants with significantly more resources.

Homeless people


Men

It was reported that men who are respondents in child support matters or Apprehended Violence Order applications are often unable to secure legal aid for representation, and are therefore disadvantaged in the proceedings.

Mechanisms and innovations to assist disadvantaged people

The following services were identified by contributors as enhancing access to legal assistance for disadvantaged people:


Specific services relating to particular disadvantaged groups were identified as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
Elderly people
People in rural, regional and remote areas
Women
People living in institutions

Legal Aid NSW Prisoners Advice Service and Video Conferencing Scheme

Local Courts outreach services to prisoners and patients in psychiatric institutions.

People on low incomes

Services provided by community legal centres, Legal Aid NSW, tenancy advice services, pro bono programs and Chamber Magistrates are available to many people on low incomes.

Homeless people

The Legal Counselling and Referral Centre operating as part of the work of the Rough Edges ministry at St. John’s Anglican Church in Darlinghurst, provides legal assistance to homeless people in inner city Sydney and the Kings Cross/Darlinghurst areas.

Barriers for people who are socially and economically disadvantaged

Many of the barriers identified by contributors as relevant to all disadvantaged groups in the community included:


Specific barriers to effective participation in the legal system relating to particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
Elderly people

Physical access issues, poor audibility and courtroom environments were the main barriers for effective participation in the legal system identified for elderly people.

People in rural, regional and remote areas


People with low levels of education and literacy
Women
People living in institutions and people released from institutions

Identified barriers to effective participation in the legal system for people living in or released from institutions included distrust and low expectations of the system’s capacity to provide redress for wrongs or recognition of rights.

People on low incomes


Homeless people

The principal barrier to effective participation in the legal system identified for homeless people was lack of confidence in the legal system that their rights will be respected.

Effective participation in the legal system

Mechanisms and innovations to assist disadvantaged people

The following services and initiatives were identified by contributors as enhancing effective participation in the legal system for disadvantaged people:


Specific services and initiatives which assist particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
People in rural, regional and remote areas

It was identified that visits and circuit hearings by courts and tribunals enhance participation in the legal system by people in rural, regional and remote areas.

Women


Homeless people

It was identified that organisations which provide personnel to attend court with people who are homeless to support them through the court process, assist their participation in the legal system

Obtaining assistance from non-legal, advocacy and complaint handling bodies

Barriers for people who are socially and economically disadvantaged

Barriers to obtaining assistance from non-legal bodies which are relevant to all disadvantaged groups in the community, as identified by contributors, included:


Specific identified barriers to obtaining assistance from non-legal bodies for particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
Elderly people
People in rural, regional and remote areas
Gay, lesbian and transgender people

Issues of bias and power imbalances in negotiation in ADR processes were identified as barriers for gay, lesbian and transgender people.

Women

In relation to ADR processes, issues of gender bias, stereotyping of women, aggressive negotiation styles, lack of easy access to dispute resolution centres and lack of information about dispute resolution processes were all identified as barriers for women.

People living in institutions and people released from institutions


People on low incomes

In relation to ADR processes, issues of power imbalances in negotiation, lack of economic bargaining power in negotiation and lack of familiarity with dispute resolution processes were identified barriers for people on low incomes. Low-income people who have restricted use telephones are not able to access complaint-handling services through free call 1800 numbers.

Homeless people

Prejudicial attitudes of service providers towards homeless people was identified as a barrier to accessing non-legal advocacy and support.

Men

The withdrawal of counselling services for parents post separation was identified as presenting a barrier for men in accessing non-legal support.

Mechanisms and innovations to assist disadvantaged people

The following services and initiatives were identified by contributors as enhancing access to non-legal assistance for disadvantaged people:


People with disabilities
People from culturally and/or linguistically diverse backgrounds
Indigenous Australians

Aboriginal Community Justice Groups

ADR processes which are sufficiently flexible to accommodate the particular needs of Indigenous people, and which overcome some of the inappropriateness of the formal justice system

police

Victims of Crime Bureau Aboriginal Project Officer.

Children and young people


Elderly people
People in rural, regional and remote areas
Gay, lesbian and transgender people

ADR processes were identified as mechanisms which may offer lesbians and gay men the possibility of avoiding many of the problems that they perceive exist with the formal justice system. In addition, the privacy afforded by many ADR processes was identified as an attractive feature for members of sexual minorities.

Women

ADR processes such as mediation were identified as being attractive to women, as they provide a less formal way of resolving disputes and also provide a method of dialogue.

The Local Courts Domestic Violence project, which seeks to ensure victims receive appropriate support and referrals, was also identified as a valuable service.

People living in institutions

Organisations and charities such as St. Vincent de Paul, which undertake prison visits, were identified as services which can provide some non-legal support for prisoners, as were teachers, educators and counsellors who visit prisons.

People on low incomes

ADR services were identified as often being the only practical dispute resolution option for people on low incomes.

The Public Trustee NSW was also identified as providing services for people on low incomes.

Homeless people

The importance of consultative, case management communication strategies across professions was identified as an important model of service provision for homeless people, so that issues of housing, health, drug dependency and employment can be addressed in a cohesive manner.

Participation in law reform

Barriers for people who are socially and economically disadvantaged

Barriers to law reform common to several disadvantaged groups as identified by contributors included:


Specific barriers to participation in law reform processes for particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians

Lack of adequate consultation with Indigenous communities was identified as a significant barrier for Indigenous Australians participating in law reform processes.

Children and young people

The political marginalisation of children and young people and the absence of a national advocate for children’s rights were identified as barriers to effective participation in law reform processes for children and young people.

People in rural, regional and remote areas

Physical distance, and the location of many law reform commission inquiries, parliamentary inquiries and special commissions of inquiry in city locations, were significant barriers identified for people in rural, regional and remote locations participating in law reform processes.

People with low levels of education and literacy

Use of formalised language in discussion papers, reports and hearings was identified as a barrier for people with low levels of education and literacy participating in law reform processes.

Gay, lesbian and transgender people

The reliance on mediation, and the consequential reduced possibility of achieving change through litigation was identified as a barrier for people in sexual minorities seeking to achieve changes in the law.

Women

Inadequate funding for women’s organisations was identified as a barrier for women participating in law reform processes.

People living in institutions and people released from institutions

Sensationalised media reporting of prison issues was identified as a barrier for prisoners and ex-prisoners effectively participating in systemic reform.

People on low incomes

Business and corporate incentive to settle claims by people on low incomes which may involve adverse publicity, was identified as a barrier to effective law reform for such people.

Mechanisms and innovations to assist disadvantaged people

The following services and mechanisms were identified by contributors as enhancing access to law reform processes:


People with disabilities

Mechanisms which assist people with disabilities participate in law reform processes as identified by contributors included:


People from culturally and/or linguistically diverse backgrounds

The Refugee Council of Australia has developed a kit to assist individuals and community organisations become more effective law reform advocates on issues relating to refugees and asylum seekers.

Indigenous Australians

Consultation with Indigenous organisations and representative bodies, such as the Aboriginal Justice Advisory Council, as well as Indigenous representation on advisory committees were identified strategies employed by law reform commissions to encourage effective participation by Indigenous people in their processes.

Children and young people

Youth advocacy bodies and organisations such as the Youth Justice Coalition, were identified as avenues by which the views of young people and children can be presented to law reform commissions and parliamentary inquiries.

Particular law reform commission inquiries occasionally produce issues papers and reports specifically aimed at children and young people, as well as undertaking consultation strategies targeting children and young people.

People in rural, regional and remote areas

Law reform commissions indicated their preparedness to accept verbal submissions by telephone, as well as undertaking public consultation forums in rural and regional areas, to enhance access for people in those areas.