This document reports the proceedings of an Access to Justice Roundtable held at NSW Parliament House on 10 July 2002 by the Law and Justice Foundation of New South Wales and the Social Justice Project, University of New South Wales. It includes the papers presented at the Roundtable, an edited report of discussions at the afternoon Working Groups and a conclusion that draws together the themes of the day’s discussion.
The aims of the roundtable were to:
Participants were invited as individuals from a wide range of backgrounds, from both inside and outside the justice system. The Roundtable brought together people from the community legal sector, representatives and advocates for economically and socially disadvantaged people, front-line legal and justice institutions, government policy makers, welfare organisations and researchers. A list of participants is at Appendix A.
A copy of the Program is at Appendix B. This report contains the written papers provided by speakers after the event. While two of these are edited transcripts, others may differ to some extent from the oral presentations. The report also contains accounts of the working group discussions held in the afternoon.
In writing these, the Foundation has aimed to reflect the substance of these as fully as possible. The purpose of this report is to present the comments and views of the speakers and participants, and the Foundation has neither entered into the question of whether statements made are accurate nor endorsed the views and judgements expressed by participants.
The day began with opening remarks by Geoff Mulherin, Director of the Law and Justice Foundation. He was followed by Sylvia Scott, an Elder of the Eora People, who gave the welcome to country. Julia Perry from the Foundation outlined the aims and structure of the Roundtable as described in the introduction to this report. This introduction was followed by Louis Schetzer’s description of the Foundation’s Legal Needs and Access to Justice Project.
In his address Justice Ronald Sackville, of the Federal Court of Australia, outlined various meanings of ‘access to justice’ and said that the use of complicated language, discrimination and inadequate resources were some of the main barriers to justice for disadvantaged people in Australia. Justice Sackville listed four assumptions which have underpinned the access to justice movement. These assumptions were:
In the session ‘Perspectives from the Community’, Joanne Selfe, a Gamilaroi woman, spoke about how Aboriginal people see the law as a possible means of establishing new rights and protection for them against long standing discrimination by other Australians. She stressed that the law needs to respect Indigenous people and culture, and favoured approaches that would take account of the complex historical and social bases of their disadvantage.
Barry Fowler, from Broken Hill, described difficulties for people in rural and remote regions of NSW. He discussed various barriers to obtaining information that particularly affect people in remote areas. He also mentioned the difficulty in recruiting and retaining professional service providers, such as lawyers. He said there was a cultural sense that they felt shut out from being able to participate in the justice system in the way that people in the city can.
Phillip French discussed how the legal system has been a site of great injustice for people with disabilities. He talked about the disadvantages for them as people with rights, as victims of crime, as suspects and offenders, as civil litigants and as participants in the justice system, for example as legal professionals and as members of juries.
The session ‘Options for Reform’ provided overviews of recent public reforms to improve access to justice for disadvantaged people and ideas for broadening the way we see the relationship between the justice system and the community it should serve.
Richard Funston, Director of Family and Civil Law in the New South Wales Legal Aid Commission, talked about the Legal Aid Commission’s work in providing information and advice through telephone services, video conferencing, internet services and publications. He described new community outreach programs and better co-ordination with Aboriginal Legal Services. Many of these measures are aimed at physical and cultural reasons that prevent people accessing services, such as the Video Conferencing Pilot scheme that helps people in rural and remote regions, as well as those who for cannot travel to visit legal services.
Jenny Bargen, Director of Youth Justice Conferencing in the New South Wales Department of Juvenile Justice, discussed some constructive and co-operative approaches in civil and criminal law. These are alternatives to the usual adversarial approach, where two parties oppose each other. She described how Youth Justice Conferencing had been developed, what it has achieved and what still needs to be worked out and improved. She encouraged workshop participants to seek out and support alternatives to adversarial methods in the civil and criminal justice systems.
Gordon Renouf’s paper discussed the limits in current ways of thinking about access to justice for disadvantaged people in the community. Current debates focus on access to the legal system. He said they were based on a narrow model of legal services that is directed at an individual with a ‘one-off’ problem requiring advice or court representation. He suggested that these approaches did not allow disadvantaged groups to participate in defining their legal needs or formulating legal rights and responsibilities. Alternative approaches should centre on the client and the disadvantaged social group. He argued that, in order to promote a just and effectively democratic society, we should make more use of the broad range of skills in the communities where legal services were operating. He talked about a project developed by the Top End Women’s Legal Service which showed how effective legal services can benefit from building relationships between client groups and service providers, where different points of view are heard and influence the way the services are planned and operate.
The participants then separated into four working groups to consider particular areas of interest. The working groups on ‘Access to Legal Information’ and ‘Access to Legal Advice’ both discussed the difference between legal information and advice. Both felt that service providers are strongly conscious of the need to make the distinction because of accountability, duty of care and liability. However, it is often confusing or frustrating for people with a legal issue who are in need of advice but have access only to information.
The group addressing ‘Access to Legal Information’ discussed practical ways to get information to particularly socially isolated groups. Poor reading and writing skills and low English language skills were seen as barriers to getting information. Participants also exchanged views on various sources of legal information, such as libraries and websites, legal training for non-lawyers and community legal education. They raised issues relating to referral and the difficulty of knowing where to refer people and how to avoid them entering a ‘referral merry-go-round’.
The Advice group discussed technological advances in service provision that might be able to reach many more people, such as phone advice and legal websites. They were careful to note that disadvantaged people with the highest need are the least likely to have access to those means. These forms of communication, however, are useful for community workers and others who may be able to translate and provide other assistance to the individuals who need help. In addition to identifying language as a barrier for non-English speaking people, the group also highlighted the lack of cultural awareness and the need for personal contact in legal service provision.
The working group on ‘Alternatives to Traditional Approaches in Civil Law’ talked about the good and bad points of alternative dispute resolution (ADR) noting problems such as:
The fourth working group was ‘Alternatives to Traditional Approaches in Criminal Law’. The group defined traditional approaches as adversarial and focused on punishment. As in the Civil Law group, this group generally approved of some of the new alternatives, such as diversionary programs and restorative justice, and also had some criticisms. They thought that police needed to be made more accountable when they used discretion over whether to direct young people away from court, particularly young people of different racial backgrounds. The group generally preferred alternative over adversarial processes. They also thought that alternatives worked better when they were culturally sensitive, consistent and well funded. In the discussion about penalties the group noted that they do not affect rich and poor people in the same way and this should be taken into account in the sentencing process.
The Roundtable aimed to provide an opportunity for different perspectives to be voiced on access to justice issues. Those who work within the justice system were asked to think about how the law and justice system appears from an outside standpoint; and to participate in sharing their expertise and knowledge in identifying barriers to access and fairness and in developing ideas for improvement. We also sought views, experiences, perspectives and ideas from individuals who are not lawyers and who work in community organisations outside the justice system, as well as the experiences of their clients. It is always valuable to hear community perspectives, and to be aware of how much (or how little) the public knows and understands their rights, their obligations and how to make the best use of the system.
Issues of access to justice are broad and a one-day workshop can only scratch the surface of the main themes. Nevertheless, the discussions provide an indication of what community advocates see as the most pressing issues affecting disadvantaged people in various circumstances. We hope that everyone participating either learned something or gained a new insight, through hearing the diverse views of others. We also hope that this report will stimulate debate and encourage the processes of further research, advocacy and reform.
The Access to Justice and Legal Needs Project
The role of the Law and Justice Foundation of NSW is to contribute to the development of a fair and equitable justice system which addresses the legal needs of the community, and to improve access to justice for the community, particularly for socially and economically disadvantaged people.
In order to achieve this role, the Foundation has embarked on an ambitious project, seeking to identify the access to justice and legal needs of economically and socially disadvantaged people in NSW. Over the next two years the Foundation will undertake extensive consultations, a comprehensive literature review, and thorough and empirical research activities as part of the project. The results of this exercise will form the guiding priorities and principles for the Foundation in carrying out its various functions of research, information collection and dissemination, community education and project sponsorship.
Before I describe the project in more detail, I think it is useful to look at the terms 'access to justice' and 'legal needs'.
Defining Access to Justice and Legal Needs
The phrases 'access to justice' and 'legal needs' have been used in several contexts and inquiries over the last three decades. In reviewing these studies, it appears that there is no generally accepted understanding of the terms. Notions of equality of access to legal services, equality before the law regardless of race, ethnicity, gender or disability, affordability, efficiency, understandability, and effectiveness, have all been important concepts in previous access to justice inquiries.
The term 'legal needs' also raises certain conceptual difficulties, as often an individual confronted with a particular problem which raises legal issues will not identify it as a 'legal problem'.
The approach taken by Hazel Genn, in her 1999 Paths to Justice studies in the UK,1 provides a useful model in which 'legal needs' is considered in terms beyond the use of legal services to achieve court based solutions. These studies looked at the concept of the 'justiciable event'—that is, a matter experienced by an individual which raises legal issues, whether or not it was recognised by that individual as being 'legal' and whether or not any action taken by the individual to deal with the event involved the use of any part of the justice system.
This acknowledges that people's real 'need' is for the ends which legal services can bring about, whether it be specific legal remedies, a form of some reconciliation with another party, or, quite simply, a sense of fairness, or closure from some dispute.2 However, either by preference or circumstance, an individual may use alternative methods of achieving these ends which do not involve recourse to the formal legal system.
The Foundation's Access to Justice and Legal Needs Project
Sensitive to these conceptual issues, the Foundation's project will seek to examine the accessibility of a range of dispute and problem resolution options for disadvantaged people. In particular, the project is to examine the ability of disadvantaged people to:
Stage One of the project focuses on obtaining an overall picture of the legal and access to justice needs of the community, and lays the groundwork for the various research initiatives which will follow. It will include undertaking a comprehensive literature review and consultation process, as well as calling for submissions from interested agencies and individuals. Today's forum is one of several roundtable forums which will be conducted throughout the first stage to obtain this overall picture.
In addition, we will be undertaking a comprehensive review of data collected from various legal assistance and complaint handling organisations and agencies. Whilst obviously the different approaches and methods of data collection across agencies will limit the extent to which analysis and comparisons can be made, such an exercise will provide an indication of the problem matter types for which people seek solutions, across a range of demographic criteria. In addition, it will glean information concerning pathways and destination of referral for assistance.
The second stage will involve extensive quantitative and qualitative research into particular disadvantaged groups within the population.
The quantitative research will centre around undertaking comprehensive legal needs assessment surveys in a number of disadvantaged localities across NSW. At this stage it is anticipated that up to six localities will be selected, on the basis of the Australian Bureau of Statistics Indices for disadvantage. The regions selected will also reflect a sample of inner urban, outer urban, regional, rural and remote communities.
Whilst the general population legal needs assessment surveys undertaken in the UK as part of the Paths to Justice studies have provided a useful model for consideration, the Foundation considers that conducting needs assessment surveys at the local level provides a greater opportunity for working with local and community organisations. Importantly, it will also provide a ready indicator for decision makers as to the types of services required at the local level.
As well as the local quantitative legal needs surveys, the Foundation will also undertake a series of in-depth studies of the particular needs for specific disadvantaged groups. These will each involve a combination of specific literature reviews for the disadvantaged group concerned, analysis of submissions received during the first stage, and conducting a series of specific focus groups and consultations with people from various disadvantaged groups, as well as service providers and intermediaries. The Foundation will also look to work with specialist organisations involved in service delivery to particular disadvantaged groups to assist in assessing the needs of those groups of people.
We recognise that in recent years, there have been a number of inquiries both at the State and Federal levels into particular access to justice issues for certain disadvantaged groups. These include reports from the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Human Rights and Equal Opportunity Commission which provide extensive information regarding the access to justice and legal needs for certain disadvantaged groups within the population.
These reports will be extremely important in ensuring that appropriate use is made of existing knowledge, so that there is no duplication of other recent studies.
The combination of quantitative study and qualitative analysis of specific disadvantaged groups allows for a comprehensive approach. Quantitative surveys alone would give insufficient attention to certain groups whose numbers within a sample may be too small for any meaningful analysis, or by virtue of their disadvantage, may be missed either disproportionately or completely by such a quantitative survey. Qualitative analysis assists in overcoming this problem. The quantitative survey analysis will allow for analysis of differing trends across several regions, and also allows for some limited analysis of people who have multiple disadvantages.
The third stage of the project will involve an assessment of the feasibility and resource implications of undertaking a state-wide general population survey of legal needs, similar to those undertaken for the Paths to Justice studies in the UK. Undertaking such a general population study is an option, but its implementation will be dependent on the feasibility study.
Based on the various stages and ingredients of the project, the Foundation is looking to develop a statement on the particular legal and access to justice needs of socially and economically disadvantaged people in NSW. This process will also include the production of interim reports detailing the legal and access to justice needs of different disadvantaged regions and groups of people based on the assessments undertaken.
As part of the project, the Foundation intends to develop a database identifying information resources, studies and literature relating to issues of access to justice and legal needs for disadvantaged people. Such a resource would be accessible to the wider community, and would be a valuable resource for researchers, policy advisers, and community organisations wishing to research particular legal needs and access to justice related issues.
In addition, we will also be developing resources which specialist and generalist community organisations will find useful in assessing the legal needs of their relevant communities. The project will aim to develop a model of local needs assessment which will provide a basis for ongoing analysis of access to justice and legal needs of disadvantaged communities in the future. It is our hope that this will be a resource which can be used by a range of government and non-government organisations.
The Foundation acknowledges that this is a challenging and ambitious project. However, the importance of undertaking such a project using innovative and empirically reliable processes cannot be understated, and we hope that the project will assist in informing the policies and practices of government, non-government and community agencies involved in legal service delivery and seeking to improve access to justice for disadvantaged people. In addition we hope that this project will result in local and community organisations being better equipped to assess the legal and access to justice needs of their own constituent communities themselves.