Access to justice roundtable ( 2003 ) Cite this report
Introduction: Access to Justice
Like any constructed phrase used in political or social debates ‘access to justice’ means different things to different people at different times. The question arises whether its multiple associated meanings undermine its usefulness. One of its weaknesses — that it draws our attention too much to access and barriers to access and not enough to justice — may mean it is inimical to the interests of the poor and excluded seeking justice. As Andrea Durbach of the Public Interest Advocacy Centre has suggested, some kinds of work have been ‘misguided in that [they have] tended to highlight access to justice as opposed to justice itself’.1
Many access to justice discussions are concerned with improving the availability of affordable legal services (advice and representation and/or ‘alternative’ dispute resolution services) to people who have an existing legal problem. The model access to justice question is how to provide legal assistance to a person who wants to ‘resolve a dispute’ or to defend or assert a right in a court. Courts and tribunals are perfectly natural places for lawyers, but one that most other people would like to avoid. As one respondent to a recent UK study said, ‘I’d like more access to justice but less access to the courts’.2
Fine tuning the legal system and improving the ways in which we fund and deliver the existing narrowly conceived ‘legal aid’ services are worthwhile and important, but discussion about increasing access to justice — or moving towards equal justice — does not logically need to centre around those topics.
The President of the Canadian Law Reform Commission, Roderick Macdonald, recently said: ‘I ... once believed that achieving access to justice was essentially a matter of removing barriers to courts such as cost, delay and complexity. Now I no longer see the objective in purely structural terms. Rather the challenge runs much deeper. It is to rethink our attitudes about what law in a modern, pluralistic society actually comprises’.3
Concerns about ‘equal justice’ gained a great deal of momentum in the 1960s and 1970s. In part this reflected an acceptance that people needed legal assistance to obtain the benefits promised by the welfare state.4 Legal aid in the US and the UK expanded from assistance in criminal and divorce matters to include assistance to pursue social and welfare rights. At the same time there was a considerable focus within the equal justice movement in the US and later in Australia on more transformative approaches that sought to use the legal system to promote social justice. Later debates, however, became mainly concerned about providing lawyers to assist individual poor clients understand the law, and to take matters to court if necessary. Central discussions concerned how best to deliver legal aid. They focussed on funding and the relative virtues of salaried solicitors and the private profession. Logically associated themes such as the high transaction costs of legal services, the barriers to using courts and alternative ‘dispute resolution’ processes became areas of concern from the late 1980s. These are important elements of the ‘access to justice’ agenda that took hold in Australia in the 1990s. So too are preoccupations with measuring legal needs and making best use of new technology, both of which have held the attention of government policy makers in recent times.5
In this paper I argue that there are three significant things missing from the access to justice debates as I have just described them.
First, there is insufficient concern for the points of view and voice of disadvantaged social groups within the community. There is a lack of attention given to the understandings of individuals and groups about when they might benefit from legal services. Moreover debate often fails to consider the interests of particular social groups in the identification and definition of legal needs and in the development of services to meet those needs.
Similarly, the right of poor and excluded people to participate in societal decision making including in the definition of rights that affect them — that is to participate in the debates about the formulation of law and the processes of governance — is rarely taken seriously.
Finally, we have too narrow a conception of the appropriate legal and related services that might be made available. This is not just a comment on the practical neglect of long argued for features of legal aid practice such as community legal education or ‘preventative services’.6 Rather there would be value in developing a different relation between service providers and clients and disadvantaged groups within communities.
To do this we need to develop and maintain an expansive understanding of the role of law in assisting communities. Among other things we need to pay more attention to the transactional, creative and facilitative aspects of law and lawyering.7
I conclude that organisations intent on providing legal services to the poor and excluded need to be closer to the communities they work with. To do this they would benefit from adopting a community development approach, to have a broad concept of legal services and to work in close collaboration with people and organisations with other capacities.
Clients' Understandings of their Rights and Needs
For a period of eight years in the 1970s and 1980s a large group of migrant women from the Wollongong area pursued a claim in relation to the discriminatory employment practices of Australian Iron and Steel.
For them to succeed — as they eventually did in various ways — it was not enough that they had access to lawyers to provide legal advice and represent them in court. It was important that the women:
Several of these conditions — all essential to the ultimate success of their claim — would not be met by the normal range of services offered by legal aid agencies through private practitioner grants and the standardised services offered by salaried solicitors. Moreover the need for legislative change and the need for support for long legal battles do not normally register as the kind of legal needs investigated by government legal needs surveys.
Knowing about Rights
There is rarely sufficient attention given to the real situation of client communities and their relationships with the law. An accurate understanding about the likely usefulness of the law and legal services is an important prerequisite for using legal services. The extensive empirical research undertaken for the Paths to Justice project in the UK found that one of the main reasons people who could be assisted by the law do not find a remedy is that they don’t know, or don’t believe, that the law might be able to assist them. They have ‘a sense that nothing could be done about their problem — which flows from the generally low levels of understanding about legal rights and procedures’.9
This study was based on a survey of 4000 respondents. It sought to establish how often members of the public are faced with problems for which a legal remedy exists and whether and where they go for help. It found that about 40 per cent of the population had experienced one or more civil problems or disputes over the previous five years. And about 40 per cent of those facing problems either took no action at all or failed to obtain advice.
That it is desirable that members of the community know their rights is widely acknowledged. A typical approach is to focus on what we, the access to justice industry, can do to increase community knowledge — for example by distributing information and undertaking education in various forms. No doubt this is appropriate and effective when done well, but far from guaranteed to create widespread understanding of when the law might assist. Alternatively we look to other outsiders, such as the formal education system, to undertake this work. One suggestion is that the focus — the starting point — should be on the particular groups within communities that may or may not want information and education about the legal system. Such groups need opportunities to take advantage of ways of acquiring knowledge which they perceive to be relevant and useful to them, and to decide whether or not the law and the legal system are tools that they can use to advantage in their particular circumstances.10 A role for legal service organisations is thus to help create the conditions for particular disadvantaged social groups to make these assessments.
Who Defines Legal Needs?
While the idea of measuring legal needs in some formal way has been around for a while, the last ten or so years has seen a great deal of attention being paid to this subject in the UK, Canada and Australia.11 The problem is that, at least in Australia, the processes used to assess need almost by definition guarantee that the informed views of disadvantaged groups in the community cannot be obtained.
Legal needs are not objectively sitting out there waiting to be discovered. Statements about legal needs often assume or claim that identifying particular needs or the most pressing need is unproblematic. This approach is an example of the common way in which talk about social needs is framed: by asking and then answering a question such as ‘should the State undertake to satisfy the social or legal needs of a given constituency?’12 This question takes for granted the definition of the needs in question. It obscures the fact that the definition of needs is itself a political stake.13 Needs determination based on national statistical data and the like de-politicise need interpretation by substituting administrative processes of need definition (which exclude involvement of the people whose needs are to be met) for participatory processes of collective self-definition and needs interpretation.
Moreover, the definition of legal needs is not something that can be readily determined by anyone—government, service provider, researcher or the relevant community—in a single snapshot. This is because the knowledge, understanding and point of view of the outsider will differ from the members of the relevant community and vice versa.14
Finally, if we are to allow the client community to be involved in self-definition and needs interpretation, a longer term relationship must be built between the relevant community and those with relevant knowledge and skill. The community and the experts will have different understandings of the world and different understandings of the possibility of using legal tools and techniques to the benefit of the community. There will also be an imperfect level of trust of the experts by the community. The two must develop a relationship where each begins to understand the world view and expertise of the other. All going well, as the relationship develops, the experts will learn more and more about the issues facing the community and the community will learn more and more about what the experts have to offer. Once this is done each group will have new realisations about, and greater faith in, the things that might be useful to do using the skill of the experts.
Obviously it will rarely be appropriate for this relationship to be built up solely around the question of research into legal needs. Normally the relationship will involve the initial provision of some kind of service—possibly limited to advice or casework services, but more likely to be effective if it includes the provision of information, education or training. Even better if the experts explicitly acknowledge that they have something to learn from the community—at the very least they should be consciously trying to learn how best to provide services to the particular client group.
The work of the Aboriginal Women’s Outreach Project of the Top End Women’s Legal Centre over the past six years is an example of this kind of process.
Case study: meeting the legal needs of women from three Top End Aboriginal Communities
Concern about violence inflicted on Aboriginal women has emerged to take its place in the consciousness of policy makers and as a subject for an energetic and sometimes difficult debate. But what do the women affected believe are their needs? In 1992 staff of the Darwin-based Domestic Violence Legal Help service observed that Aboriginal women in remote communities were not getting the same level of service as people who lived in Darwin, let alone the higher level of service that various factors including remoteness and language issues seemed to require. A consultation and education project was undertaken to gain more information about their needs and views.15
Drawing on this work, the Top End Women’s Legal Service (TEWLS) established a pilot project working with Aboriginal communities. The project committed a lawyer and a Darwin-based Indigenous legal worker to spend a number of days each month in each of three communities. More importantly the project employed several local women part time.
A process of both formal and informal information exchange began; Indigenous and non Indigenous staff of the service learned more and more about the needs of their clients and the basic reality in which they lived and to which they responded—the local Indigenous staff not only gained knowledge about court processes, what the legal system had to offer and so on, but were able to observe the legal system providing useful assistance to other women from their community.
The project was willing to respond to whatever individual or communal legal needs the Aboriginal women of each community would present. At the beginning there was no presumption that legal remedies available ‘in town’ would be of any interest or use to the women in the remote community.
Over five years the service has been called upon to provide legal advice and representation in relation to domestic violence orders, crimes compensation, sexual assault, recovery of property and other matters. But beyond the (significantly increased) number and range of traditional legal aid services provided several developments stand out.
In effect the project has met a need for the women of the community to develop a new collective understanding of the way the external legal system will respond should women choose to engage it to assist them. There is clear evidence of the transfer of skills and knowledge, and the empowerment of local women to choose and take the action of their choice.16 As knowledge of the legal system permeates through the community and as trust in some of the agencies of the legal system improves, there has been a significant increase in women seeking assistance. Moreover women are now much more likely to take action in relation to their own problems. Even more importantly there is evidence that communities are solving their own problems either alone or with the help of the local community legal workers. Often there is no involvement at all from TEWLS’ Darwin based staff. The project has also been called upon to assist with developmental projects through, for example, providing assistance to negotiate with the local community government council and funding agencies in relation to establishment of a women’s refuge and resource centre.
This high quality and culturally appropriate service did not come about because outsiders assessed a need for a particular kind of service, for example, one that offered assistance to obtain domestic violence restraining orders. Nor did it realise its potential within a few months or even a year. The form of the service, using a model centred on the client community, was key. It was also important that the project staff have been prepared to adapt their ways of working as more has been learnt.
I suggest that, as a result of this project, the workers at TEWLS have gained an understanding of the legal needs of the women on the three communities which would not be possible to obtain in any other way.
In addition to demonstrating the need to involve client groups in needs construction the TEWLS Aboriginal Women’s Outreach Project has demonstrated the value of working with community workers drawn from, and immersed in, the client community. This aspect of the model may be very useful for other agencies charged with service delivery of any sort to Indigenous communities. It may also be relevant to agencies working with other communities, particularly those whose understanding of the world is relatively removed from the understandings of people familiar with the legal system. Migrants from Asian countries that did not inherit common law legal systems and young people come to mind.17
Using community development techniques as part of needs assessment and service development processes is becoming more popular. As well as being advocated within the US community legal services sector,18 they have been adopted by the Canadian Federal legal aid agency.19
While not explicitly identifying it as a part of investigating need, the UK Legal Help service now directs a significant proportion of funding to community organisations that provide a range of services beyond legal and paralegal casework as part of their response to clients presenting with legal problems.20 In Australia, in addition to the TEWLS project described above, Werribee Legal Service in Victorian and the Southern Communities Advice and Legal Service in Western Australia have undertaken significant youth legal projects using a community development methodology. The Queensland and Northern Territory Legal Aid Commissions have each undertaken community consultation21 projects aimed at developing services to respond to the needs of particular geographically remote communities.22 What is interesting about some of these developments, as Currie notes elsewhere, is that while community development approaches are hardly new, governments are now interested in them.23
Equal Justice in Defining Rights
The way in which rights and responsibilities are defined by law and shaped by administrative action affects all interests in the community including, and especially, those of disadvantaged people who look to the law for protection or who are more likely to be affected by administrative action, for example in relation to the redistribution of resources through transfer payments. To the extent that people are not able, by virtue of poverty and exclusion, to fully participate in the debates that set the public policy agenda, and to influence the decisions of executives and legislatures, then it is not only legitimate but also necessary to provide support to overcome these obstacles. In a properly functioning democracy everyone needs a voice.
There is a role for legal aid organisations, especially community based ones, in enhancing the quality of our democracy by supporting social groups to have a voice in decision-making processes.24 There is, however, a degree of resistance to providing public money to advance what appear to be sectional political interests.25 Of course the nature of democracy is a contested issue: conservatives stress the need for stability and the role of strong leaders while radical critics are concerned about the failure of democratic systems to offer any real participation to the bulk of the population aside from voting for leaders every few years.
But let’s take the conservative post-war orthodox position for the sake of argument. This holds that a State is a democracy if it has universal suffrage, reasonably regular elections between competing leadership groups and equal opportunity to participate in public debate and otherwise influencing decision makers between elections.26 It is plain that for exactly the same reasons that individuals and social groups need access to legal services for advice and litigation, they need access to particular kinds of support and skill to participate in public debate and bring their needs to the attention of policy makers. Justice consists in some reasonable fair allocation of resources and opportunities. The way these are allocated and the rules that apply between interests in society are determined by the executive and the legislature as much as the judiciary. Access to justice therefore requires some fairness in different social groups’ ability to participate in the debates and processes that lead to particular decisions or actions by these arms of government.
Better Get A Lawyer: What kind of legal services?
I have argued that disadvantaged communities, the poor and excluded are entitled to fully participate in the processes that define needs, rights and obligations and that they will often require appropriate assistance to exercise that entitlement. But objection is taken by some legal aid service providers to the proposition that it is their duty to approach community needs holistically, to consider them from client groups’ perspectives and to work with disadvantaged groups to devise the most appropriate response. While admitting that poor and excluded people need a voice in policy debates, they say it is no part of the job of legal aid services to provide this support. This argument misunderstands the nature of legal services.
In the course of identifying the legal needs of a group of rural communities a recent report notes that:
Perhaps this is an example where focussing on the legal system rather than the client communities can narrow our vision. Ab Currie, from the legal aid agency of the Canadian Department of Justice, notes that:
The work of lawyers and the rule of law
There is something to be learned about what legal services are from the growing body of literature which discusses the process of States in transition from an authoritarian society, much of it focusing on the ‘post communist’ regimes of Central Europe and their more and less successful attempts to introduce government subject to the rule of law.30 Here a central question is how to establish the rule of law, for which purpose people have needed to think more closely about what the rule of law is.
The presence or absence of the rule of law is not an absolute, but a question of degree. There is no doubt that Australia has it to a high degree, but that there are ways in which we fall short.31
But what exactly constitutes the rule of law? Krygier suggests four principles that might be used to judge the extent to which a society is governed by the rule of law. They are:
Problems in our thinking about legal services in general and legal aid services as a particular case occur when we focus on ‘dispute resolution’. In doing so we sometimes assume that what happens away from the visible parts of the legal system has little to do with law, and only when a party decides they have a dispute does the legal system — and hence the legal aid system — have a role to play. I think when it is put like this the fallacy of the assumption becomes obvious.
But what is behind this assumption — why is there such a focus on so called33 ‘dispute resolution’ — whether through the courts or alternatives to them?
I think the problem has to do with the way we think about legal services. We typically conceive a legal service as a single instance of legal support to a particular client engaged in some form of dispute resolution. The commonsense model of a legal service is that of a firm using its legal skills on a particular matter (symbolised by a particular file for a particular client) over a discrete period of time - whatever is required to provide the advice, complete the litigation or prepare the documents that meet the client’s legal need.
This is too limited. The range of tasks undertaken for a corporate client by a major law firm is far broader.34 Essentially the firm will, on request, undertake any work for which it has the skills that will make life better for the client corporation. In addition to the obvious kinds of work this includes:
Singsen suggests that we ought to provide an equivalent range of services to poor and excluded people. Take for example a client facing domestic violence. She may require or benefit from:
In conclusion, I tentatively suggest it might be useful to investigate whether the theoretical bases on which the claim to access to justice or equal justice is made should be reformulated. It might for example be possible to go beyond the current claim of ‘equality before the law’,36 that is, a right for all to use the legal system more or less as it is currently structured. We might argue for example that equal justice is an essential requirement of a democratic society which, to be met, requires developing ways to promote equal participation by social groups in the construction of needs, and in formulating ways of meeting those needs.
Whether or not a theory of this sort is useful, disadvantaged social groups will be better served by legal services adopting approaches which are: