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Research Report: Access to justice roundtable
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Access to justice roundtable  ( 2003 )  Cite this report



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Working Group 2 - Access to Legal Advice


The Legal Advice Working Group discussed issues relating to the barriers faced by disadvantaged groups in accessing legal advice. The group first identified the existing mechanisms through which legal advice is obtained. The group then considered the strengths and weaknesses of existing mechanisms in overcoming the barriers faced by disadvantaged groups. The group concluded by considering innovative solutions that could be adopted to deal with the barriers faced by disadvantaged groups.

Existing mechanisms

The group felt it important to first consider the definition of legal advice as distinct from legal information. It was noted that the distinction is a difficult one that the service user usually does not make. It was noted that non-lawyers can give legal advice, for example registered migration agents. Legal advice provided to community groups/organisations was considered important given that many disadvantaged people will go through community organisations to obtain advice. One participant noted that legal information is cheaper than legal advice and that to some extent explains why it is becoming popular. The participant felt concerned about this trend. One participant suggested that accountability is an important aspect of providing legal advice. The participant noted that ‘When you provide advice as a professional you are accountable for it and professional rules apply, there is a duty of care. The person’s rights can be affected by your advice’.

After some discussion it was agreed that ‘Legal advice involves the application of legal knowledge to the particular circumstances of the client’s problem’. The personal interface/relationship was deemed an important characteristic.

The group went on to identify the following mechanisms:

  • Community Legal Centres (generalist and specialist)
  • Legal aid
  • Private legal profession
  • Legal units within government departments
  • Helplines (eg law access)
  • Websites
  • Aboriginal legal services
  • Priests or churches
  • Social workers
  • Migration agents
  • Law Society and Bar Association pro-bono schemes
  • Industry based bodies
  • Unions/professional bodies
  • Talk back radio call ins
  • MPs
  • HREOC
  • Anti-Discrimination Board
  • Financial Counsellors
  • Department of Fair Trading

The barriers

What are the principal barriers to accessing justice system mechanisms for disadvantaged groups?

Costs, delays, gaps in free services and the need to use a private lawyer were the first barriers raised by the group. ‘Some disadvantaged people will be too poor to use the services of a private lawyer but they will be too ”rich” to qualify for legal aid’. The example of a large family on an annual income of $30,000 was given. Another issue raised in relation to legal aid is that in family law when one party receives legal aid, it is not possible for the other party to also be represented by a legal aid lawyer. Not all participants were aware or sure about this fact.

One participant noted that in many cases contingency payments are not an option for disadvantaged people because the amount in question will probably ‘not be large enough to share’.

The group also noted social and cultural barriers such as power imbalances, unfamiliarity with the legal system and the low sense of entitlement felt by many disadvantaged people. One participant noted that some groups come from countries where there are ‘few entitlements and the legal system is often used against them’. Participants noted other cultural and social barriers such as distrust of lawyers, fear of delays, fear of costs, distrust of legal aid providers, the new system for recent arrivals and the differing availability and quality of specialised services.

A lack of knowledge of the system and one’s rights was considered an important barrier. It was noted that many disadvantaged people ‘don’t know about legal aid, don’t know that they have a legal issue and don’t know that they have legal redress’. The complicated nature of the legal system was considered a significant barrier. One participant noted that ‘the complicated nature of the system combined with a feeling that the system works against them makes many disadvantaged people not seek advice because they feel defeated before they get there’.

Other barriers raised were geographical isolation, physical distance from services, jurisdictional gaps and physical access for people with disabilities.

It was noted that many disadvantaged people often face greater problems and are more concerned with their survival than legal problems. One participant provided the example of young homeless people ‘who often have many illegalities happen to them but they feel overwhelmed by their own sense of survival, it would be too difficult for them to follow the process of chasing up an assault for example.’

What are the weaknesses of existing mechanisms in overcoming these barriers?

Several participants noted that the main weakness of existing mechanisms is that demand overwhelms supply. The duplication of services was considered particularly problematic in this context. One participant noted that services have at times been duplicated primarily for political purposes.

Participants agreed that the current emphasis on hotlines and websites ignores the fact that many disadvantaged groups are the least likely to have access to these mechanisms. It was noted that some websites are not accessible to people with disabilities but that the Federal and State governments have been working towards making their websites more accessible to people with disabilities. Although websites were seen as a good way to make information available (especially to intermediaries), participants noted that this information must be translated if it is to be accessible to people of non-English speaking backgrounds.

More generally, the participants noted that a lack of quality interpreters meant that many services were not useful to people of non-English speaking backgrounds. Participants also noted that existing mechanisms were often lacking in cultural awareness.

It was noted that people often want a more personal interaction or relationship with their advice provider. ‘Often the issues are complicated and there may be a legal history’. Participants felt that mechanisms that fail to provide a more personal relationship can in many cases fail to meet the client’s needs.


Strategies

Which of the existing mechanisms are working well?

  • PILCH—co-ordinating pro bono schemes
  • Websites are useful resources for intermediaries providing advice
  • LawAccess—has reduced inappropriate referrals, and the referral merry go round. It also screens those matters in need of one off advice
  • LawAccess using Telephone Interpreter service
  • Outreach—providing face to face advice
  • Out of hours services provided by CLCs
  • Koori mail and other Indigenous publications
  • Legal aid youth hotline—provides an important entry point


How effective have any recent innovations been?
  • Websites augment and enhance the capability of advice service providers
  • Video conferencing may be useful when you need to use interpreters, and also for young people in court proceedings
  • Email advice:
  • mainly used by middle income earners
  • provides greater confidentiality, particularly in rural areas
  • need to be aware of access to technology issues
  • useful medium for people with disabilities.


What innovative solutions could be adopted to deal with these barriers?
  • Remember that one size does not fit all—need to use a variety of mechanisms for people facing a range of barriers
  • Can’t deny the massive unmet demand for services, and the need for more funding
  • Consider ADR options such as alternative parenting plans and conferencing
  • Enhance ADR processes by providing support/advocacy/legal advice at the mediation stage
  • Legal advice and education should embrace ADR and the mediation processes
  • Educating institutions/respondents/perpetrators
  • Streamlining advice provision
  • Community legal education needs to get back to a rights focus so that problems/issues can be prevented in the first place.


  


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Access to justice roundtable: proceedings of a workshop, July 2002, Law and Justice Foundation of NSW, Sydney, 2003