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Chapter 1. Introduction

Background

As noted by a number of authors (e.g. Genn 1999; Pleasence, Buck, Balmer, O’Grady, Genn & Smith 2004b), the issues of access to justice and legal need permeate everyday life. They relate to common problems that people face as members of civil society in many aspects of their lives, such as problems with consumer products, debts, education, employment, health, housing, welfare benefits, divorce and child support. It has been argued that such problems should not only be the concern of lawyers but should be of general concern given that they relate broadly to basic physical and social well-being (Pleasence et al. 2004b).

The ubiquitous nature and pervasiveness of legal needs underline the importance of having a legal system that recognises and resolves these issues quickly and effectively. However, in order to evaluate the adequacy of existing legal services or new policies regarding legal services, a thorough understanding of the nature and number of legal problems people experience, and their reactions to these problems, is a prerequisite.

Empirical research concerning access to justice and legal need can be traced back to the 1930s in the United States. Since that time, such research has been conducted in many countries, including Australia, the United Kingdom, New Zealand, the Netherlands and Canada. However, prior to the 1990s, the study of legal needs proceeded largely in the absence of reliable quantitative data about the incidence of different types of legal needs, the strategies employed to address legal needs, the sources approached for assistance in relation to legal needs, and the extent to which legal needs are satisfactorily resolved. Furthermore, earlier quantitative studies tended to employ narrow definitions of legal needs or to focus predominantly on legal issues usually addressed by the formal legal process (Genn 1999; Pleasence et al. 2004b).

In the last decade or so, a number of significant large-scale survey studies measuring the incidence of, response to, and outcome of a wide range of legal needs were conducted overseas, notably in the United States (e.g. American Bar Association (ABA) 1994), the United Kingdom (e.g. Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b) and New Zealand (Maxwell, Smith, Shepherd & Morris 1999). In comparison to overseas, the quantitative study of legal needs in Australia has lagged behind. Although some survey studies into legal issues have been conducted in Australia (e.g. Cass & Sackville 1975; Fishwick 1992; Rush Social Research and John Walker Consulting Services (Rush) 1996; Rush Social Research Agency (Rush) 1999), large-scale surveys focusing on the incidence and response to a wide range of legal needs have not been conducted in recent years.

The broad aim of the present study was to provide a quantitative assessment of the legal needs of disadvantaged communities in New South Wales (NSW). This study was the most comprehensive quantitative investigation of legal needs undertaken in Australia for about 30 years. It involved conducting a legal needs survey of residents in six disadvantaged local government areas (LGAs) across NSW, including urban, provincial and rural/remote areas. Within these disadvantaged communities, the study examined:

• the incidence of legal issues
• individuals’ responses to legal issues, including the use of legal services
• satisfaction with any assistance received
• the outcome of legal issues
• satisfaction with the outcome of legal issues.

It is envisaged that the study will contribute to the factual base necessary to inform debate and policy choices concerning the legal needs of disadvantaged people in NSW. It has the potential not only to provide valuable information about existing legal services, but also to inform decisions about additional legal services that may be beneficial in the six regions examined. As stated by the Honourable Justice Ronald Sackville of the Federal Court of Australia:

What is needed for worthwhile policy development is empirical information about the types of problems encountered by disadvantaged people, how they perceive and address those problems and their degree of satisfaction with the outcomes. The Foundation’s research program addresses these issues and thereby provides a solid foundation for making worthwhile changes to the justice system (Law and Justice Foundation of NSW Bulletin, Autumn 2004, p. 4).

The literature review below concentrates on the major quantitative survey studies of legal needs conducted overseas and in Australia. Because these studies not only encompassed different jurisdictions, but also a number of other methodological differences, the review first outlines some of the major methodological differences and their likely impact on the results. The review then highlights the major findings with respect to the incidence of legal needs, the response to legal needs and the outcome of legal needs.