Additional funding for legal aid services should be just the start
The Productivity Commission raised some eyebrows when it asked for an additional A$200 million for legal aid services for disadvantaged Australians, who are “more likely and less equipped to deal with legal disputes”.
To justify its unusual call for this large injection of funds, the commission’s report, which was tabled in parliament last week, concluded:
…numerous studies show that effective government-funded legal services generate net benefits for the community.
Behind this catchphrase hides a detailed final report of more than 1000 pages. It makes 83 recommendations to improve access to justice in Australia.
Why change is needed
In its draft report, the Productivity Commission found that half of all Australians will experience a legal problem this year. Most will not get legal assistance or come into contact with our courts or other legal institutions.
This is partly because the Australian legal system is “too slow, expensive and difficult to understand”.
As the commission concludes:
The ability of individuals to enforce their rights can have profound implications for a person’s well-being and quality of life…a well-functioning civil justice system serves more than just private interests – it promotes order social and communicates and reinforces civic values and norms… There may also be tax advantages.
Quick, affordable, and well-understood dispute resolution mechanisms can help prevent problems from escalating into more serious issues that can strain health, child protection, and other community social services.
An economist’s perspective
Importantly, the Productivity Commission brought independent economic analysis to the archaic practice of law.
As American legal scholar Edgar Bodenheimer observed nearly 70 years ago, the legal profession has long been:
…criticized for being backward, for opposing progress and change, and for clinging to the legal traditions of a bygone era.
Without this background and the need to rely on the “sacred cows” of the profession, the Productivity Commission’s pro-market analysis is new and has resulted in some useful recommendations. These include:
It is unlikely that a review undertaken by lawyers would have reached the same conclusions. This justifies the government’s decision to refer the investigation to the Productivity Commission.
Legal services for disadvantaged people
It is fair to say that market principles are unlikely to solve the legal problems of the most marginalized and disadvantaged people in the community. As the commission found:
Disadvantaged people face a number of barriers to accessing the civil justice system, making them both more vulnerable and less equipped to deal with litigation. If left unresolved, civil issues can have a significant impact on the lives of the most disadvantaged. The Commission received many examples of simple problems turning into complex problems in the absence of legal assistance. Unresolved civil issues can also escalate into criminal cases.
Notwithstanding the proposed reforms, differences in resources and personal abilities mean that the most vulnerable Australians may still find the system inaccessible. The government still has a role to play in helping these people enforce their legal rights and resolve their civil law (including family) disputes.
It is in this area that the Productivity Commission has recommended additional annual funding of $200 million from the Commonwealth, States and Territories. He made other sensible suggestions, including:
“unbundle” legal services;
- better coordinate pro bono services, recognizing that these contribute less than 3% of required legal aid services;
- investigate the adequacy and effectiveness of family dispute resolution mechanisms;
- fund strategic advocacy and law reform activities that seek to identify and address systemic issues and thereby reduce demand for frontline services;
- make the principles of eligibility for the granting of legal aid consistent;
reverse cuts to funding for Aboriginal and Torres Strait Islander legal services and ensure the continuation of Aboriginal domestic violence legal services; and
- improve data collection and reporting and evaluation.
It’s hard to argue with any of the Productivity Commission’s recommendations, although some will. Some of the report’s factual findings are already causing concern. Implementing the recommendations will require significant resources and goodwill from governments, service providers, donors and policy makers.
Coordinating existing services and identifying priorities will be essential. This can force agencies to launch new services or shut down existing ones. However, as the commission concluded, the ability to “find savings” is limited, leading to the overall conclusion, to dramatically increase funding.
The Productivity Commission rightly identified widespread concerns that the civil justice system is too slow, too expensive and too adversarial. With thoughtful reforms, collaborative and cooperative implementation, and a significant increase in government funding, we may be able to improve the Australian system and truly deliver access to justice.