Access to justice

The concept of 'access to justice' has been a pressing issue in the reform of the legal system in recent times. This phrase can be used to mean access in basic terms and in socio-political terms. Impediments to equal access to justice for all - one of the highest ideals of any good legal system - includes the cost involved in obtaining legal representation and accessing the judicial system, a lack of knowledge of legal rights and the intimidating nature of legal systems and processes.

In basic terms, there is an obligation on the legal system to provide courts and other institutions which are accessible to all members of society. This includes the provision of facilities which are safe and secure, and which allow attendance and observation by the public and, to an extent, the media. Courtrooms can often be the sites of emotional and violent disputes, so it is important that people feel safe and free within the court system.

There is also a basic requirement  that legal services be available and affordable to all. Legal representation can be very expensive. This means that a large number of people who are required to appear in court cannot afford private legal counsel. For these people, public defenders and legal aid programs exist to provide advice and representation.

Public defenders are paid by the government, but are independent. They appear in court on behalf of clients who have been granted legal aid to face criminal charges. Public defenders are usually briefed to advise or appear in a case through the Legal Aid Commission or Aboriginal Legal Services; or sometimes, through a private solicitor or any community-based legal group. Aside form helping individuals, public defenders can also contribute to law reform by working with the government and appearing on committees within the criminal justice system. Several reports and studies have suggested that legal aid is not sufficiently resourced in Australia and that it is becoming harder for people to obtain a grant of legal aid.

It is not only people with no income, or a low income, who need to be given consideration by the court. It is also important to provide remote access to the legal system for people living in regional and rural areas. One suggestion is that a major barrier to access to justice is that large geographical areas in Australia are not covered by legal aid or free legal services, and there are significantly fewer affordable legal services available in rural and regional areas than in urban areas.

It is important for the legal system to provide access to members of all cultural backgrounds, including non-Anglo-Saxon and non-English-speaking backgrounds, and other groups with strong community values based on religion. The law and the court system are complicated and involve large amounts of technical language, so these people need to know that they can access the law and justice in a clear and reliable way. In a similar way, ease of physical access to courts and legal services must be provided for those with difficulties or disabilities.

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Historically, the law might seem biased in that a large part of the law's original job was resolving disputes between male members of society who owned property. In early legal systems, women were not allowed to own property, and upon marriage a woman gave up most of her rights and possessions to her husband. Women were denied access to public life. A woman was considered as one entity with her husband, meaning a married couple was considered as unito caro, or 'one flesh'.

The Australian legal system could be criticised for having an historic bias against Indigenous people through the imposition of a foreign legal system on them, which, by definition, does not take into account their cultural systems and customs. In particular, the Australian Law Reform Commission has identified Aboriginal and Torres Strait Islander women as a group poorly served by the legal system. It has also been suggested by policy groups that courts dealing with Aboriginal people on a regular basis should have at least one Aboriginal staff member. Measures like these, along with the funding of legal aid for those who cannot afford representation and the development of community justice centres, are all designed to improve access to justice for all members of society.

Alternatives to formal litigation

Litigation is the preparation of a case for the purposes of going to court. There are other ways to access justice without formal litigation, however, such as through the Small Claims Tribunal and the Alternative Dispute Resolution system.

The existence of bodies like the Small Claims Tribunal (SCT) in each State or Territory offers an inexpensive way for people to access justice without having to enter the costly and complex world of litigation. The SCT is a court which deals with disputes involving less than a certain monetary amount. In Queensland, for instance, the amount is currently $7500. As a general rule, lawyers are not permitted in the SCT system so people usually prepare their own cases. These tribunals usually sit within a Magistrates or Local Court system. The SCT usually hears tenancy disputes or fair trading disputes relating to contracts or consumers, for example, if a landlord refused to fix a leaking roof, the tenants might take their case to the SCT.

There is a distinction between small claims and minor debts. If you are personally owed an amount of money up to $7500 this constitutes a minor debt, so an action for recovery must be taken to the Magistrates Court rather than the SCT. Small claims cases are generally about disputes between consumers and traders (including landlords and tenants), and the SCT is informally considered to be the consumers' court.

The system known as Alternative Dispute Resolution (ADR) has also been developed as an alternative to formal litigation. The process of ADR involves people involved in a dispute coming together with an impartial third party in a non-legal setting. The impartial person acts as a mediator between the two parties and it is the mediator's role to try to work out a compromise or agreement between the disputing parties. The mediator serves to direct and control the discussion and suggest possible outcomes. ADR developed to relieve the pressure on the court system and as an effective way of resolving disputes in a less adversarial fashion, especially between parties who need to keep working or living together after the dispute.