Access to Justice: Productivity Commission Draft Report Released

On 8 April 2014, the Productivity Commission (the Commission) released its Draft Report on Access to Justice Arrangements, the next part of its schedule for its inquiry into the Australian System of Civil Dispute Resolution. Evident from the report so far is that the Commission has found a number of serious barriers that prevent people from resolving civil disputes in a timely and affordable way.

Key points Arising from the Draft Report

Some of the key findings of the Draft Report are:

• Widespread concerns that Australia’s Civil Justice System is too slow, too expensive and too adversarial.
• Much is done in the shadow of the law, that is, that knowledge of what might happen if a dispute ends up in court prompts many to resolve their disputes privately.
• Where disputes become intractable, parties have recourse to a range of low cost and informal dispute resolution mechanisms, however, many have difficulty identifying whether and where to seek assistance and either take no action or seek help from inappropriate sources.
• Provision of basic information so disputes are resolved privately and helping people connect with less formal mechanisms, such as an ombudsmen, could significantly reduce the level of unmet legal need.
• The interests of lawyers and their clients do not always align, clients need to be better informed and have more options for selecting the tasks they want assistance with, and how they will be billed.
• Some disputes, by their nature, are more appropriately handled through the courts, however, while small in number, many individuals involved in these disputes are poorly placed to meet the associated costs and while court processes in all jurisdictions have undergone reforms to reduce the cost and length of litigation, progress has been uneven and more needs to be done to avoid unnecessary expense.
• The adversarial behaviour of parties and their lawyers can hinder the resolution of disputes or even exacerbate them.  The Commission has found that changes to rules governing the conduct of parties and lawyers, and the way in which costs are awarded, would improve incentives to cooperate. 
• Disadvantaged Australians are more susceptible to, and less equipped to deal with, legal disputes. Governments have a role in assisting these individuals and numerous studies show that government funded legal assistance services generate net benefits for  the community.
• Funding arrangements constrain the capacity of legal assistance providers to direct assistance to the areas of greatest benefit. 
• More resources and more efficient and effective practices by legal assistance providers are required to better meet the legal needs of disadvantaged Australians.

Some of the key recommendations of the Draft Report are:

• widespread reforms to the civil and family justice system including the provision of legal aid;
• acknowledgment of the concerns of many that Australia’s civil justice system is too slow, expensive and adversarial;
• noting that current funding arrangements make it difficult for legal assistance providers to direct resources to areas of greatest benefit; and
• the suggestion that in some cases funding needs to be redirected.

Very telling from the report are the comments that legal assistance providers: ". . . need more resources" and ". . . must also be more efficient and effective to better meet the needs of disadvantaged Australians". 

Background to the Commissions Report

The original Terms of Reference were released by the former Federal Government on 21 June 2013, seeking that the  Commission undertake a 15-month inquiry (involving public consultation after which it would report publicly) into the Australian System of Civil Dispute Resolution focusing on constraining costs and promoting access to justice and equality before the law.

In their press release announcing the inquiry, the former Federal Attorney-General and Assistant Treasurer indicated that the  Commission was to "report on options for achieving lower-cost dispute resolution, including through alternative dispute resolution, the use of technology and expedited procedures".

The Commission was also to provide advice on data collection across the justice system to enable better monitoring of costs and evaluation of measures aimed at keeping costs down and most important the Commission was to report "on the number of Australians who may not be able to afford to secure legal representation but who also do not qualify for legal assistance".

In conducting the inquiry the  Commission was to have regard to the following:

• the real costs of legal representation and trends over time;
• the level of demand for various legal services;
• factors contributing to the cost of legal representation in Australia;
• whether costs and charges for access to justice services and for legal representation are generally proportionate to the seriousness of the issues in dispute;
• the impact of costs of accessing justice services, and securing legal representation, on how effective these services are;
• economic and social impact of the costs of accessing justice services, and securing legal representation;
• impact of the structures and processes of legal institutions on the costs of accessing and utilising these institutions, including analysis of discovery and case management processes;
• alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these;
• reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation and promoting equality in the justice system; and
• data collection across the justice system that would enable better measurement and evaluation of cost drivers and the effectiveness of measures to contain these.

The Report Schedule

As already indicated the Terms of Reference were issued on 21 June 2013, followed by an Issues paper released on 16 September 2013. The Draft Report is the latest step to be completed, being released on 8 April 2014. The Commissions website indicates that to date some 154 submissions have been received. The closing date for submissions is Wednesday 21 May 2014 and public hearings are to follow with the final report to the Government to be delivered on September 2014.

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• Access to Justice Arrangements (Public inquiry - Productivity Commission website)
• Access to Justice Arrangements (Draft report - Productivity Commission website)
• Productivity Commission on access to justice (ABC Law Report - 15 April 2014)
• Draft Productivity Commission report released (Victorian Legal Aid Website)
• Faster, Simpler, Fairer Justice - Productivity Commission Review (Joint Media Release - 20 June 2013)