Speech by Tony Parsons on access to justice

We must do more than simply pay lip service to access to justice, said Victoria Legal Aid managing director Tony Parsons in a recent speech at the 25th annual conference of the Australasian Institute of Judicial Administration.

When do people need to know about the justice system in some detail? They need to know quickly when their marriage falls apart, when their Centrelink benefits are cut, when they are in debt and when they are arrested.

People need to know about the system long before they walk up William Street here in Melbourne and into a court. 

When a person is faced with a problem, the justice system doesn’t always come to mind.

A person may not be thinking about the justice system when telling a doctor that their mental health is deteriorating because of the incessant calls from a debt collector.

A newly arrived immigrant may not be thinking about the justice system when telling an English tutor that their partner is abusive.

A teenager may not be thinking about the justice system when he tells the school counsellor that his benefits have been cut by Centrelink and he is facing homelessness.

How do we meet the needs of these people?

The approach should start well before a person finds themselves in the intimidating surrounds of a courtroom.

Imagine the confusion experienced by a migrant woman who has recently arrived in our country, say from a country without formal judicial structures.

Imagine that her marriage has broken down and she has three young children.

She finds out that we have two courts that deal with divorce and child contact issues:  to which does she turn?

There is a different court again for children’s matters, and another for intervention order matters.

And yet another, a tribunal, for appeals about child support agency decisions and the like.

How could she possibly know where to start?  

Research tells us that when people have a legal problem,  51% of people initially turn to family and friends or non-legal professionals for help with that  problem.

Only 12% of people, one in eight, turn to the legal profession for help.

When those one in eight do come to the legal profession – particularly the profession working in the legal aid sector – they find a myriad of different services which are often shrouded by an almost impenetrable fog of stringent funding and case criteria, guidelines, and means and merits tests that have been put in place to manage and prioritise legal aid expenditure because the level of government funding is so hopelessly inadequate, so hopelessly disproportionate to the need.

Often, people with legal needs hit this legal aid barrier of prioritisation and simply bounce off it, bouncing into the ‘referral roundabout’ of services, calling or going to one place after another but never quite the right place.

And what happens then? Many people give up, and continue a life of poverty, violence or debt. Or of all of these.

Only a very small proportion of those one in eight might find their way to the courts or tribunals because the barriers one has to overcome to get to the courts are huge and are far more complex than just the cost of obtaining legal help.

The barriers include:

  • not knowing that a problem has a legal dimension to it
  • not knowing about helpful services 
  • not knowing the local laws and possibly thinking that the laws of their country of origin will apply
  • not believing that the law or legal system will offer any real protection, given past experiences.

Where should we start to address these issues?

First we need to understand the problem, what is it and where is it that the challenges lie?

Historically, there has been little quantitative research into legal need in Australia. However, this is about to change. Victoria Legal Aid, with all other Australian Legal Aid Commissions and the NSW Law & Justice Foundation, is undertaking a comprehensive, Australia wide survey of legal need. The study, based on tried and tested methodology developed a decade ago  by Professor Hazel Genn from London’s University College, will survey over 20,000 Australians – it is undoubtedly the largest legal needs survey undertaken anywhere in the world. 

It will identify not only the location, nature and quantum of legal need, it will also tell us what people do about legal need and how effectively that need is resolved. 

The study will provide comprehensive empirical evidence about legal need on which strategies can be based to effectively build equitable access to the law and to justice.

I’ve been asked to talk about what Victoria Legal Aid is doing to improve access to justice for marginalized members of our community. I’ll mention four programs. 

We do a large volume of work in the Mental Health jurisdiction which, whilst not directly relevant to the theme of this conference, demonstrates an important principle. Working in this jurisdiction not only gives us the opportunity to assist clients but we can also teach health professionals about a range of matters affecting their patients, including guardianship and administration law, intervention orders, and Centrelink and the Social Security Appeals Tribunal.

People rarely present with just one need. Very often, mental health issues come bundled with social security, housing or family breakdown issues. If the person’s position is to be substantially improved, the professional who manages the presenting problem must have an understanding of the pathways along which other issues can be addressed. In VLA’s view, therefore, better co-ordination of legal and non-legal services, to provide a holistic response to a person’s problems, is the key to success. 

Our lawyers at the Neighbourhood Justice Centre provide outreach clinics in the Collingwood and Richmond public housing precincts, home to many refugees and Indigenous Australians.

Effective community legal education can prevent more expensive casework. We run seminars and distribute over half a million legal publications in five different languages each year. The resources Victoria Legal Aid devotes to community legal education have a significant multiplier effect well beyond the cost of producing brochures and publications or running seminars.

For example, studies have shown that providing people with early information and advice about their options, when they are, for example, deep in debt, markedly reduces the chance of the person ending up in court.

Similarly, clients that have the terms of an intervention order clearly explained to them in plain language, English or otherwise, are less likely to go back to court being represented by our criminal lawyers for a breach.

So, great benefits can be derived if we build legal knowledge and skills in the community. We have a lot to learn from the health sector in this regard. Just as preventative medical education includes widely spread messages about safe sex, smoking, healthy diets and exercise and self-diagnosis, to reduce the burden on the health and hospital system, we need to improve legal literacy to reduce the burden of legal crisis management on the court system.
But we know that printed information has its limitations.

Victoria Legal Aid also has a multi-lingual telephone information call centre that fields over 70,000 calls per year. It provides legal information and referral in fourteen languages. Each language, has its own phone number which is promoted through local ethnic media and ethnic organisations.

And we are about to appoint a community engagement worker to provide tailored legal information via seminars and workshops, ethnic radio, press and outreach activities.   

I’m afraid, however, that a recent access and equity audit of VLA’s services found that we have still much to achieve and the following examples demonstrate that the problems of reaching marginalized communities are profound.

Earlier I gave an example of a migrant woman whose marriage has broken down and who could have several courts or tribunals to deal with.

Imagine that the woman comes from a country where, following marriage breakdown and separation, custody of the children automatically goes to the father’s family. Of course, this is not the case in Australia but the mother doesn’t know that so she does not separate from her possibly violent husband for fear of losing the children. She lives a domestically and culturally insular life - how do we reach her?

Research shows that there are relatively low rates of reported legal needs amongst Indigenous Australians and people born in a non-English speaking country. Rather than reflect lower incidence of actual legal need it is most likely that this reflects a failure to recognise legal issues, or a reluctance to complain about or seek help to resolve them.

And soon to be published research at a community legal centre in an outer Melbourne suburb revealed that, in a sample of participants, few people from CALD backgrounds understood their rights or remedies in relation to Centrelink decisions.  How do we reach these people?

We know that some members of cultural groups, including some Indigenous Australians, distrust Victoria Legal Aid because they perceive us as ‘government’. It is not always easy to convince people that we are an “independent” statutory body that launches thousands of cases a year against various faces of the government, against the police, against the Department of Human Services, against Centrelink and, against the Immigration Department.

And it is not easy to convince people that those cases are driven by allegiances to the court and the law and by zealous allegiance to the best interests of the client but not by any allegiance to government.  

So you can see there is much to be done. The obligation rests firmly with us and with government to energetically meet these challenges because if we are serious about battling social exclusion and the risk that it poses to the liberal, democratic way of life that the whole community enjoys, we must do more than simply pay lip service to access to justice.

Tony Parsons was one of many speakers at the AIJA conference, held in Melbourne on 12-14 October 2007.