A roadmap for access to civil justice

Access to civil justice has been the focus of my work for much of my career.

I was responsible for Legal Aid Queensland’s civil justice program for many years, and I have been the Chair of the Queensland Law Society’s Access to Justice Committee and a member of the Law Council of Australia’s Access to Justice Committee for some years now.

Given my deep interest, I was particularly proud to be able to launch the Queensland Law Society Policy Position on Access to Justice this year.

The opening paragraph encapsulates the essence of why access to civil justice is so important:

“Access to justice is a human right. It also makes other human rights a reality. In the absence of access to justice, people are unable to exercise their rights, hold decision-makers accountable, challenge discrimination and have their voice heard.”

While access to justice in criminal law matters remains imperfectly realised, at least there is a framework for it in the International Covenant on Civil and Political Rights, the Queensland Human Rights Act, and case law.

Access to civil justice, which is critical to the rule of law and the maintenance of our civil society, lacks even that framework.

The Human Rights Act enacts that every person is equal before the law and is entitled to equal protection of the law.¹ It enacts that a party to a civil proceeding has the right to have the proceeding decided after a fair hearing.²

But there is no civil case law equivalent to Dietrich v The Queen (the case that established a criminal trial could not proceed in the interests of justice if there was no legal representation for the accused), and, with few exceptions, no legal aid for civil law cases.

Lawyers talk about access to justice a lot, but often we are not very specific about what it means in practice. Before exploring where we need to take access to civil justice, I want to suggest a working definition and look at some of the issues we presently face which highlight the need for action.

I think there are three components of what access to civil justice truly means:

• First, that the law draws an appropriate balance between competing rights.
• Second, that there is an appropriate forum in which to take action when rights are breached.
• Third, that legal representation is available in that forum when necessary.

There are many instances where we know we have access to justice challenges. There are two categories I want to consider – access to civil justice in relation to the actions of government, and access to civil justice in relation to the actions of private actors.

Civil justice – child protection

In relation to the actions of government, there is no more stark example of lack of access to civil justice than the situation of a parent facing action by the State to remove their child.

Child protection is complex, difficult and very high stakes. The system has been much reviewed and much reformed, and there is no doubt that improvements have been made.

The law, for the most part, draws an appropriate balance between competing rights. There is an appropriate process, with application to the court required before government can intervene in a family without consent.

However, it remains the case that legal aid for representation for a parent facing removal of their child is not automatic for those who meet the means test, as it is for serious criminal cases, but is subject to a merit test.

That is, legal aid is only available if the parent it is more likely than not, with representation, to obtain a different outcome to that sought by the department.³

While legal aid may also be granted if needed to assist the court because a parent is otherwise effectively unable to participate in the process, for example due to disability,⁴ this is a far cry from a right to legal representation when faced with the action of the State to interfere with one of the most important human rights, the right to family.

Perhaps it is a gendered perspective, but since first working at Legal Aid, 25 years ago, I have never understood why the right to family is less deserving of protection than the right to liberty.

Civil justice – mental health detention and involuntary treatment

Neither have I understood why the rights to security and liberty, in the context of involuntary treatment for mental illness, are not worth protecting in the same way as the right to liberty when facing criminal charges.

Again, matters before the Mental Health Tribunal are complex, difficult, and very high stakes. Again, for the most part, the law draws an appropriate balance between competing rights. Again there is an appropriate forum, with a specialist tribunal making decisions about the restriction of rights. Again, the system has been much reviewed and much reformed, and there is no doubt that improvements have been made.

However, it remains the case that legal aid for representation for a person seeking to assert their right to make their own decisions about their medical treatment is automatic for those who meet the means test, but is subject to a merit test.

In contrast to both these examples, legal aid representation is available for trials of criminal law cases in the District Court or Supreme Court without the requirement for a merit test.⁵

In other words, a financially eligible person accused of a serious criminal law offence is entitled to a lawyer for their day in court, irrespective of whether they are going to win.

A person in a civil law proceeding, who, by action of the State, faces a risk to their human rights, which I contend is just as serious as the right to loss of liberty upon conviction on a criminal charge, does not have that same entitlement.

This is a serious flaw in our system of access to civil justice, and one that should be remedied. This is also the position of Queensland Law Society.

The wide compass of civil justice

But what of those many cases where the other party is not the state, but a private person, and yet fundamental rights are at stake – the broader civil justice landscape?

In the legal profession we are used to framing the discussion about access to justice as access to a lawyer to represent you in court – as I have just done in relation to child protection and mental health. But that is only a small part of the civil justice landscape.

It’s difficult to get a clear view of the civil justice landscape in Queensland because it is so diffuse. Quite helpfully, the Commonwealth Government, in the report titled ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’,⁶ did some mapping. In my view, that document remains as relevant today as it was 12 years ago. It finds that:

“The civil justice system encompasses the many institutions and services through which the Commonwealth helps people to resolve civil disputes, and prevent disputes from occurring. It includes:

• the laws and legal frameworks applying in the federal context
• services that provide information and advice in relation to legal problems and events that people might experience, including informing them of their legal rights
• providers of legal and related services, including legal advice, assistance, advocacy, dispute resolution and representation
• primary decision makers/public officials (including ministers) making decisions affecting rights (for example eligibility for benefits, concessions or licenses to carry on a business)
• dispute resolution services that help people negotiate their own solutions such as Family Relationship Services
• complaint handling bodies, including Ombudsmen
• administrative review tribunals, and
• courts.”⁷

While some of the names would change in Queensland, the key concept is essentially the same. The government, through many institutions and services, helps people to resolve civil disputes and prevent them from occurring. Because the State Government has responsibility for so many aspects of everyday life, there are very many services – some with overlapping responsibilities. The landscape is very complex to navigate.

The Commonwealth report goes on to identity four waves of access to justice reform:

Wave 1. Access to justice as equal access to legal services (that is, lawyers and legal aid) and courts. It should be achieved by providing financial assistance and other legal aid services.

Wave 2. Access to justice as correcting structural inequalities within the justice system; that is, changing the law, court procedures and legal practice to make access to justice more meaningful. This includes improving court processes and streamlining the civil litigation system.

Wave 3. Access to justice as an emphasis on informal justice and its importance in preventing disputes from occurring and escalating—including greater use of non-adversarial alternatives to legal justice, such as alternative dispute resolution (ADR).

Wave 4. Improving access to justice by implementing competition policy to allocate access to justice resources, whether formal or informal, as efficiently as possible through market institutions, such as by reforming legal profession rules to lower the cost of legal services.

The report argues the need for a new fifth wave of reform, recognising that very few civil disputes reach formal justice mechanisms such as courts, and fewer reach final determination. It argues that improving access to justice requires improving access to formal and informal justice mechanisms and improving the justice quality of daily life.⁸

I agree, we do need the fifth wave, to improve the justice quality of daily life and provide pathways through the very complex civil justice landscape in Queensland. This is necessary precisely because so many rights are determined outside the formal justice system. But there is still much work to be done on waves one, two, three and four.

The Access to Justice Scorecard

But what evidence do I have, that there is a problem – other than my own anecdotes from 35 years of legal practice?

Each year, since 2013, QLS has published an Access to Justice Scorecard, based on a survey of our members. The 2021 survey has just concluded, although the report has not yet been published. We ask people to give an overall score out of 10 for access to justice in Queensland.

Generally, the score comes in between 5.1 and 5.4. This year it is 5.28. The same themes consistently emerge: the top two barriers to access to justice are consistently:

• inadequacy of funding of legal assistance services, and
• inability to access private representation because of cost.

The need for additional funding for legal assistance services, and the benefits that would flow from that have been demonstrated by evidence beyond our scorecard survey. The amount necessary at a national level was even quantified by the Productivity Commission in its 2014 ‘Report on Access to Justice Arrangements’.⁹ And yet, the quantum of funding necessary is not provided by government.

Beyond these top two barriers, the next identified are:

• the lack of awareness of legal rights and what to do to take action, and
• the complexity and inflexibility of courts and court processes.

There is, of course, a clear link between the complexity of court processes and the costs of engaging a lawyer and/or the practicality of self-representation. I have read the raw survey results for 2021, and I want to share some of the comments as they are very apt:

• “Clients cannot afford to proceed to Court and even if they do, it takes too long. They are literally having to choose between proceeding to court to hopefully win their case with a risk of going bankrupt or choosing to ignore blatant infringement of their rights.”
• “Inability to provide access to justice for the missing middle – only the wealthy and those with the kind of claims that provide a lucrative financial return (insurance litigation and succession) have access to justice.”
• “Current legal processes do not provide for the best outcome for the client due to the cost involved. Therefore, on balance of a cost benefit analysis, the client is better off ‘wearing’ their loss, even though they have a valid legal claim against another party/person.”
• “The main reason why I turn clients down in litigious matters is that the cost of litigating (including the risks of a costs order against them) substantially surpasses the estimated value of the clients’ rights.”
• “Legal work is often complicated. It takes time to do. If you want competent people to do it, and to do it well, they need to be remunerated for their time. Cost is the biggest reason many ‘ordinary people’ do not use lawyers, even when they could benefit from legal advice/work. Unless money is going to be poured in from somewhere, you need to make the processes genuinely efficient if you want to try to reduce cost and hence increase access to justice.”

There is a common theme. It is to do with the proportionality of the cost of the legal process to the issue requiring resolution. This is not a new theme.

Civil litigation is an adversarial process, and we all know war is expensive. You must marshal your case, gathering all the ammunition that you think you will need, because it’s hard to restock part way through, and you can’t afford to be found wanting at a critical juncture.

You must prepare for all eventualities, with a range of fall-back options. You are not just prosecuting your case, but must be ready to defend it from the attacks of your opponent.

This is complex and expensive work. As former Deputy Chief Justice of the Family Court of Australia Justice Faulks used to say, to make the system work for litigants you have to either:

• get them lawyers
• make them lawyers, or
• change the system.¹⁰

Changing the system – tribunals

We have seen the attempts to change the system with the proliferation, in recent decades, of alternative mechanisms to deal with everyday justice issues.

The most visible is the establishment of tribunals which still operate on an adversarial model, but seek to constrain the arms race. For example, they may prescribe and limit the information that can be put before the tribunal, minimise interlocutory processes, offer alternative dispute resolution before a hearing, and prohibit or restrict the involvement of lawyers in the process.

It is, however, a truth, universally acknowledged, that the longer an adversarial tribunal exists, the more it comes to resemble a court, or as the Productivity Commission described it, there is a risk of “creeping legalism”.¹¹

CATs – or Civil and Administrative Tribunals – now exist in most states and territories, including our own QCAT. The approach works well for some matters. But QCAT’s jurisdiction is patchy – many people assume its minor civil dispute jurisdiction is for all matters below $25,000, but this is not the case.

As a result of its cobbling together from the small claims tribunals and the minor debt jurisdiction of the Magistrates Court, there are gaps between the various heads of jurisdiction which people frequently fall through.

The limit of $25,000, which was set more than 10 years ago, now looks very conservative. If a matter doesn’t fall into the jurisdiction of QCAT it must go to the Magistrates Court. That engages the Uniform Civil Procedure Rules, which are no doubt fit for purpose in the higher courts, but cumbersome for a low value claim in the Magistrates Court. It also engages a risk of a costs order if unsuccessful.

Changing the system – inquisitorial without the resources

Another development is that the decision-making body within an adversarial framework takes on aspects of an inquisitorial process. Here, we have the example of the guardianship jurisdiction of QCAT.

The inquiry is to establish whether the adult has impaired capacity, and if so, whether the appointment of a guardian or administrator is necessary. Somebody makes an application, the adult about whom the application is made, and other interested persons participate. The process is one of inquiry. The decision maker takes a more active role – eliciting evidence perhaps by questioning the parties – but the tribunal takes no responsibility for the gathering evidence.

It is a process that engages fundamental human rights and deep human emotions. It is also a process that has become completely overwhelmed. QLS welcomed¹² the additional funding in the 2021 State Budget to provide additional resourcing to QCAT to allow it to manage its important case load and reduce the concerning delay in the process.

This, however, was a one-off injection of funds. QLS considers that there is much to be done to ensure access to civil justice in the guardianship process – including proper resourcing to the tribunal, the establishment of a right to legal representation in the process, and, subject to a means test, public funding of legal representation for adults who are the subject of the application.

A proliferation of civil justice services – the guardianship example

Guardianship is also an example of an area where there are multiple government services to resolve disputes and prevent disputes from occurring. In addition to QCAT, which makes decisions about the appointment of substitute decision makers, there is the Public Guardian which:

• makes personal, health and legal decisions for adults if the Public Guardian is their guardian or attorney
• investigates allegations of abuse, neglect or exploitation
• advocates and mediates on behalf of adults with impaired decision-making capacity, and
• educates the public on the guardianship and attorney systems.¹³

This is clearly an agency deeply engaged with the fundamental human rights of citizens.

The Public Advocate also has a role. It works on behalf of adults with impaired decision- making capacity to:

• promote and protect their rights, including protecting them from neglect, exploitation and abuse
• encourage the development of programs to help them reach the greatest degree of autonomy
• promote, monitor and review the provision of services and facilities for them.¹⁴

This is also clearly an agency deeply engaged with the fundamental human rights of citizens.

Then there is the Public Trustee. According to its website, the Public Trustee, among other things:

• provides independent and impartial services as administrator or attorney
• works to safeguard assets and protect customers from financial abuse, exploitation and neglect.¹⁵

This is yet another agency deeply engaged with the fundamental human rights of citizens.

Then there is the range of publicly funded support services, both in the community and in hospitals, that may play a role. For example, applications to appoint a substitute decision maker may originate from social work support in a hospital setting.

It is often difficult, even for lawyers practising in this area, to navigate the system. It must require great persistence if you are an adult who is ‘in the system’ or somebody trying to support them.

In my view, the various parts of the system are not working as collaboratively as they might. This creates confusion, uncertainty and cost in an area where important human rights are engaged.

Guardianship is only one example of an area where important human rights are engaged and multiple services are provided by government, yet the pathway to access to civil justice is not clear. As another respondent to our Access to Justice Scorecard survey said:

“Many lawyers in the CLC space are devoting resources to assist clients to navigate systems that were arguably created to support the clients in the first place (e.g. public housing, victims of crime). Better training in these areas (and better decision making) would reduce the work of lawyers who need to intervene in these matters.”

The reforms we need in Queensland now

Of the five waves of reform identified earlier, in Queensland there is work to do on each.

Wave 1. Access to justice as equal access to legal services (that is, lawyers and legal aid) and courts.

• The Legal Aid means test should be updated so that it, at the very least, covers all those in poverty. The system contemplates co-payment contributions by those just above the means test, but these are the exception. Perhaps it is time for more use of a co-payment model.
• The Queensland Government and the Legal Aid Queensland board must take urgent action to increase the rates paid to private lawyers undertaking legal aid work.
• Legal Aid must be more readily available in civil law matters where fundamental human rights are at stake, including child protection, Mental Health Tribunal matters and guardianship and administration.

Wave 2. Access to justice as changing court procedures to make access to justice more meaningful.

• The tribunals established to create accessible justice must be resourced sufficiently to deliver it.
• The monetary jurisdiction of QCAT should be increased and its jurisdiction expanded, with appropriate resourcing, to include all civil matters below that threshold.
• Magistrates Court procedures should be simplified for more civil matters.¹⁶ There may even be a more comprehensive solution like combining the civil jurisdiction of QCAT and the Magistrates Court into a local civil court. But perhaps that’s a bigger idea for another time.
• The Queensland Courts e-filing project should be accelerated and quickly expanded, as essential infrastructure to deliver access to justice in our large, decentralised state, and courts and tribunals should embrace the efficiency opportunities offered by technology.

Wave 4. Improving access to justice by reforming the legal profession

It has always troubled me that our Access to Justice Scorecard results could be interpreted as lawyers bemoaning that the legal fees we charge are too high, when it is entirely within our own control to charge less. That would be an unfair interpretation.

The cost of legal work is a function of the extent of the work required and the rate paid for it. As to the rate paid for it, legal fees are subject to considerably more regulation than other professional services, and it is a requirement that our costs agreements are fair and reasonable, or they may be set aside.¹⁷

It is the extent of the work that is difficult to manage, because we generally work in an adversarial system. As others have remarked, it is akin to a builder trying to build a house, while someone else is trying to tear it down.

The scope of work for that building job is hard to manage. Nevertheless, we are much better equipped than our clients to understand and advise them about scope, even if we can’t control all aspects of it. QLS continues to support the profession with guidance about costs and billing, and education about managing scope and delivering value to clients.

The legal profession has already demonstrated considerable innovation to develop models of service delivery that can fill some of the access to justice gap for civil law services, and provide services to the missing middle. This innovation will only continue.

As the Productivity Commission found,¹⁸ there is a role for professional bodies like QLS to support this innovation.

Queensland Law Society recognises the important role of technology as an integral part of access to justice and we aim to support the legal profession in embracing technology in the delivery of legal services.

We also aim to support the profession to give them the confidence to embrace new service delivery models and have published guidance statements in this area.¹⁹

The Law Council of Australia has recently published a report, ‘Addressing the Legal Needs of the Missing Middle’,²⁰ which also discusses a range of initiatives to solve aspects of the civil justice problem.

Wave 3 Access to justice as an emphasis on informal justice and its importance in preventing disputes from occurring and escalating and Wave 5 Improving access to formal and informal justice mechanisms and improving the justice quality of daily life.

I deal with these together because I think the next step required is the same for each. As the guardianship example showed, it’s hard to identity all the components of the civil justice system in Queensland, and harder still to navigate them.

• The Queensland Government should conduct its own strategic review of the civil justice system in Queensland. This should not be done in a vacuum but with the benefit of the findings in the Commonwealth’s review and the Productivity Commission’s review. As the Commonwealth review noted:

“Improving access to justice requires a broad examination of how the system and its various institutions influence each other and work together to support or limit people’s capacity to address legal problems and resolve disputes. Reforming one or more of the individual institutions or programs might assist current clients or users, but will not provide sustainable access to justice benefits or increase the number or profile of beneficiaries. A whole of system examination is needed.”²¹

• The Queensland review should map the formal and informal civil justice system, noting that it is delivered through services provided by a range of government departments and agencies, including Justice and Attorney General, Queensland Health, Department of Communities, Housing and Digital Economy, and various independent statutory authorities.

The review should identify opportunities for efficiencies and better integration, so that public funds are deployed to best value, and so that the pathways are clear to those who need to use the system.

Conclusion

It is true that, in the decades since I began working in the law, there has been some improvement. The systems that permit individuals to seek civil justice have been expanded, and it is more accessible for the resolution of some types of disputes. But there remain serious flaws in the system, and parts of it are not fit for purpose.

Whether it is a curse or not, we live in interesting times. One of the most interesting things I have observed is how, over time, ideas from the margin become mainstream. Having been interested in human rights, social justice and other ideas labelled dangerous in the Queensland of my youth, I find those ideas, or at least a version of them, are now mainstream.

I’m still waiting for access to justice to become a mainstream concern for anyone other than lawyers, in the same way that access to healthcare is a matter of community importance for more than just medical practitioners.

We will know it is when suddenly things that have been accepted as just how it is (like parents losing their children without representation in court) are seen by all as egregious ills that must be remedied.

This article is based on the Derek Fielding Memorial Lecture 2021 delivered by Elizabeth Shearer to the Queensland Council of Civil Liberties, entitled ‘Access to Civil Justice – A necessary pre-condition for the realisation of rights and liberties’.

Footnotes
¹ Section 15(3) of the Human Rights Act 2019 (Qld).
² Section 31 of the Human Rights Act 2019 (Qld).
³ See the Legal Aid Queensland Grants Handbook.
⁴ Ibid.
⁵ See the Legal Aid Queensland Grants Handbook.
⁶ See the report.
⁷ Ibid at page 1.
⁸ Ibid at page 3.
⁹ See the Productivity Commission report.
¹⁰ See here.
¹¹ See the report at page 13.
¹² See the QLS Proctor report.
¹³ See the Public Guardian website.
¹⁴ See the Public Advocate website.
¹⁵ See the Public Trustee website.
¹⁶ It is noted that a simplified procedure has recently been introduced for employment law claims. Simplified procedures should be introduced more generally for lower value matters.
¹⁷ Section 328 of the Legal Profession Act 2007 (Qld).
¹⁸ Recommendation 19.1 of the report.
¹⁹ See QLS Guidance Statement No.7.
²⁰ See the Law Council report.
²¹ ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’ at page 5.