Insights: Australian Productivity Commission Report into Access to Justice Arrangements

The Australian Productivity Commission has just released its report into Access to Justice Arrangements.

Volume 1 looks at the accessibility of the justice system, the use of alternative forms of dispute resolution, the regulation of the legal profession and the structure and operations of ombudsmen, tribunals and courts.

Volume 2 discusses private funding of litigation; and the provision of legal aid, both broadly, and specifically to Aboriginal and Torres Strait Islander people.

The overview of the report and recommendations has also been released.

A working party of the NSW Bar Association made submissions to the inquiry, and in June 2014 Arthur Moses SC and I appeared at the public hearings on behalf of the NSW Bar.

On a quick review, the Final Report takes into account (although not adopting all) those submissions, including:

- the provision by barristers of pro-bono legal assistance and advice, including the support of the NSW Bar for Law Access (Vol 1, pp 158, 160, 237, 243) and the important role of Legal Assistance Forums to co-ordinate the legal assistance sector (Vol 2, p 749)

- the argument against restrictions on the right of representation before administrative tribunals (Vol 1, p 369) and the value of imposing overarching obligations on lay representatives (Vol 1 p 422)

- support for judicial case management (Vol 1, p 395)

- the role of the model litigant rules on government agencies to redress power imbalances (Vol, 1 430) and the need for a review of the current enforcement arrangements (Vol 1, p 436)

- the purpose of the offer of compromise regime to effect settlement, and concern that the current regime was asymmetric (Vol 1, p 459)

- contesting the idea that parties can be encouraged by activity-based costs scales to overspend in litigation (Vol 1, p463, 466)

- the Bar's argument against an arbitrary caps on recoverable costs (Vol 1, p 471, 472), and the need for additional funding if courts are to become involved in costs budgeting by following the UK reforms (Vol 1, p 473)

- identifying data where self-representation has led to worse outcomes for litigants (Vol 1, p 497)

- the professional challenges for lawyers dealing with self-represented opponents (Vol 1, p502)

- the advisability of adopting guidelines and educating lawyers (like the NSW Bar has) on how to dealing with self-represnted litigants (Vol 1, p 507, 508)

-the value of programmes such as the NSW Bar's Duty Barrister Scheme (Vol 1, p 514), and

- the advantages of tailoring and differentiating court fees as a means of improving access to justice (Vol 1, p 545, 548) including fee postponements (Vol 1, p 564) and waivers (Vol 1, p 569)

In my next blog, I will provide my own personal review of the Commission's wider recommendations, including the Commission's call for $200 million injection into legal assistance, and the recognition of community legal centres doing law reform work. A number of the NSW Bar's submissions have been taken up or modified, including:

- Statutory obligations should be placed on parties and enforced to facilitate just, quick and cheap resolution of disputes. Targeted pre-action protocols may also assist. (12.1-2)

- All courts should examine their processes in terms of consistency with leading practice in relation to case management, case allocation, discovery and use of expert witnesses. (11.1-6) 

- Higher-tier courts should further explore the introduction of processes for cost management and capping. (13.2-3) 

- Court and tribunal fees should be set to recover a greater proportion of costs depending on the characteristics of parties and the dispute. Fee waivers should continue to be provided to disadvantaged litigants. (16.1-3) 

- The Australian Government should establish a licence for third party litigation funding companies to verify their capital adequacy and properly inform clients. (18.2) 

- Governments should align the principles for determining eligibility for grants of legal aid so they are consistent and linked to a measure of disadvantage. (21.2) 

-All governments should work together and with the legal services sector as a whole to develop and implement reforms to collect and report data that can be used for policy evaluation and research purposes. (25.1-4) 

However, others may prompt concern from the profession, in particular:

- the recommendation that restrictions on legal representation should be more rigorously applied (10.1)

- the implementation of the recommendation that Governments should develop a single set of rules to offer consumers the option of purchasing unbundled assistance. (19.1) 

- the long term consequences for the recommendation that a taskforce should design and implement a limited licence for family law, with other areas of law to be explored following the implementation of the family law licence. (7.5) 

3 December 2014

Dominique Hogan-Doran is a commercial barrister based in Sydney. She was a member of the NSW Bar Association’s Productivity Commission Inquiry Working Party, and is currently a member of its Costs & Fees Committee and Health and Wellbeing Committee. Dominique is a former President of Australian Women Lawyers and frequently blogs on issues concerning the profession.