Erosion of Representation Harms Disadvantaged

The lack of legal representation available to disadvantaged Australians is having a detrimental effect on the legal system and the delivery of justice, according to a new Law Council report.

Law Council President Bob Gotterson, QC, says the report confirms what was suspected for some time. The failure of public funding to maintain pace with the actual costs of legal representation is jeopardising the delivery of justice in Australia.

Gotterson says it shows that there has been an erosion in the level of legal representation over the past decade.

The report, Erosion of Legal Representation in the Australian Justice System, which was done in conjunction with the Australian Institute of Judicial Administration, National Legal Aid and Aboriginal and Torres Strait Island Legal Services, highlights the difficulties experienced by Australians accessing the justice system and the consequences this is having on the courts.

The report says that of most concern are cuts to legal aid funding and changes to policy and procedural guidelines which have resulted in a justice system characterised by a rise in self-represented litigants, an inequity in access to representation, a withdrawal of experienced lawyers from publicly funded work, limited access to legal representation in rural and regional areas, and increased costs and demands being placed on the courts.

Gotterson says when legal representation is not available to or used by a litigant, the integrity of the justice system is challenged.

He says at a time when the law has become more complex and there is a real growth in legal need, many Australians are being denied the right to legal representation to receive a just outcome.

He says some disadvantaged clients feel pressured to plead guilty or abandon their cases owing to the lack of representation. The courts are facing rising costs through the increased number of self-represented litigants, delays in court proceedings and prolonged cases.

He says judicial officers and lawyers want to see justice done – but the need to remain impartial in the delivery of justice becomes very difficult when there is no legal representation.

In the report, the Law Council makes a series of recommendations.

It calls on the Australian Law Reform Commission to conduct a study of the effect self-represented litigants have on the Australian justice system.

It also recommends that urgent attention be given to increasing public funding to reverse the trend of self-represented litigants in court.

Gotterson says a national task force also needs to be established, with a view to developing national guidelines and priorities for the delivery of public funding to disadvantaged litigants in the justice system.

If you would like an electronic copy of the report just send us an email with Law Council Report in the subject line to probono@probonoaustralia.com.au.