Justice Gap Growing - Productivity Commission Report

More than $200 million a year is needed to narrow Australia’s growing justice gap for people facing disadvantage, the Productivity Commission has said in its final Access to Justice Arrangements report.

Released recently, the report supports calls by welfare peak body VCOSS, community legal centres and the legal assistance sector for more resources to meet the legal needs of Australians facing disadvantage.

The Productivity Commission report refers to a growing “justice gap”, of people who do not have the resources to take private legal action but are missing out on legal assistance due to the resourcing constraints legal services are facing.

The report states that some people are unable to access legal assistance in crucial areas like family law, family violence and the care and protection of children.

The Productivity Commission says that narrowing the justice gap is necessary both socially and economically, and estimates that an additional $200 million a year is needed to:

• Better align the legal aid commissions’ means test with other measures of disadvantage

• Maintain existing frontline services that have a demonstrated benefit to the community

• Allow legal assistance providers to offer a greater number of services in areas of law that have not previously attracted funding.

It says that over the medium and longer term, the Australian, State and Territory governments (in consultation with the Not for Profit sector) should agree on priorities for legal assistance services and provide adequate, stable and flexible funding to enable these priorities to be realised.

“Legal assistance is an integral part of ensuring that the justice system is accessible to all,” it said.

According to Community Law Australia, the Australian Government this year cut funding to community legal centres, Aboriginal legal services and Aboriginal family violence prevention legal services.  

“This report should mark a watershed moment in legal assistance in Australia. The Productivity Commission has recognised the severe social and economic impacts of an inaccessible justice system, and it has acknowledged the system is badly underfunded,” Community Law Australia national spokesperson, Carolyn Bond, said.

‘The report provides strong arguments against the deep cuts inflicted on community legal sector in the last Federal Budget and indicates the immediate reversal of those cuts and a significant increase in funding are needed,’‘Instead of massive cuts, this report is calling for the injection of $200 million to legal assistance services including community legal centres, Aboriginal legal services and legal aid.

“We support that as a starting point to ensure that access to legal help does not depend on your capacity to pay for a private lawyer.”

The Productivity Commission report also recommends that Governments should fund legal assistance services for strategic advocacy and law reform activities aiming to identify and remedy systemic issues and so reduce demand for frontline services.

“This runs counter to Australian Government policy, which has sought to restrict the ability of community legal centres to undertake advocacy and law reform work,” VCOSS said on the release of the report.

“The Commission considers that strategic advocacy and law reform that seeks to identify and remedy systemic issues, and so reduce the need for frontline services, should be a core activity of Legal Aid Commissions and Community Legal Centres (particularly peak bodies and the larger Community Legal Centres),” the report said.

The Productivity Commission report makes many other recommendations, including:

• Measures to better address the legal needs of disadvantaged Australians, such as development of legal health checks, improved coordination of services between legal assistance and non-legal services, establishment of Community Legal Education Collaboration Funds, and development of legal education training and materials for community workers.

• Update funding allocation models for legal aid commissions and Aboriginal and Torres Strait Islander legal services to reflect current understanding of legal need.

• Do not increase court fees for cases concerning family violence, child protection, deprivation of liberty, guardianship, mental health, or claims to seek asylum or protection. Develop and publish criteria to determine eligibility for a waiver, reduction or postponement of court fees on the basis of financial hardship.

• Measures to assist self-represented litigants, including plain language court and tribunal forms, development of guidelines for judges, court staff and lawyers on how to assist self-represented litigants, and an assessment of case management practices.

• Adapt mainstream alternative dispute resolution (ADR) to be more culturally appropriate for Aboriginal and Torres Strait Islander people and undertake a cost-benefit analysis of culturally specific ADR services for Aboriginal people.

VCOSS has joined with the community legal sector in calling for all levels of government to work with the sector to implement the Productivity Commission’s Access to Justice Arrangements recommendations to improve access to justice for people facing disadvantage and remove restrictions on advocacy and law reform using public funds.