Clearly none of the six majority senators of the committee on legal and constitutional affairs have had much to do with the victims of courts and the law in Australia.
Judging by the recommendations they brought down last week, they have been either subverted by the legal profession or they are blind. Their findings are contradictory and their suggested remedies will only make the situation worse.
On Page 5 they say: “”The committee believes that Australia has a basically sound legal system which nevertheless is in urgent need of substantial reform. The disrepair is of such a degree that is will require continual attention who share the responsibility for the situation and who, through that responsibility, have an opportunity to contribute to making the system what it should be.”
That is the equivalent to a mechanic saying: “”Your car is basically sound, but it needs a new engine, gearbox, driveshaft and chassis and you better drive with a couple of mechanics in the back seat to fix it up when it breaks down. Those mechanics, incidentally, ought to be the same mechanics who got your car in its present state through greed, incompetence and laziness. But have no fear, your car is basically sound.”
How can they say the system is “”basically sound”, but is in such bad repair it needs constant attention.
The Australian legal system is not basically sound. It is fundamentally flawed.
The committee goes on: “”The vast majority of the users of the system are touched by it only occasionally in their lives. When they try to use the system and find it unsatisfactory, the consequences, both personally and financially, can be devastating.”
It is true to say people are touched by the legal system only occasionally. However, it is not true to suggest that the system is only occasionally found unsatisfactory.
Litigants almost unanimously find the system unsatisfactory. They nearly always find it is too costly and too slow. Among üThe Canberra Times court reporting and legal staff, for example, none of us can recall a single litigant ever saying their case was cheap, quick, efficient and just. Not one. Ever. And between us we have floated around the courts for decades, from small claims to the High Court.
Yet all of us have experiences of good, cheap and efficient carpenters, plumbers, electricians and mechanics.
The point is that among the trades you find the good and the bad. With the law, I’m afraid, it is nearly all bad. And for the committee to conclude that the Australian legal system is basically sound is just not credible.
The Australian legal system is like the old Soviet Union’s constitution. It guaranteed work, a right to vote, freedom of religion and freedom of speech, and meanwhile ran the Gulag. The Australian legal system guarantees a fair hearing on the evidence, but prices all but the fabulously rich or pitifully poor on legal aid out of the possibility of exercising that guarantee.
The committee correctly stated: “”There is little point in offering an elaborate system of justice which is so expensive few can make use of it.”
But it failed to understand that that is precisely what we have in Australia today. And all the committee offered as remedies were platitudes and ideas that would only add to costs not reduce them.
Under a heading “”Principles” (which should have been headed platitudes) is said: “”The legal system must provide access to justice of as high a quality as practicable. Lawyers must act in accordance with high ethical standards. Decisions must be fair. Judges have a marked responsibility to see that they produce equitable outcomes expeditiously and at a reasonable cost .” and so it goes on.
It is appalling. Having sat for weeks and having heard reams of evidence, is that the best the committee can come up with: decisions must be fair; lawyers must be ethical; and the cost of justice should be reasonable?
Talk about stating the bleeding obvious.
Stating the worthy ideas is useless. Stating how those ideals are to be achieved is what counts. But what were the committee’s recommendations?
1. “”That the Senate provide the committee a continuing reference enabling it to monitor and report annually (on costs).” _ More expense and more cost. If the Senate were sensible it would not allow this committee to inquire into anything ever again.
2. “”That each court, tribunal, legal professional association, legal-aid body, law school, legislature and relevant government department report annually and publicly on what that organisation has done to increase access to, or reduce the overall cost of legal services and litigation.” _ More bureaucracy. More expense.
3. “”That the Australian Bureau of Statistics collect and publish, on a continuous basis, statistical material relevant to the legal profession and the legal system in Australia. The Australian Institute of Judicial Administration should analyse, assess and prepare reports on this information.” _ Ditto.
4. “”That the committee have responsibility for convening a regular legal forum, open to the public, at which.” Blah, blah, blah, blah, blah.
After 350 written submissions (the vast majority from lawyers and legal bodies) and 12 days of hearings in six cities over two years, we basically have a recommendation that we continue looking at the problem.
What about doing something about it?
Two senators mercifully dissented. They at least acknowledged the problem, even if their solution is misguided. They said the legal profession is incapable of self-regulation especially over fees and complaints. However, the two, Chris Schacht and Sid Spindler, recommended an independent tribunal set legal fees. Further regulation is no solution.
The problem with the legal profession is that it abuses its monopoly. It does this by setting high barriers to entry and controlling complaints against itself.
The Attorney-General’s Department was on the right track, but did not go far enough when it sought greater deregulation of the profession.
The Senate committee began its inquiry after a reference from the Senate in May 10, 1989. It was began because of community rage at the prohibitive cost of justice. Its setting up gave high hopes to people that at last something would be done. Not so.
In reality, the inquiry was hardly needed. It was obvious that some radical steps were needed to give back to the middle classes access to law and justice.
Lawyers have clothed their skills in mystery, like Medieval guild members. The law must be demystified. It should be taught at school. With more knowledge of the law, people would be in a better position to resolve their own disputes.
Legal training should be shortened. We should have many more lawyers hanging out their shingle, to increase competition and to drop the price.
Legislation must short and written in plain English. It is nonsense to suggest this will cause more problems than it will solve. It cannot make the position any worse than it is now. The Corporations Law, for example, in its present long black-letter form attempts to create certainty through detail, but only causes confusion through incomprehensibility. In 1991 Parliament passed 6905 pages of legislation. Enough, I say! These senators should have recommended that the Federal laws of Australia be restricted to 1000 pages, and no more should be enacted until an equal amount is repealed.
The legal profession should be fused. One lawyer should be able to carry a case from the client to the court. Court rules that add to costs should be axed.
Complaints against lawyers should be heard in public, with the lawyer named from the outset, by a tribunal with a majority of non-lawyers.
The small-claims courts should be widened. There should be more of them and their jurisdiction be raised to $10,000, but no costs should be awarded in them. They could be staffed by people straight out of law school, where they would also learn mediation, and by retired professionals who would get some training in the law.
Small-claims courts, and indeed all courts, should also have a large settlement function. The present approach of winner-takes-all would not apply. The judges (or assessors) could have a quick view of the case and offer settlements based upon likely results if the case went to a full hearing. “”You have an 80 per cent chance of getting $10,000, so I think $8000 is a fair thing.”
People who want access to justice and are denied it by high costs and inability to present their own case, should have another option _ getting a more articulate friend to put their case, providing the friend does not charge.
These deregulatory, competitive things will do a lot to reduce the cost of the law. The lawyers would scream blue murder, saying the foundation of our liberty would be cut from under us, etc etc. But for too long the legal profession has sheltered behind the belief that our system of justice is first-rate and should not be radically altered. It acknowledges that justice costs a lot, but has won the argument against change by saying that, of course, first-rate justice costs a lot.
It is time that myth were debunked. A system that prices people out of it does not provide first-rate justice; it provides no justice at all.
A system that provides hearings of exquisite fairness to only the tiny few who can afford it while the rest get no hearing at all, cannot be basically sound.
Justice should not be expensive. It boils down to words, paper and a hearing room. It is not like building a house which requires bricks, mortar, metal and other material.
The Senate committee has promised further reports, saying this is just a start. Well, it’s a very poor start. The minority senators said the legal profession had failed to come to grips with the community rage over the high cost of justice. It appears that the majority of the committee itself is suffering from the same problem.