There was something missing from the Prime Minister’s promise this week to cut company tax and to provide cash rebates for child care. Where was the independent inquiry? Where was the reference to the parliamentary committee? Where was the inter-departmental committee? Where were the public submissions?
Why is it that on some occasions, our politicians can virtually click their fingers and announce major legislative and policy changes, yet on other occasions we get a raft of inquiries and submissions and nothing ever gets done. üYes Minister’s@ Sir Humphrey is right, if you don’t want to do something, have an inquiry. And thus is was with the inquiry by the Senate Standing Committee on Legal Constitutional Affairs into the cost of justice. In effect, it recommended further inquiry. Further inquiry is not needed. The community knows that justice is too costly and is invariably delayed. In other words jusstice is denied.
It is now no longer a question of cost overruns in a fews cases, or a few people not being able to afford access to the legal system. Australia is now at the stage where only the very wealthy and the desperately poor with legal aid can go to court. And the blame for this state of affairs must be squarely laid at the legal profession.
The minority report by Senator Chris Schacht and Senator Sid Spindler was correct. The legal profession is incapable of self-regulation, both for fees and for complaints.
Some urgent reforms are needed. And many are obvious. No more inquiry is needed. The legal profession should be fused, vertically and horizontally. There should be no expensive distinctions between barristers and solicitors. There should an Australia-wide recognition of the legal qualifications of one state or territory in every other state or territory.
A lot of semi-clerical work should be open to competition from other professions: conveyancing and probate are good examples. Complaints against lawyers should be heard by a body with a majority of non-lawyers. Settlement procedures should be encouraged. Many lawyers, grounded in the adversary system, tend at first to encourage clients into fighting, rather than settling early. Innovative things like conferences without lawyers before a settlement mediator who would suggest settlement terms on what a court is likely to award after a full hearing. The dangers of the winner-take-all approach of the full court hearing would be obviated.
Parliament is partly to blame. Year after year, it churns out volumes of legislation (6905 pages in 1991) which few read and even fewer understand.
The law must be demystified. It should be taught comprehensively in schools so people have a greater ability to deal with their own problems.
But most of the problem lies with the legal profession. Essentially, it has abused its monopoly. Combined with other circumstances it has resulted in the great majority of the people being shut out of the legal system. Moreover, even those who do use it are dogged from Day 1 with over-powering considerations of cost rather than the merit of their case. The issue of legal costs has a far more profound influence on the pursuit of justice than virtually any other factor. These conclusions can easily be drawn from evidence presented to the committee itself, but the majority chose not to draw them, preferring instead to call for more inquiry. The public does not want more inquiry. It wants change.
The committee found that most Australians’ experience with the law is a once-in-a-life-time sort. That may be so. It might explain why action is politically a 10th-order issue. However, for those unfortunate enough to be embroiled in it, it is usually a souring experience.
The only joy is that the legal profession has priced itself so far out of the market that people are seeing the sense in settling their own affairs. However, settlements based on fear of costs are not very satisfactory. They usually favour those with the deeper pockets. Further, a reasonable defendant can still be embroiled against his or her will by a malicious plaintiff.
The committee has promised further reports based upon the evidence it has gathered over the past two years. Let us hope it redeems itself by recommending suggestions that will reduce the cost of justice, not add to it by having more inquiries.