Access to Justice report which came down last week acknowledges there is no single, easy solution. It suggests about 100 small to large changes that can help bring costs of courts and lawyers down without draining the public coffers: increasing competition, forcing lawyers to tell clients about costs, getting courts to manage cases and so on.
Good, let’s do all of them. But let’s go further. The first is to question whether the adversarial system is always doing the job. Two lawyers slugging it out before an impassive and impartial judge is not the best way to solve all disputes. Someone is bound to get hurt. One side wins and the other side loses.
Moreover, the lawyers are not interested in a just result, or a true result. They are only interested in the best result for their client. In taxation and commercial law this results in an endless battle between loophole-searching lawyers and patch-up legislatures. The corporations, taxation and bankruptcy laws of Australia are an unreadable, purposeless, inconvenient, chaotic, inefficient mess (and there’s more on that in today’s computer pages).
The convoluted laws are the legacy of the adversary system.
“Ah, yes,” I hear the Law Society say, “”But what are you going to replace it with. It has protected our liberties for centuries.”
Well, I do not propose replacing _ just adding.
With revenue and bankruptcy law (where one citizen faces the state), we should have two styles of law: one plain English and the other black-letter. When you put your tax return in, you opt for which one you want to apply. The former is written plainly but contains a lot of discretion on the part of the commissioner to impose tax. It is for citizens who want to know what the law is and deal with tax authorities plainly and honestly. The latter is for those who want to know the letter of the law in fine detail with no discretion on the part of the commissioner. It is for the people with artful family trusts overlaid on companies and partnerships and holding deposits and accounts in Vanuatu.
The question is: why should the vast bulk of the rest of us be saddled with an incomprehensible tax law because of the antics of a few artful dodgers? We shouldn’t. So let them have their law and we can have ours.
Same with bankruptcy. The antics of the Bonds and the Skases and the high-fliers of earlier recessions have resulted in the mass of honest bankrupts (yes most of them are, ask the idiots responsible for jacking up interest rates in the last recession) having to deal with an unmanageable, unreadable Bankruptcy Act. Once again, let’s have two Acts and the debtor can select.
Even in company law, a company setting out could opt for the simple law or the complex one. The later would have plenty of discretion with clauses like: “”Directors will act honestly and diligently. Penalty two years”, rather than a 10-page black-letter law code.
As to the adversary system, it stays. But we add on an optional inquisitorial system.
“But we already have alternative dispute-resolution processes,” the Law Society says. Yes, but that is still adversary, in private and still quite costly. And it can continue.
An inquisitorial system would have the judge in civil disputes asking the questions of the parties and their witnesses. Lawyers may advise the in background or there may be no need for them.
The Access to Justice report shows that the “”justice” system excludes and discriminates, mainly on the ground of cost. The law is only for the very rich, the legally aided very poor and the insured. The last category make it look as if the courts are serving all income groups.
If the justice system is to do what the Attorneys-General, the courts and the parliaments want it to, we have to go one step beyond change. We have to change the way we change. We have to go beyond replacement as a method of change (the old is bad, the new is good). We have to change with additions and choices. This method says, the old may work for some people some of the time, so how about we add on some more options so it can work for more people more of the time.