A series of radical changes to legal and court practice were recommended yesterday by the Access to Justice Advisory Committee.
It said high lawyers’ fees were preventing people from asserting their rights and that governments and courts could do more to improve the cost, speed and access to justice. however, there was no single, simple solution.
Among its recommendations were: contingency fees (no-win, no-fee); lawyers to freely advertise everything, including fees; abolition of scale fees and a requirement that lawyers tell clients the fees beforehand; an complaints body independent of the legal profession; televising of some court proceedings; abolition of wigs and gowns; more and better directed legal aid; more alternative dispute resolution; more court-controlled case management; a review of court fees which should not be user-pays; simpler legislation; cheaper electronic access to legislation on database; better harmony of the laws of the states.
The committee said, “”We think the plan we have proposed offers an unparalleled opportunity for the Australian Government in particular to improve access to justice for all Australians.”
But it acknowledged it could not meet all community expectations.
“”It is often impossible for courts to resolve disputes cheaply and swiftly and also fairly,” it said.
Equality before the law was universally recognised, but the Australian legal system in the past had discriminated against women, Aborigines, the poor and people who could not speak English well.
The Attorney-General, Michael Lavarch, said he would set up a departmental unit, begin consultations on implementing the report without reopening the issues, convene a national forum, consult the states, the courts and Cabinet and then present a justice statement for government action.
The committee recommended extra competition for lawyers.
It said the division between barristers and solicitors in some states caused duplication and added costs. It should be abolished. Some work, such as conveyancing, now only permitted to be done by lawyers in most states should go to non-lawyers. The competition rules in the Trade Practices Act should be applied to lawyers as they are to every other corporate business. The only limits to advertising should be the requirements of no misleading conduct.
“”We also consider that lawyers should be required to disclose to prospective clients an array of information sufficient to allow them to assess the likely costs of the legal services required, on the basis of circumstances then known,” it said. “”Lawyers should be required to advise clients at regular intervals of the progress of the matter and of any charges likely to alter initial estimates of costs or prospects of success.”
Unless the states acted swiftly, on advertising and disclosure, the Commonwealth should legislate to the extent of its constitutional powers.
Abolition of scale fees (usually published by courts) would help competition if done at the same time as requiring disclosure of costs.
The committee recommended a general requirement of written costs agreements.
The committee put some limits on its recommendation of contingency fees. They should not be allowed in criminal or family-law cases. The client would be up for the other party’s costs if he or she lost. To encourage contingency fees the committee recommended that lawyers be permitted to charge an extra amount based on the risk of losing.
The committee sought an overhaul of complaints to make them more consumer-oriented. Complaints bodies should be independent, it said. (They were now often dominated by lawyers). They should be able to award damages and give active help to complainants.
The committee recommended also that courts publish performance standards and report regularly on whether they have been met.
On televising courts, it said family matters should not be televised, but there were ways of ensuring televising courts could be done without lessening the dignity of the court or proceedings.