Lawyers will lick up most of the Federal Government’s $160 million in a very short time. Throwing money at an already hideously expensive justice system is no lasting solution. Some extra loot for single mums, Aborigines, the handicapped, migrants and women is harmless enough, even if lawyers will take much of it. But it will not do anything to change the fundamentally expensive nature of the labour-intensive Australian justice system. That can only come through a headlong attack on the adversary system; the Alice in Wonderland evidence rules and the Federal Government’s own prolific output of useless law. Let’s take the statute law first. The Justice Statement said “”The Government is already simplifying the law in a number of areas, for example the Corporations Law . . . ”. This statement is from a government that put through a 1350 Section Corporations Law of 1092 pages in 1989 and then did 290 pages or amendments to it the following year.
This is from a government that passed 6905 pages of legislation in 1991 and 6138 pages in 1992 and similar amounts in 1993 and 1994. This compares to 1860 pages in 1980. Imagine the amount of costly lawyers’ time it takes to get across that amount of legislation. The Justice Statement says the Government has begun initiatives to put the law on computer. In fact the Attorney-General’s Department has spent nearly $1 million in the past year mucking around to get Federal statute law into a Windows-CD format what you can buy commercially for under $400. (It’s on my desk, Mr Lavarch, if you would care for a demonstration.) The Justice Statement did not address the laws of evidence or the adversary system. But they are responsible for most of the cost and, probably most of the injustice. In the adversary system, the case is run by the lawyers for each side.
The judge is not permitted to call for evidence and rarely asks questions of witnesses. Each lawyer aims to win and will use almost anything to that end. In particular, they will use the very technical rules of evidence to exclude whatever is damaging to their case and to include whatever is prejudicial to their opponent’s case. At the end, the winner takes all including costs. A system less conducive to finding the truth, a speedy compromise or justice is difficult to imagine.
The rules of evidence allow something in or exclude it. There is rarely the half-way position of allowing evidence in, but giving it less weight according to how tainted its source is. The result is that juries often get jig-saw pieces with bits missing or judges have to ignore evidence they have heard but is technically excluded. The Justice Statement did not deal with criminal law or jury trials because they are largely state matters. None the less they illustrate the inefficiency and injustice of the adversary system. About half the accused who go before the NSW District Court get acquitted. The percentage is much higher in other jurisdictions. So either a lot of innocent people are unnecessarily facing trial or a lot of guilty people are going free, or a bit of each. A more effective and just system would weed out more of the innocent beforehand so there would be fewer trials with a higher conviction rate. That would happen if the system was known to produce the truth more often. As it is, under the uncertain lottery of the adversarial system an accused may as well give it a run.
Police may fit some people up, but surely not more than half that go to trial. The adversary system and present evidence rules are costly, inefficient, unjust and not addressed in the justice statement. The lawyers’ truth that there is no better way of achieving the truth than having a fight is an expensive lie. On the other hand, the Justice Statement’s proposals on fee statements by lawyers, contingency fees, advertising, a national practice and non-lawyers doing work at the legal fringe are worthwhile, but they can only have a minor impact on overall legal costs. Besides, most of these are partially in place.