Notice how closed the debate on legal aid has been?
The argument is over how much money should go to pay lawyers to represent the poor and who should provide it, the Feds of the states.
We should be asking why do we have to tolerate such a cumbersome, inefficient, expensive legal system? Cannot we make justice more accessible and cheaper.
The courts are one of the few places in Australian society that have not had the blowtorch of international competition applied to them _ hence the inefficiency. Magistrates and judges sit only during certain hours. They make all the witnesses, lawyers and parties hang around the courts for their convenience. There is little streamlining and certainly no supply-as-needed approach that made the Japanese car industry so efficient.
Then we have the lawyers, the adversary system and the rules of evidence. You could not devise a more cumbersome system of dispute resolution. Lawyers are paid according to how well they highlight the differences between people. And the rules of evidence foolishly disallow on highly technical grounds the very information that most people in their ordinary lives use to find out what is going on.
Legal aid is given to people to help them face this system. As the system gets more complex, more inaccessible and more difficult, the answer given by the largely self-interested or partly blind legal industry is to increase legal aid. It should be to make the system more efficient and less of a drain on community resources.
Whenever that cry is made, it is met by the legal industry with the response that efficiency will come at the unacceptable price of injustice. Ho hum. The present system has not been to good at delivering justice. Justice is now invariably delayed. Family Court custody cases, for example, are routinely decided not on the merits but on the fact that the court system is so hopeless it cannot get around to making a decision for a year or more and by then it is not fair to the children to move them.
Imagine if you had to wait a year to get the phone or gas on, or to take delivery of a new car.
The legal system is a demonstrable failure and there is no point in wasting more taxpayers’ money in pouring more legal money in to fix it. It won’t; it will only make it worse.
Aboriginal legal aid is a case in point. In the 1970s Aborigines were being jailed at far greater rates than whites and for “”crimes” whites would never be jailed for. So we poured in millions in legal aid. The result? In the 1990s Aborigines are still be jailed at rates not much different from 1970s rates, but we pay millions of dollars in legal aid.
Labor’s Access to Justice report and the Labor Government’s response to it is another case. The legal industry cried for more money and more legal aid to be poured into an uncontrolled system.
But the more you provide public money for lawyers to fight cases in court, the longer and more expensive each case will become. And while we continue to have a system where judges sit on the bench rarely intervening in the conduct of cases, the more lawyers will get away with delay and the unnecessary stringing out of cases.
One lawyer, in great anguish about the legal aid “”crisis”, said the terrible result would be that people would have to represent themselves and cases could go on twice as long. Well, even if that is true, it is a more efficient application of community resources: we have only one legally trained person (the judge) occupied for two days rather than three legally trained people (the judge and two lawyers) occupied for one day. (And often the lawyers are paid more than the judges.)
We should not pick our judges exclusively from people who have been practising adversary-style law for a decade or more. We should train a judicial stream straight out of law school, starting on adjudicating traffic cases and working up to murder and native title, as in Europe. These people would then start controlling cases and actively and efficiently resolving disputes and searching out the truth, rather than permitting lawyers free rein increasingly at public expense.
The crisis is not in legal aid funding, but in the legal system.