Justice must not be reserved for those who can afford it

Tough economic times mean a growing number of Australians are being marginalised and deprived of access to the legal system, argue Margaret Castles and Alice Rolls.

Photo supplied

Photo supplied

The Albanese Government’s first budget, handed down on October 25, openly warns of hard times to come for the most vulnerable in our society.

The unemployed, low-income earners and people on government support are going to be doing it tougher – the cost of food, rent, electricity, fuel, transport, and medical care are all going up, but wages and income support are a long way behind.

The social justice implications are clear – more people will go hungry, go without care, lose their homes, have nowhere to live, and suffer all the disruption and distress that flow from these impacts. Meanwhile, the wealthy are cushioned – able to afford increased mortgage payments, investment properties to fall back on and more able to make cuts to discretionary spending to support the basic necessities of life.

Working in the community justice sphere, it quickly becomes apparent that the financial and economic pressure experienced by the vulnerable in our community leads to significantly more, and more difficult, legal challenges. And it does not stop there. The ‘vulnerable’ – once considered to mainly fall at the very bottom of the socio-demographic curve – have expanded to include a large sector of low and lower middle-income earners who simply cannot afford to pay for a lawyer when things go catastrophically or cumulatively wrong and when their only recourse is legal action.

The Law Society’s Justice Access Committee, along with the entire community justice sector, advocates for more and better accessible justice services every year, and has done so for decades. But for decades, the contribution by State and Federal governments to the community legal sector has been reduced, managerialised and, increasingly, become a bidding war between competing community service providers.

The days when community law services could routinely run a legal case or provide ongoing support to a client are long gone, with one-off advisory or assistance services supplementing self-representation in most areas of dispute (the exception being criminal law which still generally falls under the umbrella of legal aid).

The purpose of this opinion is not to complain (again) about the punitive limits to legal support funding, nor to rail against the pressures that cause private legal costs to be out of the reach of so many ordinary Australians. Rather, it is to focus on the silencing of a growing sector of the community through the combination of economic depression and lack of access to justice.

Speaking from the perspective of the Adelaide Law School Law Clinics program and associated Accessible Justice Project – where law students or new law graduates under the supervision of solicitors provide free or low-cost legal advice to members of the community who cannot realistically afford a lawyer – we see the effect of these convergent pressures.

Clients who are evicted without due process, or with no one to help them to talk to the landlord to reach a workable solution; clients who are ripped off by utility, phone or lending providers, or have signed oppressive contracts; clients who have neither the words nor the know-how to challenge actions of government to get fair outcomes; and clients who have a relatively minor problem in the grand scheme of things, but who cannot get advice and support to challenge the obstructive neighbour, the oppressive employer or the unscrupulous trader.

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In terms of legal “voice”, these people are marginalised. No one hears their concerns because the phones are not answered, emails are not acknowledged, online complaint forms are not suitable for the particular issue, and the first response by the bank, the business, the service provider or the government department is dismissive and generalised. The person does not know what to do or where to go next.

People’s legal concerns are silenced – they are ignored, they are lost in the hierarchy or the bureaucracy of the offending respondent, or they are wrongly advised that they have no case

If you are reading this article, you probably know exactly how to get attention, to go to the next level, to leverage the “squeaky wheel” dynamic. You can probably articulate your concerns in a logical and persuasive way, convince the recipient to take you seriously and, in most instances, give you what you ask for.

This is not the experience of the people we are talking about. Justice access is historically seen as a chance to take your dispute to court, but that of course is not the issue. Few of these problems are worth the cost, time and resources of legal action, and they would never get to court anyway. The issue is that, between not doing anything and going to court, there is vast array of options that people cannot trigger because their position, skills, resources and access to advice and organisational know-how is lacking. These people’s legal concerns are silenced – they are ignored, they are lost in the hierarchy or the bureaucracy of the offending respondent, or they are wrongly advised that they have no case.

Voice is not only a factor of standing up and being heard, writing complaints or accessing social media. It is also about living in a society where your voice is heard at multiple layers every day, including the companies you deal with, government decision-makers or people who sell you things, provide you with services or regulate the social supports you need.

It takes more than effective and persuasive argument on behalf of one person to make a difference to the practices of a landlord, a bank, a service provider or an educational institution. It takes the voices of many, all able to press their concerns, articulate them, and insist that they are acknowledged and responded to.

When we think of justice access, we should not forget that justice happens in the day-to-day of our lives – at the shops, on the bus, at the Centrelink or Housing office, with utility providers, educational institutions, hospitals and neighbours. Justice doesn’t just mean going to court when something goes wrong. It means being able to voice concerns, be heard, seek accountability, and pursue explanations and outcomes.

As we face even more stringent pressures in the coming years, let those of us who are privileged enough to be decision-makers and influencers in our own workplaces do all we can to facilitate real day-to-day justice access for those who need it the most.

Margaret Castles is a lawyer and mediator who currently serves as Senior Lecturer and the Director of the Clinical Legal Education Program at Adelaide Law School.

Alice Rolls is Head of Policy and Strategy at the Australian Pro Bono Centre and a director of The Accessible Justice Project. She was previously a Principal at LK Law in Adelaide.

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