An article in The Canberra Times in late January captured my attention by hinting that an expanded role for judges could improve the quality of justice and also reduce costs. The article provided a summary of a submission made by the ACT Legal Aid Commission to an inquiry being conducted by the Productivity Commission into access to justice.
It suggested that the proposed expanded role for judges would follow from a move towards a European "inquisitorial" style of justice which would place less emphasis on the lawyer-driven "adversarial" system. Several aspects of legal practices which were already partly inquisitorial were identified, such as the procedures followed in children's and family courts and the duty of expert witnesses to assist the court rather than the party who engaged them.
It seemed to me at the time that royal commissions and judicial and coronial inquiries should have also been mentioned as examples of pure inquisitorial exercises that are widely used throughout Australia, but before making any general assessment of the submission I decided that I should read the full submission. This took a little while as the 50-plus-page document is packed with detailed statistical information interspersed with many case histories.
I certainly gained a great deal of information about the wide range of services the Legal Aid Commission provides and was concerned to learn that these vitally important services would need to be cut if it did not receive increased funding in the near future. I was also interested to learn of the many proposals made in the submission on changes that could be made to achieve more with less, such as a suggestion that paralegals should be allowed to represent clients seeking bail in the Magistrates Court or pleading guilty in traffic cases, in mental health matters and tenancy disputes.
Little detail was given on how this proposal would work in practice, apart from stating that "appropriately trained and supervised paralegal staff" would have to be carefully selected and that "suitable training and mentoring programs would be a prerequisite". Similarly, no detail was given in the submission as to how the broader issue of moving towards a more inquisitorial system by giving judges a more expanded role was to be achieved. One must hope that the Productivity Commission, if it accepts the general thrust of this submission, will provide the missing detail in its report, which is due later in the year.
One area in which the Legal Aid Commission submission does provide plenty of detail relates to the operation of pro bono services by qualified lawyers. Evidence is cited showing the Australian legal profession undertook nearly 1 million hours of free legal work in 2007-08 with a total value of more than $2 million. That is certainly impressive, but the target is for all legal professionals to donate 35 hours a year and this is apparently a long way from being achieved.
The underlying purpose of many of the ACT Legal Aid Commission submission is to provide as many legal services as possible at "significantly lower cost than legal practitioners whose charge out rates can range from $200 an hour for junior lawyers in a small firm, to $500 an hour for senior associates and $800 for partners in a large firm." Even for those who meet the pro bono target, these are remarkable figures as they suggest that the pre-tax annual income of many senior lawyers would be higher than the annual income of any Australian judge. They are also paid more than the attorneys-general in each jurisdiction; they are responsible for the management of their justice systems.
It must be said, of course, that many other people, including business leaders and professionals in the sports and entertainment arenas, also receive very high remuneration for their work and many of these people are clearly not as hard-working or highly trained as are senior lawyers. The relevant issue here is whether there are any changes that can be made to the way our systems work that would improve access to justice for those people who are unable to pay for legal advice and representation.
There can be no doubt that if there were a massive increase in the funds made available to legal aid services in all Australian jurisdictions, significant improvements could be made, but in the present fiscal climate this is highly unlikely to happen.
There may be more chance of progress if the pro bono system was modified and strongly supported by the relevant bar councils and law societies, for example, by doubling the target to 70 hours a year for senior counsel in criminal and civil practices.
I suggest that the higher pro bone target should be phased in so junior lawyers are not expected to offer as many free hours as their senior colleagues. A general increase in pro bone expectations, however, would certainly improve the public image of the legal profession as a whole and it could also provide the basis for a major improvement in access to justice for the general public.
One further development should be considered, and that is to do whatever can be done to improve the efficiency of the courts. A model that could be followed is that of the High Court and the very strict time limits it sets for the hearing of applications for leave to appeal. In the normal day-to-day workings of the courts it may be possible, for example, to set targets for the time allowed for summing up by both sides or limiting the number of witnesses.
None of this is easy but the two major shortcomings of our justice systems that have been identified for decades, the high costs and lengthy delays, need to be addressed simultaneously if real progress is to be made.
- David Biles is a semi-retired criminologist who lives in Canberra. firstname.lastname@example.org