HECS-style scheme for lawsuits would improve access to justice, says Professor Stephen Parker

It has been 15-years since Professor Stephen Parker penned the controversial report called Courts and the Public, which was critical of the quality of service offered by Australian courts to users.

But Professor Parker, who is now the University of Canberra vice-chancellor, said debate around the access to and quality of justice had stagnated in modern Australia.

In a bid to rekindle debate on the issue, Professor Parker, in an opinion piece, has proposed a HECS-style system to fund civil court matters.

The legal academic said the community had a lot at stake in encouraging a healthy debate about justice.

"People who feel there is a fair accessible way of solving disputes, making claims or resisting claims are more likely to go about things peacefully.

"And if society at large is confident there is an affordable, well-functioning court and tribunal system then it instils confidence in our democracy and in our system of government."

Professor Parker said the Higher Education Contribution Scheme was based on the idea that education provided both private gain and public good.

Under the scheme, the government pays for part of the university degree by offering cheaper fees. Graduates then contribute roughly half the cost through repayments when they reach average earnings. They do not repay the loan if they do not reach the set income level, or drop back below it.

Professor Parker said a HECS-style legal scheme could operate in much the same way.

He said the alternatives – such as no win, no fee schemes and litigation insurance – were not as attractive.

"I am committed to higher education, but does it rank above justice as a civil entitlement?" he wrote.

"Legal aid, especially for civil matters, is minimal at best in Australia.

"If, however, litigants were potentially liable for the full costs of their cases and the courts which decide them, but then the cost was explicitly shared with the taxpayer, as is the case with universities, through an income-contingent deferred loans scheme, we would bring clarity to the shared cost and introduce a form of means-testing through the income threshold."

Bar Association president Shane Gill said Professor Parker's proposal to adopt a low-cost loan system raised important issues about access to justice.

Mr Gill said it showed that access to justice continued to be beyond many in the community because they could not afford representation, and were not eligible for legal aid.

"This is a situation that cannot persist," Mr Gill said. "It requires strong will on the part of government and the community to prioritise access to justice.

"The HECS proposal is an interesting approach to the issue, giving people the potential to access the justice system when they could not otherwise. For this reason it deserves careful consideration."

But Mr Gill said cost of access to justice should not be seen as an issue for the individual.

"The community accepts that as a whole it must bear the costs of education and of the health system, although individuals may choose to make additional contribution for additional services," he said.

"Access to justice is no less important to the community than education and health.

It ought be considered as something for the community as a whole to bear, rather than leaving it to those seeking justice, Mr Gill said.