It is unfortunately a harsh reality that not everyone can afford a lawyer. The limitations of our system of justice become apparent when bodies such as Legal Aid, which are government funded and exist to assist with providing access to justice, do not cover every field of law. Some of the areas of law that Legal Aid does not provide advice for include:
Legal Aid can offer free advice in criminal law, family law and certain areas of civil law. But sadly, Legal Aid does not have the resources to aid every matter that falls within these areas of law completely. Because of this, unlucky people are forced to give up enforcing their legal rights, have little to no knowledge of what they are entitled to, or they must attempt to enforce their rights themselves.
A Parliamentary Inquiry conducted in the early 2000’s by the Australian Government found that the current Legal Aid arrangements are unfair and do not make our justice system accessible. There was evidence of growth in the number
of self-represented litigants across our legal system. Such people are disadvantaged when attempting to deal with a complex legal system that was designed to interact with solicitors and barristers and not self-represented litigants.
LawRight, a community-based organisation, in a conference in 2017, discussed the increase in self-represented litigants in civil proceedings, and the implications this has on access to justice and the rule of law in Australia.
Our judicial system is an adversarial one. That means two sides present their cases in a court of law. This implies that if one side has a lawyer, and the other side does not, that the unrepresented side is at a considerable disadvantage. Bear in mind that the High Court of Australia in 2006 held that every Australian has the right to a fair trial. But if you are unrepresented and you don’t know the rules of Evidence, or how to question witnesses and victims, and your opponent can, is your trial truly fair?
Now remember, in many cases, judges themselves disagree as to what the law states is the required outcome. For this reason alone, we have majority and minority judgments in many legal cases. If these experts, these legal titans with decades of experience can disagree, it can be an extremely difficult position that a self-represented litigant finds themselves in, facing the difficult task of learning about the legal system as it applies to them in their particular scenario. Especially if that unrepresented litigant has been denied bail and is behind bars on remand. Bear in mind that lawyers had years to do this, with university professors as teachers, thick legal textbooks, fellow students and friends.
The law isn’t a simple thing. Experienced judges can arrive at completely opposite conclusions, for example, every case with a minority (dissenting) judgment is proof of this. The Hon Michael Kirby was a former Justice of the High Court of Australia and had a nickname as the “Great Dissenter”, due to his notable dissent rate. Successful conviction appeals that quash the original conviction(s) are further proof of this fact (such as Mr Pell’s case).
A system of justice is to be measured by how it treats the most marginalised members of society. That includes the poorest and those accused of the worst crimes. By having a reality in which some people effectively have very limited access to justice, shows that considerable reform of our legal system is necessary.