A Focus on Access to Justice – Law Week 2020

As Western Australia’s peak professional body and voice of the legal profession, the Law Society of Western Australia believes that now, more than ever, people need access to vital information about their legal rights and responsibilities.

In these uncertain times, the legal profession and community came together in an online environment to discuss ‘Access to Justice in 2020’ as part of the celebration of Law Week. Co-hosts Business News Editor Mark Beyer and the Law Society of Western Australia President Nicholas van Hattem, were joined by five panellists with WA Attorney General, The Hon John Quigley MLA, a late apology.

The forum canvassed a range of topics under the umbrella of ‘Access to Justice’ including the new pro bono model, the impact on the legal profession of COVID-19 and justice reinvestment.

From July 1 all firms who undertake legal services for Government will be required to provide legal services in WA for ‘approved causes’ to the value of at least 10 percent of their State Government work.

Corrs Perth Senior Associate and Pro Bono Co-ordinator Clare Mould who originally proposed the new pro bono model for WA said she believed the new legislation will make a difference.

“It will incentivise firms to allocate a greater share of their resources to pro bono activities,” she said.

“If more resources are put into pro bono activities, this will mean greater access to justice.”

Aboriginal Family Legal Services Chief Executive Officer Corina Martin highlighted the fact the regions tended to miss out on these services due to the high cost of sending a lawyer to work in the regions.

“One of the other things we would like to look at is whether the law firms can put someone in one of our offices to work with our lawyers on matters,” she said.

Chief Justice of Western Australia the Hon Peter Quinlan emphasised that the promotion of access to justice has to start on the first day of law school.

“Law students need to understand they are going into a profession with obligations which they will always have and which extend to providing access to justice to those who would otherwise be unable to afford it,” he said.

All panellists agreed this reform in providing structure around the provision of pro bono services was a positive step in improving access to justice.

The COVID-19 pandemic has forced all businesses to change the way they operate including the legal profession.

It has shone a light on some long-standing issues regarding legal processes including the use of digital signatures, electronic lodgement and remote access to courts.

Creating a balance between more efficient policies and ensuring the most vulnerable in the community can receive access to justice was discussed by the panellists.

Community Legal WA Executive Director Sharryn Jackson said they had been incredibly appreciative of the Courts’ assistance during this time but were concerned that some reforms may disappear.

"To deal with the backlog in the courts, we need to look at consistent policies, consistent ways of dealing with applications and better case management,” she said.

“They are all necessary to complement, electronic and online methods.”

Mental Health Law Centre Chief Executive Officer Shayla Strapps said time-saving measures such as court adjournments via phone had been very helpful but, for their vulnerable client group, it was important to have in-person support.

“It would be really great to see the justice system being able to carry some of the really positive things we have found (through COVID-19) into the future so it frees up some resources for the lawyers, but also for the courts,” she said.

“We can then direct those resources to the really vulnerable population because they are the ones that need it.” 

The Chief Justice agreed that there had been some benefits associated with telephone hearings but stressed that, in some hearings, the attendance of counsel and parties is important as part of the public aspect of the provision of justice. 

"It’s going to be a matter of finding that balance; for those matters which can be and ought to be dealt with as speedily and as efficiently as possible we harness some of these steps that we have put in place,” he said.

“But that we keep at the forefront of our minds the importance of the public aspect of the courts and of the administration of justice.” 

COVID-19 restrictions and social isolation have raised to the forefront concerns around mental health, increase in domestic violence and tenancy disputes. In May the Federal Government announced an extra $63 million in funding for frontline legal services to specifically address these concerns in addition to insurance and debt related problems. The panel addressed the question – is it enough and will it make a difference?

Ms Jackson said whilst the funding is welcome, it is a long way short of what is needed. 

“Our centres are reporting a significant increase in demand for advice and assistance in the areas of tenancy, employment law, social welfare law and in family domestic violence,” she said.

She explained that many of their clients have multiple complex problems and she urged agencies to use triage tools like the legal health check to identify legal problems early and refer them for advice before matters got out of control.

Ms Strapps said she expects to see an ‘avalanche’ of mental health issues from across the community and was concerned that Western Australia may only receive a small percentage of the $63 million. She also agreed with the Ms Jackson about the complexity of their clients’ matters.

“Our clients and all community legal services clients are complex, they have a raft of issues that don’t neatly fit into one basket,” she said.

“We would really like the government to look at rethinking how those sorts of services are funded.” 

Ms Martin said in two regions, AFLS lawyers work alongside social workers which has been successful so far. 

“Legal centres are not just for lawyers, you really need to have those support systems in place for the clients that come in and provide the services that they require,” she said.

She explained that when providing funding for Aboriginal people it is important to remember that Aboriginal people are not all the same, as there are many different cultures, and hopes that Government recognises that funding Aboriginal organisations will provide for better outcomes as they have the knowledge and understanding culturally of their own people.

The last topic was Justice Reinvestment - the redirection of public money from imprisonment to strengthening individual and community capacity.

The Law Society has created the Law Lore project which aims to support a reduction in the high rates of Aboriginal and Torres Strait Islander youth contact with the WA justice system. It involves building and training a strong Aboriginal and Torres Strait Islander Youth Leadership Team to facilitate a Human Centred Design process with high risk communities. In the long-term, it provides capacity building for young people and empowers youth led initiatives to address issues affecting them in their communities.

Mr van Hattem said the project engaged with young Aboriginal people providing education on topics such as access to justice and rule of law, with the goal of reducing fear of the WA justice system.

“It’s a reminder we need to be turning our attention to not just what’s happening where we can see things in the city but focusing on regional areas as well,” he said.

Mr van Hattem said broadly the concept of justice reinvestment is a really important concept, it has already emerged as a theme in state politics.

“The Law Society is very supportive of measures that will serve to both reduce crime and reduce costs to the taxpayer,” he said.

“Our strong position is that putting more people in jail for longer does neither of those things whereas using funding more strategically and innovatively is generally going to lead to better outcomes.”

An audience member asked the panellists why judges were becoming increasingly lenient in punishing those who commit crimes whilst they are on drugs.

The Chief Justice noted that the public perception of the severity of sentences has been an ongoing matter of controversy.

“The reality is in Western Australia at least, that judges are not less severe than in other places in Australia,” he said. 

"Drug use during the commission of crimes is not a mitigating factor. Usually it is explicitly said in sentencing that it does not excuse the conduct.”

The Chief Justice said when it comes to the health issue surrounding drug addiction the broader system has a role to play in identifying drug addiction as being a substantial cause of a lot of offending behaviour.

Although steps have been made to ensure greater access to justice the panellists agreed more work needs to be done in the areas surrounding funding and resources directed to the most vulnerable.

The Law Society of Western Australia is the peak association for legal professionals in Western Australia and continues to advocate for greater access to justice in the community. To find out more about the Law Society and any future events head to lawsocietywa.asn.au or facebook.com/LawSocietyWA