Access To Justice & Legal Needs: Critical Evaluation & Methodology Essay.

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Reading and participating in jurisprudential discussions contribute to a deeper understanding of law and provide tools to creatively engage in rational criticism of the law and legal systems’ (Michelle Sanson and Thalia Anthony, Explain how your understanding of legal theory facilitates a critical analysis of issues related to access to law and justice in the Australian legal system.

Illustrate your answer by reference to one of the following groups discussed in the Law Council of Australia’s Justice Project:

Children and young people

Homeless persons;

LGBTI people;

People experiencing economic disadvantage;

People experiencing family violence;

People with a disability;

Prisoners and detainees.

Understanding of legal theory facilitates analysis of issues related to access to law and justice

The agreement to promote ‘rule of law’ at national as well as international level ensure equal access to justice for all without any discrimination on the basis of age, gender, or economic status. The justice systems along with the rule of law contribute to sustainable development as well as comprehensive progress and growth. The accessibility and efficiency of the justice services directly influence the manner of resolution of employment and land disputes, in promoting accountability of the government and decision making of the businesses to invest and establish contractual relationships. The citizen-oriented access to justice framework requires conceptualization of legal and justice requirements of the people. As a general modernization goal to increase efficiency within the justice sector, to meet legal and justice requirements is considered as a fundamental mechanism for nurturing access to justice. The effective understanding of the legal theory facilitates critical analysis of the issues related to the access of law and justice in the legal system of a country. This essay is aimed to contribute to the improvement of fair and impartial justice system to address the needs and to improve access to justice by economically disadvantaged people, by gaining effective understanding of the legal theories.

Legal Realism posed challenge to the rule of law theory regarding clear, stable and conventional legal rules applied by the judges without taking into consideration, the social status or conditions. The rule of law opposes decisions of courts because court decisions state the will of judges instead of law. If the laws are made on the basis of point of view of judge about appropriate policy, the faith of people in the law and justice system would decline. But the judicial system or the Legal Realism does not settle the opposing requirements of the legal adaptation as well as legal certainty. As per American Realists, judges are considered to be as the creators of law actually as they deliver judgment on the basis of various ideals, traditions and opinions to bring the law to the surge of society.         

There are various approaches for the measurement of disadvantage and relevant indicators are poverty, deprivation, and exclusion. It means the people experiencing economic disadvantage have low income due to which, they lack essentials in life and are not provided with the opportunity to participate in various economic, social and political activities due to poverty.

Illustration of the answer by reference to one of the groups discussed in Law Council of Australia's Justice Project

It is essential for the people experiencing economic disadvantage to acquire legal assistance which includes availability of legal information, legal aid and advice as well as legal representation as and when required. It is their right to partake effectually in the legal system which includes access to courts and official alternative dispute resolution processes. They must have the right to obtain non-legal support and to partake effectually in law improvement processes. 

Better understanding of legal theories facilitate deeper understanding of law and better analysis of the issues related to access of law to the disadvantaged people in the legal system of Australia. Through legal knowledge, one can gain in-depth knowledge about the legal problems being faced by the disadvantaged people, availability of services as well as processes to deal with such problems, barriers arising in easy access of law and justice, and the benefits of services and processes not being provided by the Australian legal system to the economically disadvantaged people.  

As it had been opposed by Oliver Wendell Holmes Jr., a legal realist, that the courts play significant role in the process of development of law because according to him, law has not been based on logic but on experiences.  The world is continuously experiencing change and by the time the laws and regulations adapt itself to the world, the world has already progressed to another level. The value of legal progress is one of the major structural components of social evolution, which suggests more relevance of law to the experience instead of logic. The law should be regarded as merely one feature of the society, however, majority of sociologists do not agree with the idea of value-free explanation of law and consider it as a controversial matter because one cannot escape their values while describing something. So, they are more concerned about analysing and interpreting the contribution of law and legal administration in affecting certain forms of behaviours or conduct. The effective knowledge about legal analysis and interpretation develops a view that all the sections and strata of society should be equally considered before law and they should not be discriminated on any basis in the eye of law. 

However, the prospective to search for the legal resolution to a problem shows legal need, the decision not to do so does not mean non-existence of legal need. An individual might prefer to solve their problem by themselves or through other alternative ways of dispute resolution instead of taking the matter to the court. It cannot be concluded that individual does not have legal need. In certain circumstances, even if an individual prefer to have alternative to the legal system to resolve the issue, they might perceive taking the matter to the courts and tribunals to be a cumbersome and expensive process. They might sometimes be concerned about the financial resources as well as time consuming. Majority of studies based on ‘access to justice’ emphasize that legal needs presume that individual becomes able to identify when they actually have legal need. In the year 1998, the Law Society of NSW, in its access to justice review, focused on the right to partake in the justice system supported by the leading light that the justice system is perceived to be accessible and inexpensive, is easily understood, and is efficient, just and effective.  It suggests that fulfilling legal needs is restricted to the matter of ability to participate in the justice system.

In 1994, the Access to Justice Advisory Committee was appointed by the Commonwealth Government. The Committee specified that the concept of ‘access to justice’ comprises of three elements i.e. equality of access to legal services, national equity and equality before law. The first element which is, equality of access to legal services guarantee access to quality legal services to all regardless of means for the purpose of protecting their rights and interests. National equity guarantees that all can enjoy equal access to the legal services as well as to legal service markets. Equality before law guarantees all to be entitled to equal opportunities in various aspects such as education, employment, access to services and many more, regardless of race, culture, gender or disability. 

It suggests that through reading and gaining knowledge about the legal theories and practices, the issues being faced by the people experiencing economic disadvantages can be identified and its resolution can also be realized.

Conclusion:

Better understanding of legal theories facilitates critical analysis of the issues regarding access to law and justice in the legal system of Australia. It has been proved that knowledge about the legal theories and practices assist individuals in dealing with legal issues arising in the society in a lawful manner. In context of economically disadvantaged people, it has been realized that they do not have equivalent access to law and justice in the society but by developing legal awareness among them, they could be included in the legal circumference and could possibly be made significant part of the society from legal perspective.

References:

Australian Institute of Health and Welfare, "Australia’s Health 2016" (Australian Institute of Health and Welfare, 2016) <https://www.aihw.gov.au/getmedia/9844cefb-7745-4dd8-9ee2-f4d1c3d6a727/19787-AH16.pdf.aspx?inline=true>

Chapman, Peter and Alejandro Ponce, "How Do We Measure Access to Justice? A Global Survey of Legal Needs Shows the Way" (Open Society Foundations, 2018) <https://www.opensocietyfoundations.org/voices/how-do-we-measure-access-justice-global-survey-legal-needs-shows-way>

Cunningham, Michelle, David Orsmond and Fiona Price, "Employment Outcomes of the Economically Disadvantaged" (Reserve Bank of Australia, 2014) <https://www.rba.gov.au/publications/bulletin/2014/mar/3.html>

Flynn, Asher and Jacqueline Hodgson, "Access to Justice and Legal Aid" (Hart Publishing, 2017) <https://www.bloomsburyprofessional.com/uk/access-to-justice-and-legal-aid-9781509900848/>

Law Council of Australia, "People Experiencing Economic Disadvantage." (2017) <https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Consultation%20Papers/People%20Experiencing%20Economic%20Disadvantage.pdf>

McLachlan, Rosalie, Geoff Gilfillan and Jenny Gordon, "Deep and Persistent Disadvantage in Australia" (Australian Government Productivity Commission, 2013) <https://www.pc.gov.au/research/supporting/deep-persistent-disadvantage>

OECD, "Understanding Effective Access to Justice" (OECD Conference Centre, 2016) <https://www.oecd.org/gov/Understanding-effective-access-justice-workshop-paper-final.pdf>

Phillips, Ben, Riyana Miranti and Yogi Vidyattama, "Poverty, Social Exclusion and Disadvantage in Australia" (University of Canberra, 2013) <https://www.natsem.canberra.edu.au/storage/Poverty-Social-Exclusion-and-Disadvantage.pdf>

Schetzer, Louis, Roberto Buonamano and Joanna Mullins, "Access To Justice & Legal Needs." (Law & Justice Foundation, 2002) <https://www.lawfoundation.net.au/ljf/site/articleIDs/012E910236879BAECA257060007D13E0/$file/bkgr1.pdf>

Price-Robertson, Rhys, What Is Community Disadvantage? Understanding The Issues, Overcoming The Problem (2011) Child Family Community Australia <https://aifs.gov.au/cfca/publications/what-community-disadvantage-understanding-issues-ov>