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Critically Analyse The Legal Barriers In Accessing Justice

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Question:

Critically analyze the legal barriers in accessing justice faced by the people affected by your Collaborative Justice Project topic and any solutions which have been proposed?
 
 

Answer:

Access to justice is a vital precept in order to address any form of inequality and disadvantage that may arise in the society and, further, it is essential to an inclusive and fair society. In case people do not have adequate access to legal services, it may have an adverse impact on the people, especially the unprivileged[1]. The term ‘access’ implies a right to remedy and the concept of having adequate justice is based on the principle that where there is a right, there is a remedy (ubi jus ibi remedium).

There are certain groups of people who often face difficulties in accessing the legal services for justice. The Aboriginals of Australia are one of such groups who face substantial obstacles while accessing the legal services such as lack of cultural awareness, communication issues, language issues, financial issues, discrimination, remoteness, adequate intimidation, etc. The aboriginals are still the most economically and socially disadvantaged members of the society in Australia. This disadvantage makes the aboriginals highly dependent on the community legal services. It is evident that the aboriginals, especially women, are dissuaded from taking recourse to the mainstream legal services. It has been seen that the indigenous people are relatively less likely to seek help from the mainstream legal service providers as a result of the mentioned barriers[2]. The key concern is the difficulty related with accessing the indigenous language translators. It has often been observed at the aboriginal defendants generally consent to the orders even if they do not understand them or to the orders that are inappropriate for their case as a result of language barriers. It has been stated by the Australian Human Rights Commission that the nuances of aboriginal English can result in misunderstanding between the lawyers and their clients (and consequently the justice system). Similarly, the Woman's Legal Service South Australia went a step further and stated that generally the matters proceed in the courts even when the interpreters are absent which is against principles of justice.[3]

Even some funds have been allocated for interpretation services for the indigenous people, it is difficult to access Internet is due to reasons like low availability and high cost. Similarly this problem is aggravated as a result of the difficulties that are related with integrating aboriginal languages as equivalent terms may not be present in case of the terms that are commonly used by the justice system.[4]

The legal barriers that are present on part of the aboriginal people while accessing the justice system include the lack of awareness regarding their legal rights. Among the significant barriers in accessing justice are the financial barriers for the aboriginal people. Then, the high cost of legal services act as a significant deterrent for the persons who need legal assistance. Unless a person is financially stable to afford the expenses of the court proceedings, it becomes almost impossible for any ordinary person to meet the expenses involved in a court process. Generally, the aboriginals avoid seeking legal advice even if there is an immediate necessary for the same owing to the high expenses involved in obtaining such legal services.[5]

 


Further, geographical barriers also play an important role in restricting the access of the aboriginal people to justice. Therefore the difficulties that are associated with accessing the judicial system are further complicated as a result of geographic isolation and the lack of transportation services. In this regard Australian Human Rights Commission has stated in its report that 68% of the aboriginal people live outside the major cities. Similarly, nearly 43% of these people live in regional areas while 9% are staying in remote areas and 15% of the aboriginal people are staying in very remote areas. It has been suggested by a number of studies that the indigenous people who are staying in regional and remote areas have less legal and political engagement as compared to the people who are living in the capital city of Australia. A large number of people have disclosed that even if they want to access justice but they find it difficult to travel to the offices for receiving legal advice or face difficulties in order to complete the documents.

Some of the other factors that act as a hindrance for the indigenous group of people to access the justice system are the past pessimistic experiences of the aboriginal people and the enduring distrust for the legal system. Similarly, the lack of awareness regarding the ability and scope of law in resolving certain types of disputes as well as the lack of awareness regarding the availability of legal services provided for them also acts as a major barrier. The reluctance of the aboriginal people regarding matters that are considered by them as private and which would need disclosure of personal information to strangers.[6] Similarly, the lack of confidence, empathy and the confidentiality towards the legal service providers and the legal system also act as a significant barrier. The perceptions among the aboriginal people that the legal services are prestigious results, which make them, feel shy to approach the legal services and are easily intimidated owing to their lack of cultural awareness. The complexity and the formality of the processes of judicial system also act as an impediment in approaching justice. Among the aboriginal communities, there is a tendency to resolve problems on their own. As mentioned above, the location of the courts and the legal service providers is far from from where the aboriginals dwell and the lack of public transport acts as an additional barrier. Further, the lack of sensitivity, cultural awareness and compassion among some of the staffs of the justice system and the legal service providers who fail to provide legal assistance to the unprivileged people, in particular, which also acts as a significant barrier.[7]

On the other hand, there are certain lawyers who provide adequate legal assistance in any form of disputes that arises between the aboriginal organizations and individuals. In the same way, there are certain lawyers and other persons who are reluctant to make judgments regarding any disputes arising between the indigenous people. Similarly, there are some lawyers who do not prefer to be considered as someone ‘taking sides’ in a dispute or they do not prefer to align themselves with the particular group of the aboriginal people. Some lawyers and other professionals from the judicial system have the tendency to dismiss the disputes among the aboriginal people as their private matters or cultural issues in origin.

Another significant barrier in accessing justice by the aboriginal people is the reliance of the legal system on documentary evidence was substantiating the claims and the reluctance of the system to accept oral evidence that has been submitted by the aboriginal people. Some of the steps that can be taken to remove these barriers include appropriate communications and early intervention. Communication is considered as being essential for decision-making and personal autonomy. To conclude, the Federal and the State Government are taking initiatives to ensure that every citizen has access to the justice system and enjoy legal aids irrespective of their caste, community, sex and race. The Government is making significant investments in the Community Legal services and the Aboriginal and Torres Islander Legal Services to mitigate all the factors that acts hindrances for the indigenous people to have access to the justice system.

 

Bibliography

Chesterman, J. & Galligan, B. (1997) Citizens Without Rights, Melbourne, Cambridge University Press.

Coumarelos, C., Wei, Z. & Zhou, A.Z. (2006) Justice made to measure: NSW legal needs survey in disadvantaged areas, Sydney, Law and Justice Foundation of NSW.

Cunneen, C. & Schwartz, M. (2008) ‘Funding Aboriginal and Torres Strait Islander legal services: issues of equity and access’, Criminal Law Journal, 32 (1), 38–53.

Joint Committee of Public Accounts and Audit (2005) Access of Indigenous Australians to law and justice services, Report 403, Canberra, Commonwealth of Australia.

Morphy, F. (2007) ‘Uncontained subjects: “population” and “household” in remote Aboriginal Australia’, Journal of Population Research, 24 (2), 163–184.

Wacquant, L. (2009) Punishing the Poor. The Neoliberal Government of Social Insecurity, Durham, Duke University Press.

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