Recognising the failure of our adversarial system to deliver access to justice

Fundamental to our system of justice is the idea that parties to a dispute are adversaries, and that their dispute must be decided by an impartial judge who is not permitted to take into account any evidence other than that presented by the parties. The traditional adversarial system relies on the parties using their own resources to find and present evidence to the decision-maker. It has a proud history and has long been put forward as an ideal model for resolving legal issues. Indeed, it is often referred to as the “Rolls Royce” model of justice. However, when individuals disadvantaged by reason of their socio-economic status, disability, race or other attribute; try to utilise the Rolls Royce model, they often are unable to even open the door. Ironically, it is these individuals have the highest rates of interaction with the justice system, and yet are the worst served by it.  Without adequate access to legal representation, or funds to secure the evidence required to prosecute their case, many of these people do not have real access to justice.  In fact, in many areas of law, community legal centre lawyers advise their clients against bringing a case in a formal adversarial system, regardless of the merit of the matter, simply because the client does not have the funds or stamina to fund and organise protracted litigation within the adversarial system.

To some extent, governments have attempted to respond to this problem, by incorporating elements of alternative justice systems into mainstream models, such as inquisitorial systems and state prosecutorial bodies. The introduction of the Fair Work Ombudsman, who has prosecutorial and enforcement powers, is one of the most recent examples of this, and has been heralded as a powerful tool in addressing systemic breaches of the Fair Work Act 2009.

However, in most areas, Australian law still relies predominately on the adversarial system. It is on these areas that the social justice sector focuses much of its energy, by lobbying for increased access to justice through the incorporation of mechanisms from alternative legal systems, such as low cost Tribunals and through increased state intervention.

For example, in the federal discrimination law system, matters can only be heard in the very formal Federal Courts or Federal Magistrates Courts, both of which rely on the adversarial system of dispute resolution. This requires an already disadvantaged individual to fund the gathering and arguing of evidence, and to withstand personal and public attacks on their character during cross-examination. If they are successful, the average award is $20,000, far less than their legal costs. It is frequently the case in discrimination matters that the applicant bringing the complaint is not the only person to have experienced the discrimination in question. The discrimination may be in the form of a broader policy or process that has a discriminatory effect on people with certain characteristics, the satisfactory resolution of which may be a matter of significant public benefit.  Yet, we require the individual applicant to risk their assets and reputation to pursue these matters for the public good through a formal adversarial system, often with far fewer resources than their opponents. It truly is a system that pitches David against Goliath. Unfortunately, in our system David rarely wins, because he does not have the resources to get to the battle.

The introduction of elements from alternative systems would go some way to facilitating access to justice in the discrimination jurisdiction. No-cost tribunals or state-based enforcement mechanisms such as agency complaints, for those who systematically breach discrimination laws are just some of the options that could be considered.

Another group systematically disadvantaged by a lack of access to justice are individuals living in boarding and lodging accommodation, who are often among the most vulnerable people in our community.  In NSW, boarders and lodgers fall outside the protection offered by the laws governing residential tenancies. This means that when faced with problems such as eviction without notice, a rental increase, stolen bond or even a leaky tap, their only option is to proceed to the NSW Supreme Court, and to argue their case in the traditional adversarial system. The cost of doing this is currently $894 in filing fees, and $1,786 for the allocation for a day of hearing. That does not include legal costs. Redfern Legal Centre has been arguing for many years that boarders and lodgers should be given easy access to a low cost Tribunal, like the Consumer Traders and Tenancy Tribunal.

In Redfern Legal Centre’s other specialty areas of legal practice, we have been arguing for increased enforcement powers for the Telecommunications Ombudsman (in relation to complaints about mobile phone contracts) and the Police Complaints Ombudsman, again with the aim of moving our clients out of a pure adversarial system of justice to a more effective model.

If I were Attorney General, I would promote the idea that the philosophical purity of the adversarial system is not the only or even the best answer to the problems of injustice in our society. We also need to admit that the adversarial system is not necessarily the best model in all situations, and that many of our modern court systems incorporate elements of alternative justice models, with the worthy aim of increasing access to justice for all parties involved.

To take a bigger step towards the goal of achieving access to justice, I would promote a multi-faceted approach to the design of our legal systems, whereby multiple and parallel models of dispute resolution are considered as a starting point. We need to consider alternative models of justice including the inquisitorial system without the smug prejudice that has usually characterised discussions of access to justice. Perhaps a Fiat is not a Rolls Royce, but in the narrow cobbled byways of justice it may be a more efficient means of getting to our destination.

Joanna Shulman is CEO of Redfern Legal Centre, a community legal centre in NSW specialising in discrimination, employment, housing, domestic violence, credit/debt, consumer, policing and administrative law.