Faster, simpler, fairer justice - Productivity Commission review

Attorney-General Mark Dreyfus QC and Assistant Treasurer David Bradbury today announced the Productivity Commission will examine how to improve access to justice in Australia.

"The cost of accessing justice services and securing legal representation prevents many Australians from gaining effective access to the justice system," Mr Dreyfus said.

"An effective justice system should provide timely and affordable justice for all Australians. It should not be dependent on capacity to pay and vulnerable Australians should not be disadvantaged."

The Government has asked the Commission to examine the factors contributing to the current costs of securing legal representation and accessing justice services, the social and economic impacts of these costs, and whether they are proportionate to the issues in dispute.

The Commission will report on options for achieving lower-cost dispute resolution, including through alternative dispute resolution, the use of technology and expedited procedures.

It will provide advice on data collection across the justice system to enable better monitoring of costs and evaluation of measures aimed at keeping costs down.

Importantly, the Commission will also report on the number of Australians who may not be able to afford to secure legal representation but who also do not qualify for legal assistance.

"The Productivity Commission inquiry will allow us to examine the real costs to Australians of accessing justice services, and provide options that will allow Australians to resolve their disputes more quickly and affordably," Mr Bradbury said.

"The inquiry will make recommendations on the best way to improve access to the justice system and equity of representation including, but not limited to, the funding of legal assistance services."

The terms of reference for the review are attached. More information is available at www.pc.gov.au.

The Gillard Government committed an additional $118 million in the 2013-14 Budget to improve access to justice for Australians.

Terms of Reference

Inquiry into Access to Justice Arrangements

I, David Bradbury, Assistant Treasurer, pursuant to Parts 2 and 3 of the Productivity Commission Act 1998, hereby request that the Productivity Commission undertake an inquiry into Australia's system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law.

Background

The cost of accessing justice services and securing legal representation can prevent many Australians from gaining effective access to the justice system. For a well-functioning justice system, access to the system should not be dependent on capacity to pay and vulnerable litigants should not be disadvantaged.

A well-functioning justice system should provide timely and affordable justice. This means delivering fair and equitable outcomes as efficiently as possible and resolving disputes early, expeditiously and at the most appropriate level. A justice system which effectively excludes a sizable portion of society from adequate redress risks considerable economic and social costs.

Scope of the Inquiry

The Commission is requested to examine the current costs of accessing justice services and securing legal representation, and the impact of these costs on access to, and quality of justice. It will make recommendations on the best way to improve access to the justice system and equity of representation including, but not limited to, the funding of legal assistance services.

In particular, the Commission should have regard to:

1. an assessment of the real costs of legal representation and trends over time
2. an assessment of the level of demand for legal services, including analysis of:
   1. the number of persons who cannot afford to secure legal services but who do not qualify for legal assistance services, and
   2. the number of pro bono hours provided by legal professionals
3. the factors that contribute to the cost of legal representation in Australia, including analysis of:
   1. the supply of law graduates and barriers to entering the legal services market
   2. information asymmetry
   3. other issues of market failure
   4. the structure of the legal profession in State and Territory jurisdictions
   5. legal professional rules and practices
   6. court practices and procedures
   7. models of billing practices
   8. the application of taxation laws to legal services expenditure, and
   9. other features of the legal services market which drive costs
4. whether the costs charged for accessing justice services and for legal representation are generally proportionate to the issues in dispute
5. the impact of the costs of accessing justice services, and securing legal representation, on the effectiveness of these services, including analysis of:
   1. the ability of disadvantaged parties, including persons for whom English is a second language, to effectively self-represent, and
   2. the extent to which considerable resource disparity impacts on the effectiveness of the adversarial system and court processes
6. the economic and social impact of the costs of accessing justice services, and securing legal representation
7. the impact of the structures and processes of legal institutions on the costs of accessing and utilising these institutions, including analysis of discovery and case management processes
8. alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these, including analysis of the extent to which the following could contribute to addressing cost pressures:
   1. early intervention measures
   2. models of alternative dispute resolution
   3. litigation funding
   4. different models of legal aid assistance
   5. specialist courts or alternative processes, such as community conferencing
   6. use of technology, and
   7. expedited procedures
9. reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation and promoting equality in the justice system, and
10. data collection across the justice system that would enable better measurement and evaluation of cost drivers and the effectiveness of measures to contain these.

The Commission will report within fifteen months of receipt of this reference and will consult publicly for the purpose of this inquiry. The Commission is to provide both a draft and final report, and the reports will be published.