Access to Justice—are some more equal than others?
So often we hear someone say that “justice is for the rich”. This statement is not exactly accurate. Perhaps for more accuracy we could say that “access to justice is for the rich”. But before we go any further what is it we mean when we talk about justice?
Justice is often described as fairness in the way in which people are dealt with. When we talk about justice it is usually in relation to a legal matter and more often than not what comes to mind first is a legal matter in the criminal courts. But justice is not just about the criminal system. If we believe that it is fairness in the way in which people are dealt with then it encompasses anything and perhaps everything to do with the law. So it includes civil matters as well as criminal matters. It also implies that everyone is entitled to be dealt with in a fair manner within the law.
However, how do some people actually access the law and thereby enable access to justice? It would appear then that the crux of justice is in the access to justice.
The NSW Law and Justice Foundation, through their Access to Justice and Legal Needs Program have undertaken massive research into the legal needs and access to justice of people within New South Wales, with particular reference to socially and economically disadvantaged people. In 2004 the Foundation released their Report on “The Legal Needs of Older People in NSW”. This Report was followed in 2005 with “No home, no justice: the legal needs of homeless people” and in 2006 their Report “On the edge of justice: the legal needs of people with a mental illness in NSW”. Following on from the 2006 Report the Foundation examined the “Taking justice into custody: the legal needs of prisoners” with the release of the Report in 2008.
In the earlier 2004 Report relating to older people some of the issues associated with access to justice included barriers associated with the use of web based legal services, a lack of awareness of where to access legal information and assistance, the high cost of legal services and potential conflicts of interest if it is a family member who has arranged the appointment with a legal practitioner (the practitioner may also act for the other member of the family).
However, how do some people actually access the law and thereby enable access to justice? It would appear then that the crux of justice is in the access to justice.
Another issue relevant to accessing government funded legal services is that many older people own their own home and may fall outside the restrictive eligibility test. Furthermore there is a paucity of legal services, either government funded or private, that specialise in the legal issues facing older people.
The Report on Homelessness (2005) found that many of the barriers confronting homeless people when attempting to access justice related to their overwhelming sense of despair. In situations such as this it was found that the essential needs such as food and shelter took precedence. The situation can also be compounded by poor literacy levels and education and simply not knowing what legal options are available to them.
The 2006 Report on mental illness found that many of the issues confronting those with mental illness and their ability to access legal assistance, from an individual perspective, included a lack of awareness of their legal rights, communication problems and being overwhelmed or too frightened to seek assistance. However, from a systemic perspective it was found amongst other issues that there was limited availability of affordable legal services, which was even more evident in regional, rural and remote areas, there were also time constraints placed on the providers of some legal services (as a result of stretched and limited resources) and in some cases the physical environment of a legal service acted as a barrier to those seeking the service.
Whilst there may be some in the community who may be perplexed about a Report on those who are incarcerated it must be noted that prisoners also have legal issues unrelated to the reason that they have received a custodial sentence. These issues may relate inter alia to family law, employment and housing. It should also be noted that within the prison system there is a culture that may make it more difficult for some prisoners to access information about their legal issues.
From the Reports it can be seen that amongst the recurring themes there is an inability for many socially and financially disadvantaged people to recognise some of their issues as legal problems. Even if the problem is recognised as a legal one many people are unaware of how to access information and/or assistance. Poor literacy levels can further exacerbate the situation. Over-arching all of these issues are the very limited pro bono legal services available to assist socially and financially disadvantaged individuals within our society. So while the rich get richer, the poor have to make their own arrangements - with whatever limited resources available to them. So perhaps some are more equal than others.
The Reports referred to in this column can be readily accessed on the Law and Justice Foundation of NSW website http://www.lawfoundation.net.au/research/publications