Court Access is a Fundamental Civil Right: Keeping it in Reach of all Requires New Thinking
It has been said that courts are a civilised society's substitute for vengeance, so it's worrying that public debate about justice and access to the court system has faded away. Fifteen years ago, chief justices and senior political figures were talking about a crisis of access to civil courts. Judges were saying they could not personally afford to litigate in their own courts. Going back 35 years, Australia and similar countries were debating legal aid, community legal centres, tribunals and alternative forms of dispute resolution.
Have we stopped talking about it because all the problems have been solved, or have we stopped talking about it because the problems seem insoluble and we have given up?
At a seminar last month on the quality of justice, I was reflecting on the 15 years that have passed since I wrote a controversial report for the Australian Institute for Judicial Administration called Courts and the Public. That report was critical of the quality of service offered by Australian courts to their many users, whether they were litigants, jurors, witnesses or lawyers.
It is clear from a collection of essays published by the institute in 2013 on the impact of my report that the service culture of courts has improved, which is pleasing, but I was struck by how some of the old issues keep coming around and by the relative absence of new thinking about justice.
A lot is at stake here. People who feel there is a fair accessible way of solving disputes, making claims or resisting claims are more likely to go about things peacefully. And if society at large is confident there is an affordable, well-functioning court and tribunal system, then it instils confidence in our democracy and in our system of government: a sentiment that would be timely at the moment.
So, in an attempt to rekindle debate, here are two topics for people to react to.
Why could we not have a HECS-style system for funding civil matters? The Higher Education Contribution Scheme is based on the premise that university education confers private gain but is also a public good. Thus graduates should contribute roughly half the cost by making repayments when they reach average earnings. If they do not reach that level, or they go back below it, they do not repay.
With computerised tax records, it has become a well-functioning scheme, copied in various ways by numerous countries. HECS may have become controversial recently because the Government has chosen to put in issue the extent to which the taxpayer should support universities, but it is an elegant and flexible piece of public policy that could be a model for other areas of life.
I am committed to higher education, but does it rank above justice as a civil entitlement? Legal aid, especially for civil matters, is minimal at best in Australia. No-win no-fee schemes by lawyers can have perverse effects. Litigation insurance has never really taken off.
If, however, litigants were potentially liable for the full costs of their cases and the courts that decide them, but then the cost was explicitly shared with the taxpayer (as is the case with universities) through an income-contingent deferred loans scheme, we would bring clarity to the shared cost and introduce a form of means testing through the income threshold.
The second idea I would like to stir the pot with is that we have no real clue how often courts make mistakes. We have a system that few can afford to access, and when they get there they do not know the error rates. I don't just mean big mistakes, like a verdict, conviction or acquittal based on a clear error, but also mistakes along the way in rulings and preliminary decisions that shape the final proceeding.
Contrast this with, say, health, where data analytics enable us even to compare death rates between surgeons and determine which are dangerous days or times of year to go anywhere near an operating table. Universities now have key performance indicators coming out of their ears, and are compared in rankings nationally and internationally. Research is periodically peer evaluated for quality: we are going through a national exercise at the moment. Why is justice immune?
It is true that one might appeal, if one can pinpoint the error and one can afford it. Otherwise it is left to the integrity of procedure and the professionalism of lawyers and judges in the first place, which is undoubted. But surgeons, academics and researchers are professional too, and follow protocols.
A salutary study out of the United States of capital murder cases between 1973 and 2004 concluded that at least 4 per cent of convictions were based on error at the trial stage. This was the percentage where appeal courts had overturned a conviction, having identified a clear error. Such a finding may seem way off beam for Australia, which does not have capital punishment, and irrelevant to other kinds of criminal cases and civil cases, but think about it.
Courts at the trial stage must have been trying hard, because of the consequences. The defendant almost certainly had a lawyer. The appeal court will have thrown everything at the appeal to scour it for error. And yet 4 per cent still show up. If in other kinds of cases a defendant has no lawyer, has no idea of appealing and possibly has no idea of what has really gone on, what percentage of errors would show up in a sample that were diligently appealed and combed over?
Perhaps the central message is that we don't ask the question and currently have no mechanism for finding out.
If we are to rebuild a sense of a functioning civil society, where courts are a substitute for vengeance, we need to start talking about these things again.
This article originally appeared in The Canberra Time, and can be found here: http://www.canberratimes.com.au/comment/-gi9fy5.html