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Australian Law Reform Commission - Reform Journal |
This article appeared on pages 21 – 25 of the original journal.
Accessing the System
What problems do unrepresented litigants face when negotiating the court and tribunal systems? How do community legal centres make a difference?
Anna Cody* draws on her experience at Sydney’s Kingsford Legal Centre - as well as interviews with professionals from other community legal services - to give this perspective.
Community legal centres are central players in the provision of legal aid services. Legal centres provide free legal advice to anyone in the community and representation in some areas of the law. They are also active in law reform, writing submissions and reports to improve the law as well as running community education programs on legal issues. Community legal centres, as the name suggests, are community based, with management committees made up of local community members.
In beginning to discuss issues surrounding litigants who are unrepresented, I should refer to the relevant international covenants: the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which Australia has signed. Article 7 of the Declaration states that “all are equal before the law and are entitled without any discrimination to equal protection of the law”. Article 14 of the Covenant provides that “all persons shall be equal before the courts and tribunals”. In many situations, access to justice can mean access to representation. Frequently, equal treatment means ensuring representation in courts. In the context of federal government cuts of approximately $231 million over six years to legal aid funding, access to representation is likely to decrease. There is an overlap in any discussion of unrepresented litigants with access to justice issues.
Expectations of law
Many people become aware of law in their lives when they have been ‘wronged’ in some way or have done some ‘wrong’. When a person feels a sense of being wronged their expectation of the legal system is that this wrong can be righted and that ‘justice will be done’.
It is often the first obligation of legal centres to explain to litigants the role of the legal system. It is based in people proving each element of a case. This may sometimes correspond with justice: other times it does not. The unrealistic expectations of litigants are a major issue, once matters are underway. Community members do not see their lives or their problems compartmentalised into legal elements to be proved systematically.
If a litigant is unrepresented they often focus on the facts of their case and their sense of grievance rather than proving each element of their case. Litigants are unused to the process of examination and cross-examination of witnesses. They frequently expect judges, magistrates and members of tribunals to be more active in seeking the ‘truth’. It is often a shock to them that the system is adversarial. The structure of cases in which each party presents their case and tries to destroy the other party’s case can be foreign to many.
Particular disadvantage
Most people are unfamiliar with the legal system until they are forced to use it. It is an unknown and strange set of rules. The strangeness of the rules and norms is often emphasised if the person is a woman, has a disability, is Aboriginal, from a non-English speaking background or is not heterosexual. The legal system is only beginning to be aware of cultural difference and the fact that the dominant legal system has been shaped by white middle-aged men without disabilities.
People from non-English speaking backgrounds, for example, frequently expect tribunals to be more independently inquiring. Cultural ways of relating can influence members’ and judges’ views of the credibility of parties to the case, which may then ultimately affect the way the case is decided. Expression of emotions can vary across cultures. Displays of emotion can be vital in proving an element of the case, but can be wrongly interpreted. Stereotypes of various groups in the community persist and can influence the way in which judges, tribunal members and magistrates view a particular case or litigant. Having representation, someone who is trained in cross-cultural awareness and aware of disability issues, can go some way to lessen these negative effects. The representative will be aware of potential problems and can alert members and judges to them when they occur.
“Magistrates, judges and tribunal members need to be trained so that they can be more understanding of the issues unrepresented Aboriginal women, for example, face. They need to learn to be patient with people and understand when Aboriginal women don’t fill in the right form. They need to be aware of the huge barriers that they face in even getting to court, let alone getting to hearing level.”
“Clients from non-English speaking backgrounds face additional barriers in accessing tribunals. Interpreters vary greatly in the quality of their work ... (and) use of interpreters makes cases slower. Another disadvantage is where clients have lower education levels with corresponding lower literacy skills. If things are written in a complicated way, clients need to be able to understand them, which is unlikely if they have low literacy skills.
“Health conditions, invisible disabilities and disabilities such as psychiatric disabilities which clients do not believe they have can also affect clients adversely. The advantage of having a multi-skilled SSAT (Social Security Appeals Tribunal) with social workers and/or psychologists present means that these may be identified in a hearing process.”
Repeat players
The law is more difficult to use where a litigant who is unrepresented comes up against repeat players. This can happen in immigration law (where the other party is often the Department of Immigration), in tenancy law (the Department of Housing or real estate agents), in social security law (the Department of Social Security) or in unfair dismissal cases (where the other party is an employer organisation). The repeat players know the system and the rules that apply. They may have established relationships with the tribunal members, which can appear to the unrepresented litigant to exclude and disadvantage them. Repeat players are used to using the law to argue their side of the issue. An unrepresented litigant will usually be new to the system and possibly not know the law or know how to use it to their best advantage.
“At the AAT (Administrative Appeals Tribunal), the Social Security departmental advocate is a repeat player whereas a client goes once in a lifetime. They need representation because the law is getting more and more complicated ... the departmental advocates know the tricks and customs of the jurisdiction and are familiar with the personnel.
“The message of familiarity between the tribunal and the department ... looks clubby and looks like clients are excluded. Of course, the tribunal acts in a professional manner ... but this is not the point. It is how it looks to the client who may feel excluded.”
“The Residential Tenancies Tribunal doesn’t encourage representation. This is a major problem because of the power imbalance in the players and the lack of knowledge of tenants of the law, the system and their rights. Because real estate agents are repeat players they have an immediate advantage. Real estate agents attend courses to keep up to date with the law and the Real Estate Institute distributes information about recent cases.”
Other pressures
As the number of cases increases, the pressure on magistrates, judges and tribunal members to get through a ‘list day’ or to decide quickly and efficiently can disadvantage unrepresented litigants who require explanation and guidance through their case. Having representation can expedite the process as representatives are familiar with the legal process.
Another barrier to accessing the legal system is a lack of understanding about legal process. Legal documents are dense and unreadable to those who have low literacy levels and/or may speak Aboriginal English or English as a second language. Many people just throw away court documents as they do not understand them and are intimidated by them. Having access to representation can help people to understand legal documents and explain the process.
The law itself is complicated and, in some areas such as social security law, is increasing in complexity. Many clients cannot understand the law and focus on the facts - and not always the relevant facts in presenting their case.
“If the client needs witnesses or affidavits ... it may be difficult to get people involved in a dispute between two Aboriginal people. Witnesses may be fearful of having to go to court because the police will know where you are. Because the witnesses may not have turned up to court themselves, there may be warrants for their arrest for insubstantial matters which ... deter them from attending court to give evidence.
“Representation would definitely help in preparing documents, in advocating on a person’s behalf, in chasing witnesses, in explaining the process and dispelling the fears of clients and witnesses.
“Sitting down and explaining to clients or witnesses that ‘You’re not in trouble’ and explaining the role of the witness, being a contact person to explain the legal language to a client can be very helpful.”
Court structure
The court environment itself is intimidating. Court staff are often unsympathetic, do not react in culturally appropriate ways or have no understanding of issues relating to disability. Dealing with people who have no or little understanding of the process requires patience and excellent communication skills. The training of staff in these skills is essential.
“... although it (the Residential Tenancies Tribunal) is supposed to be an informal and friendly forum, it is very legalistic and formal. This is terrifying for clients and particularly difficult for clients from non-English speaking backgrounds and with intellectual or psychiatric disabilities.
“It is hard to get tenants to turn up for their hearings, and ensuring that they know about the law is difficult. Ninety per cent of cases before the tribunal are for termination of leases. These are initiated by landlord and real estate agents. Tenants don’t use the tribunal themselves. This needs to be addressed through education.”
“The court space itself needs to be adapted for Aboriginal people to be more culturally appropriate. Showing the Aboriginal flag can give a message of accessibility to clients. Employing Aboriginal people and people from a variety of backgrounds within the court system is vital. Courts must provide training for staff in cross-cultural issues. There are, of course, some court staff who are well aware of issues surrounding Aboriginal users of the court, but many who aren’t. Having Aboriginal Court Liaison Officers can help substantially ... Their role is to promote the services of the local court and demystify the legal process. There is only a handful of courts which have these.”
“Many Aboriginal people living in regional and rural Australia don’t have access to a means of transport. It is important that courts think about providing services in alternative ways such as travelling out to Aboriginal communities to help with applications and forms.”
Where the respondent is not present, for example, in the Social Security Appeals Tribunal, then the tribunal can function fairly for unrepresented people. They do not have to present their case in a formal adversarial process and the tribunal is constituted so that it has available a variety of skills such as community welfare, medical and legal. It can then truly be a tribunal of inquiry.
Additionally, there are some areas of law where representation is not necessary such as in uncontested divorces.
“The Social Security Appeals Tribunal has three members who are multidisciplinary so that the tribunal has a variety of skills and abilities, including legal skills. The Department of Social Security (is) not present and this prevents the proceedings from being adversarial. The SSAT is a first level review open to everyone and there is an unfettered review to the AAT. The department doesn’t appear and so unrepresented litigants are not generally disadvantaged except in situations where their problems are so complex that they cannot explain or cannot identify the relevant issues. Qualifying this, every forum, even the best, benefits from some scrutiny by regular practitioners to prevent processes from going off the rail. Participation by experienced practitioners gives the tribunal fresh ideas and processes. Under the current review a new Administrative Review Tribunal will be introduced which will do away with the first level review of the SSAT. If such a tribunal is established then it would be imperative that clients always be represented.”
Unrealistic expectations of law, a lack of understanding of the legal process, the court system and legal documents, and the lack of openness in the courts and their structure to unrepresented litigants are some of the factors which make access to legal representation vital.
The availability of free legal services is crucial so that people can use the legal system to assert their rights. For those who are women, for people from a non English speaking background, for Aborigines, people who are not heterosexual, or those who have a disability, there are additional barriers to the legal system and so the importance of legal representation is heightened. There are some disadvantages which can not be overcome without representation, such as the disadvantage experienced when dealing with repeat players. These factors highlight the importance of the availability of free legal services which provide advice and representation.
These are just some of the issues which arise when we discuss unrepresented litigants. Clearly access to justice can mean access to representation.
* Anna Cody is a senior solicitor at the Kingsford Legal Centre in Sydney.
Extra comments contained in this article were supplied to the author during interviews with Racheal Martin (Solicitor) of the Aboriginal Women’s Legal Resource Centre, Sandra Koller (Solicitor) of the Welfare Rights Centre and Beth Jewell (Community Worker) of Redfern Legal Centre.
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URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/1998/22.html