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Millions of Australians frozen out of the justice system

Opinion

An estimated seven million Australians struggle to access legal advice, simply because of where they live, writes Morry Bailes.

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Regional, remote and rural (RRR) Australia is home to a broad cross-section of people, from Aboriginal and Torres Strait Islander people in remote communities, to farmers and primary producers, to the other diverse and significant regional populations across the nation. They represent a third of our population, but barely any lawyers live among them.

It is indicative of a broader problem – access to justice.

The federal Productivity Commission published a sobering report in 2016 that highlighted problems experienced by litigants in the the civil justice system, which includes the Family Law sector dealing with children’s issues and property settlements following separation. The commission previously found there was significant unmet legal need, including for Australia’s “missing middle” – those who cannot qualify for legal aid yet may not be able to afford legal services. These are the forgotten people (and not just in relation to the question of unmet legal need). And this is just in relation to civil law.

There is no doubt we need to do more for people with legal problems who can never get to a lawyer or a court. The Law Council of Australia’s Justice Project has looked closely at the plight of Australia’s RRR populations. We ought to be concerned by its findings:

1. While seven million Australians that live in RRR areas, only 10.5% of lawyers practise in these locations. Little wonder it is hard to see a lawyer or even recognise that you may have a legal problem and a remedy.

There is nothing to help assuage this. With the exception of Tasmania, not a single Commonwealth or state government initiative exists to attract lawyers to the country or, if they are already there, to retain them. That is in stark contrast to health, where many initiatives exist, including tax incentives and grants.

2. Levels of socio-economic disadvantage, generally speaking, increase with remoteness, making RRR populations often less able to afford legal services. With that comes low literacy and education rates and thus less understanding of the legal process and of legal rights.

Confronting a money issue, for example, may be seen only as a financial problem, when in fact it is both financial and legal, and good legal advice or a corporate re-structure, of say small business, may reduce or eliminate the difficulty.

3. Regional courts, and for that matter, courts on circuit, are reducing in number or closing. In the state of Victoria alone 65 courts have closed in 30 years to 2010. Circuit courts are superior courts that visit the regions, and budgetary restraints have put them under pressure.

Why is that significant?

Let’s take an example in our state. If there is no circuit court in Port Augusta, for example, it means a trial must be conducted in Adelaide. The accused can obviously appear in Adelaide or be transported from custody in Port Augusta to Adelaide, but every witness must also travel. In the case of Aboriginal witnesses, that may be the very thing that sees a complaint withdrawn, or for witnesses to be unwilling to attend court.

Meanwhile, the jury is comprised of jurors who are not locals, which may mean that, in regional locations, justice is not being seen to be done.

4. RRR populations have special needs. Farmers need advice about environmental law, estate planning and succession of business. Aboriginal and Torres Strait Islander people have legal needs ranging from advice on Native Title, to business and representation before courts. In some regions there are fishing industries which require particular advice.

It is plainly more advantageous for local lawyers to build up this specialist knowledge, but with such an under-representation of lawyers in the bush relative to RRR populations there are great challenges. Life in the regions can be wonderful, but that alone is not enough to attract and retain lawyers even if they are born and raised there.

RRR Australians have become sadly accustomed to health services such as hospitals closing. They have seen banks shut up shop and essential government services withdrawn. The pattern across Australia is by no means uniform. Eastern coastal areas are doing relatively well by comparison. But across the wheat and sheep belt, and in remote locations, many people are doing it tough.

It of significant concern that when people need the law it is not there to deliver. Aggravating matters can be a city-centric approach to law making, such as what I touched on recently; mandatory license disqualification for remote and rural people, harming them disproportionately.

We should not ignore the bush. Much of our GDP comes from farming, fishing and primary production, and there are many other vulnerable people in RRR populations, with instances of domestic violence, for instance, being higher than elsewhere, owing in part to drug and alcohol abuse.

Governments have a responsibility to maintain courts and services, and to create incentives for lawyers to go bush. With a third of Australia not in a major city, us city folk need to pay more attention to the legal needs of our country cousins.

While the diversity of our regions makes it difficult to generalise, there are a number of ideas which have been floated over the years which deserve further exploration.

First, get lawyers into the regions through tax breaks and grants. It has worked in other service industries, why not law?

Second, get clients to their lawyers. Believe it or not, transport itself – getting to see lawyers and to courts – is a big problem. In WA there is no private law firm north of Geraldton. Get out a map: it is just incredible.

Third, technology can obviously help, but it should not be the private legal profession that carries this cost, nor should it be the excuse for not sitting courts.

Fourth, alternate dispute resolution, often promoted in the city, is less available in the regions. This needs to be remedied.

Fifth, joined-up services, such as health and legal or finance and legal, acting together can be far more effective than remaining separate. A legal problem may often first be made known to a health provider rather than a lawyer.

Finally, funding of legal aid and community legal centres in the regions is vital to justice outcomes. I have written before about the consistent failure to adequately resource this sector. Quite novel ways can exist to achieve this, such as part funding a lawyer’s salary in a private firm by way of government grant, on the basis that the firm will accept and perform a certain amount of legal aid work.

RRR people should not be left high and dry when it comes to making sure they are catered for in the justice system. With seven million Australians in this category doing nothing is not an option, particularly when there are ideas on the table.

Why are we bothering to educate the number of legal graduates in this country when we cannot get enough of them to go bush?

Governments and the legal sector can work together to address this increasingly chronic problem but we, as lawyers, must be listened to and governments must be prepared to back us in.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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