In the current issue of LawTalk, New Zealand Law Society President-Elect Kathryn Beck told readers that “We need to have a look at our justice system – and when I say we, I don’t mean just the law profession, I mean Parliament and other stakeholders.” She added –
We are all well aware of the economic barriers to accessing justice in both the criminal and family jurisdictions with the reduction in legal aid. And there are significant social and economic issues with accessing justice for Māori, Pacific island, Asian and other ethnic groups in New Zealand, as well as for those who are vulnerable due to health, disability or other reasons.
Addressing issues with access to justice is critical not only from a social responsibility perspective but also, as lawyers, from a professional perspective.
It’s been a year since Justice Helen Winkelmann delivered her Ethel Benjamin Address, titled Access to Justice – Who Needs Lawyers? As I wrote on the Greens’ blog earlier this year, Justice Winkelmann extensively unpacked how the ‘justice gap’ has grown as a result of various reforms that have transformed our justice system into a ‘user pays’ system. Her concerns were widely echoed by the practitioners I met at the 2015 Annual Community Law Hui in Christchurch last Friday, and the current issue of LawTalk dedicates a whopping 10 pages to those same concerns. The concerns being repeated and repeated include:
- The steady rise of self-represented litigants in our courts and the issues of efficiency, independence and propriety that arise as a result;
- The “significant increase” in Court fees over the last twenty years;
- The failure of our legal aid system to account for the realities of paying for legal representation and working as a legal representative;
- The impact of the recent changes to our Family Court system on parties, their children and the legal system; and
- The cost of legal aid rules for victims of domestic violence applying for protection orders.
Admirably, the legal profession has been stepping up to the plate to address these issues. Law clinics across the country and internet-based advice services like LawSpot have been reaching out to those looking to self-represent, and the profession has been trying to make it easier to access lawyers by making changes to the ‘intervention rule’ that prevented barristers from acting directly for a litigant, by exploring the possibility of ‘limited retainers’, and by simply taking on more pro bono work.
These problems won’t get magically solved because lawyers are working for free, though. Nor should lawyers be expected to work for free in the first place. As Justice Venning says in LawTalk, “such attempts should not have to be progressively relied on in order to plug the gap that exists in the provision of legal aid, which is a social good.” Justice Venning, Justice Winkelmann, Ms Beck: they’re all correct that the solutions to our widening justice gap lie in the political sphere as much as in the legal sphere.
We’ve tried to tell the Government this; we’ve tried to get them to understand the problems creating our justice gap and act on them, but they’ve dismissed our concerns and the profession’s concerns by responding, glibly, that no problem exists “because the courts are open to those who wish to avail themselves of them.”
The research available disagrees with them; the judiciary disagrees with them; the profession disagrees with them. We’re going to keep pushing until they realise this and take action, because that action isn’t just desirable: it’s necessary.