Sharpening the lens of access to justice

Being back in Melbourne since meeting with access to justice folk recently in British Columbia, to talk all things about our Public Understanding of Law Survey (PULS), and presenting on why Legal Need and Capability Really Matters at the 2024 International Access to Justice Forum (International Forum) in Toronto, there are several reflections.

Access to justice challenges around the world remain similar. New thinking and approaches are also similar. Even where key institutional arrangements differ widely. While Victoria is well placed, in many respects it sits at the vanguard. It’s worth asking why. And worth valuing.

Given similar challenges, there is much to learn from discourse and international perspectives. One immediate takeaway is that much of the new approaches variously occurring around the world are already occurring in what our public legal assistance services do, especially our community legal centres and services for First Nations peoples.

While the announcement of an additional $800 million funding over five years under the new National Access to Justice Partnership falls short of what many had hoped, we can all hope that it helps to sustain public legal help, if not help it thrive.

Taking some of the main themes from the International Forum, community legal education, access to justice programs and interventions continue to develop. There is coalescence around ‘community justice worker’ initiatives. This is interesting because it recognises that access to justice does not always depend on access to lawyers and courts, and that paths to justice often begin with community organisations and efforts. We know and see this in how more integrated, ‘joined up’, legal and community services continue to expand.

Justice digitisation, lech tech, and Artificial Intelligence, long predicted to transform access to justice, and depending on your view, overcome the failure of the traditional legal services market, where big law competes to cater to big business, and much legal need in the community goes unmet. Such developments continue to gain in pace and promise. But with that pace and promise, it’s also vital to sharpen the access to justice lens, to figure out who is gaining, who is losing, who is missing, and what we need to do to see this.

Person-centred approaches to justice are very familiar to Australia and Victoria, even if some of the language and elements are new. We have seen the rise of more person-centred approaches. Findings from our PULS, however, reiterate and demonstrate the need to go further, to better match help to need.

Legal needs surveys and other empirical approaches are building interest in justice epidemiology, especially given the growing insight that justiciable problems and unmet legal need are health problems, where ill-health can give rise to legal needs, and legal needs to ill-health. All begging the question: why haven't we developed professions such as justice epidemiologists, justice economists, and justice system architects?

The International Forum also illustrated how questions of court and tribunal design, the nexus between access to justice and income, youth and family justice, and gender-based violence abound.

In some places an ‘access to justice crisis’ has become ever-present, especially in civil justice where it has been further squeezed out by rising criminal justice concerns and moments of historical reckoning. This appears to be taking place against the backdrop of ever creeping decline in trust and confidence in public institutions broadly, and justice institutions in particular.

This may or may not be empirically true. It almost certainly varies by jurisdiction, even if some of the social media is similar.

But it’s important to be wary, particularly if the rule of law is to play its idealised role in the social contract, underpinning democracy. Some in North America question whether the ‘democracy experiment’ is failing or has already failed. The Jenga tower teetering at collapse or collapsing. While that quickly falls to the philosophical and ideological, we have evidence on social cohesion, trust, and confidence in Australian institutions.

The 2024 Mapping Social Cohesion study, which includes a nationally representative study of Australians’ attitudes and behaviours across 100 indicators of social cohesion, reports that social cohesion has been stable over the last year but remains below historical average. The study further reveals that sense of belonging, and sense of social justice and fairness further declined, and sits at their lowest levels since the study started in 2007.

Our PULS provides evidence on how attitudes to law and trust in lawyers is distributed across the Victorian community (see PULS Vol 2) and how they and other dimensions of legal capability affect nearly every aspect of justiciable problem experience, behaviour and resolution. Often powerfully (see PULS volume 3).

While law and justice institutions cannot, alone, be expected to ‘fix’ social cohesion, social justice, sense of fairness, or democracy, access to justice sits squarely at the intersection of where it can.

This is one of the reasons legal need and capability really matters. The PULS clearly evidences inequality, not just in how legal need and access to justice is socially patterned, but the stark way in which legal capability affects paths to and through justice to fair resolution, to meeting justice needs. Those with higher legal capability (knowledge, skills, attributes, resources) have greater recourse to law, proactively use it, and take more away from it. Whereas those with lower capability are more likely to be on the receiving end of law, suffer poorer outcomes and are more likely to struggle to get what they need. If we didn’t already know, we now have even stronger evidence that our justice system works better for some than others.

Another notable development for me at the International Forum was renewed interest in the crossover between criminal and civil aspects of legal need, and how civil issues contribute to criminal ones, and criminal to civil. During discussion about Legal Needs Surveys, I was asked to speak to that issue based on a paper from more than decade ago. A reminder that when it comes to access to justice and legal needs, there is now a lifetime of modern research to draw on, yet more is needed to close knowledge gaps and grow the evidence base.  

The International Forum had strong Australian participation, with colleagues from other states and those now working overseas, and impressive contributions from many colleagues closer to home in Victoria. Not to get hung up on quantifying, but Victorian’s presented in 11 out of 14 sessions. I was repeatedly asked by international colleagues about Victoria and why there seems to be so much impressive work going on? Is there something in the water? Pretty sure it’s not the Yarra, but we do have some other features many other places do not.

In particular, a vibrant, engaged broader legal sector that often comes together to share and collaborate, one that has a thirst for knowledge and shared interest in advancing access to justice. This makes heading up research, in a body charged with improving the access to justice of Victorians, a privilege. I look forward to doing just that, with my colleagues at Victoria Law Foundation, and those throughout the Victorian legal and justice sectors.