RR Phantom
Location : Wasted Space
Job/hobbies : Cayman Islands Actuary
 |  Subject: OZschwitz law reform: Another statist fantasy  Fri Sep 25, 2009 3:44 am | |
| In one corner of my office is a steep pile of yellowing tomes. It's called the Access to Justice corner and if anyone disturbs it the whole tottering edifice cascades to the floor. As of yesterday it's grown again with the addition of the Commonwealth Attorney-General's taskforce report on a ''strategic framework for access to justice''.
That volume now sits on top of other mighty works, such as a Senate standing committee report on the cost of justice (1993); the study of the legal profession by the Trade Practices Commission (1994); the report of the Access to Justice Advisory Committee (1994); the Australian Law Reform Commission's Managing Justice report from January 2000, with associated discussion and issues papers; the Victorian Law Reform Commission's Civil Justice Review (2008), etc, etc.
All of these reports cover much the same territory: costs of litigation, timeliness of resolving disputes, smartening up process and procedure.
The recommendations invariably have a familiar tone: more legal aid, sometimes more judges, streamlining litigation with more non-court dispute resolution and shifting costs on to unworthy litigants and, increasingly, their lawyers. Carrots and sticks.
Yet, it's funny how the expense of litigation keeps rising, the length of trials is steadily on the up and up, access to ''justice'' is further away than ever and the gobbledegook increases.
Big, fat, juicy justice reports also tend to borrow from each other. So we see that the 2008 Victorian Law Reform Commission Civil Justice Review drew inspiration from Lord Woolf's review of access to justice in England (1996).
The Victorian report referred to the Woolf ''reforms'' 145 times. But what of the Woolf reforms? The Times's legal affairs section reported in May 2007: ''As most practitioners agree, the Woolf reforms have done little to improve things and in some cases made the costs burden worse.''
Nonetheless, the Victorian Attorney-General, Rob Hulls, was enthusiastic, saying the commission's effort ''will contribute to an ongoing process of meaningful and lasting reform''.
When the Access to Justice report lobbed in 1994 the prime minister, Paul Keating, was primed: ''If we can create a justice system which is simpler, cheaper and more accessible, we will extend our democracy and strengthen belief in it.''
As a curtain-raiser to the release of the latest report, the Attorney-General, Robert McClelland, was out spruiking: ''Lawyers had done themselves a disservice. They have created uncertainty and lack of clarity that is spewed out to clients and has been a disincentive for them to use lawyers.''
The former lawyer and academic Brett Dawson observed that lawyers had not done themselves a disservice at all. They love complexity, the greater the lack of clarity, the more befuddled the client, the greater the need for lawyers, the bigger the business, the more the fees, etc. He pointed to the way lawyers' ethical rules function as ''make-work'' schemes that actually sanctify poor behaviour. These do not seem to be addressed in the latest ''strategic framework''.
For instance, the NSW Law Society's statement of ethics (revamped in May) authorise lawyers to conduct long ''not guilty'' trials for clients who have already (privately) admitted their guilt. Also, if a client confesses to a lawyer that he lied in court, as a matter of ''ethics'' the lawyer should withdraw but ''must not otherwise inform the court of the lie or falsification''.
We should never forget Charles Dickens's observation: ''The one great principle of the English law is to make business for itself.''
Why we're in this frightful, seemingly insoluble litigation vortex is largely because the judges, and successive governments, have allowed the lawyers to capture control of the courts and the cases. The judges sit there allowing opening addresses to go for 100 days out of a 404-day trial (the Bell case, Western Australia) and lesser cases to trundle along with trolley-loads of documents at a sloth's pace.
The role of the judge presiding in a state-funded institution like a court has to be fundamentally rethought. So, too, the role of lawyers.
Lawyers have appropriated functions and called it ''legal work'' when most of it can be done by less qualified and cheaper paralegals. However, lawyers set the rates at which paralegals are billed out, not the free market.
Equating access to justice with access to lawyers will just get us more of the same.
LNK |
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