With great respect, this is an excellent article by Justice Steven Rares in response to the 2014 Productivity Commission’s Report on Access to Justice Arrangements. His Honour’s paper concludes:
87. In December 2014, the JCA welcomed the Commission’s recommendations to improve legal aid services, including by increasing funding for legal assistance to adequate levels. The almost inexorable reductions of legal aid funding by governments over recent years has added greatly to the burden on persons of relatively modest or little means in their conduct of minor or lesser criminal proceedings and their conduct of all classes of civil proceedings. This, in turn, has significantly increased the numbers of litigants in person who, understandably because they are not lawyers, can take up large amounts of court and judicial resources and time, as well as those of their litigious opponents.
88. The funding of legal aid raises important policy and financial issues for governments in difficult economic times. However, the Commission’s economic analysis of the justification for increased government funding of legal aid is an area in which it has expertise and its recommendations ought be given weight.
Pro Bono services
89. The JCA also broadly agrees with the Commission’s recommendations for improving support for the legal profession’s ability to give pro bono legal assistance to persons not able to afford a lawyer. Such assistance also facilitates the courts being able to hear and decide cases more efficiently because a party’s evidence and arguments will be presented by a lawyer who can focus on the real issues.
90. The Commission’s report, like the curate’s egg, is good in parts. However, in this paper I have concentrated on what the JCA regards as the Commission’s serious misconception that persons can and should be made to pay significant sums to exercise their common law right of access to a court of justice when they have a civil controversy involving a government or another person. That misconception cannot be left uncorrected.
91. The courts are and must be open to all so that they can perform their constitutional function, expressed in the judicial oath, of doing right to all manner of people, without fear or favour, affection or ill-will. Access to justice must be a meaningful reflection of equality of all persons before the law. No member of our community should be required to pay substantial, arbitrarily set fees to governments for that right.