The Australian Court System is an adversarial system. A central principle of the rule of law is that all parties involved in legal procedures receive procedural fairness and access to justice.
The Federal Attorney General Mark Dreyfus recently stated in a speech to The John Curtin Institute of Public Policy that:
“providing access to justice, in the broadest sense, to all members of our society, is essential to strengthening Australia as an egalitarian, participatory democracy under the rule of law”
There are many barriers which can limit access to justice. RoLIA has commented recently on the increase in Federal court fees and has given evidence to a Senate Committee on the key issues involved in the impact of the increases.
There has also been a considerable amount of debate recently about Legal Aid funding and discussion about self-represented litigants (SRLs) in the Family Court. Self-represented litigants are defined as people who are active in court or tribunal proceedings on their own behalf.
Deputy Chief Justice Faulks of the Family Court of Australia highlights the rise in SRLs, with SRLs involved in 27% of cases in the Family Court. The reasons for this are complex, but a lack of affordable legal representation, and limitations on the availability of Legal Aid are key factors in people being self-represented in court.
The adversarial system depends on parties involved in legal action being able to effectively present their case to allow judges to retain their impartiality and ensure procedural fairness. The complexity of the legal system makes it very difficult for people who are not legally trained to represent themselves. The High Court said in Dietrich v. The Queen 1992 (Cth) that if a person who is accused of a serious crime is not legally represented that it is likely to amount to a miscarriage of justice.
Judges have created guidelines to deal with SRLs in some jurisdictions, but if the amount of SRLs continues to increase then governments will need to address the issue.
There have been indications that government will conduct a review of the system of Legal Aid in Australia toward the end of 2013. Ideally this review will examine what can be done to improve the system of Legal Aid and more broadly examine the issues surrounding barriers of cost that may limit procedural fairness and access to justice in an adversarial legal system.