Academic Writing: a language-based approach

Transcription

1 Law The following first year law essay was written in response to this question: The National Legal Aid Advisory Council defined access to justice as meaning: Access to the Australian legal and administrative justice systems, appropriate legal representation, independent legal advice and adequate information about the law and legal system. Is this definition consistent with your understanding of the concept of justice? What factors influence the ability of a legal system to deliver justice for the community? Note: the original essay included a reference list, which has been omitted here. You must include a reference list in the work you submit. Also, this essay is only one possible response to the above question. Student essay The concept of justice entails so many differing definitions that the traditional references to equity and fairness no longer cover its true meaning. Justice is often used to evaluate a law or a legal system, but various societal perspectives on justice will depend upon the circumstances surrounding the evaluation and the legal, social or political context in which it is represented. In all respects, justice implies a sense of equality for all, even if only before the law, and an acceptance of a standard that applies to the whole community. Therefore, what is justice for one cultural group should also be justice for another. This then means that areas such as race, religion, income, gender, sexual preferences and age discrimination are factors in any consideration of a response to the quote. Access to justice is a controversial issue that has arisen from barriers faced by people who have some legal right they want to enforce (Ellis et al, 1992, p. 319). These barriers include the increasing costs of legal services, the difficulty in obtaining legal aid, language obstacles, difficulties with discovering what the applicable rules of law are and how they apply to the specific case, and the problem of dealing with strange or powerful institutions, especially when other parties are familiar with legal processes. It is for these reasons, among others, that legal aid has been developed and also why various reports such as the Access to Justice Advisory Committee s (AJAC) Access to Justice - An Action Plan (1994) and the National Legal Aid Advisory Committee s (NLAAC) Legal Aid for the Australian Community (1990) have been published. Legal aid is only one means of overcoming these barriers to justice. This essay will use legal aid as a focus for its discussion on the delivery of justice; however, it is acknowledged that there are myriad factors at play in ensuring justice is achieved. comments orientation to topic teases out the concept of justice as it arises in quote 1. its role 2. its intuitive meaning 3. how this applies to the community factors which may hinder equality in access to justice (transition to next paragraph) THESIS Explanation of barriers to access to justice the focus of this essay 1

2 Clearly, justice does require appropriate legal representation and independent legal advice in a society which necessarily involves using the legal/administrative system and lawyers in some way (Bottomley et al, 1991, p.59). It is a system in which individuals inevitably face unequal standing against governments and large institutions who may possess far greater experience, resources and capabilities. These individuals need the influence of legal aid and the services legal aid provides to place them on an equal footing. Legal aid, by providing representation and individual legal advice, can mitigate some of the entrenched inequality in regards to access to justice. The service, which is 57% funded by the Commonwealth Government and includes the contribution of statutory interest on solicitors trust accounts, operates through State legal aid commissions and community legal aid centres. Financially, legal aid exists to provide people who have an insufficient income to afford legal advice and representation. Socially, it assists with individuals such as migrants and others who are fearful or intimidated by the legal system for cultural or complexity reasons. There are also those who may be geographically isolated from proper legal advice and representation (AJAC, 1994, p.xxxvii). More philosophically, some commentators have suggested legal aid and access to justice in general are important in maintaining society s liberalism, that is, the rights of the individual against the community and the state. explains what legal aid provides Argument argument and topic sentence for paragraph supporting information Legal aid services are required by many to effectively address the legal situation and therefore are an essential feature of justice. Australia has ratified the United Nations Covenant on Civil and Political Rights 1966 treaty and it is incorporated into Australian law as Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The treaty provides for the right to a fair and public hearing through legal assistance in the interests of justice (Huxtable, 1995f, p.17). Such notions were adhered to in the High Court case of Dietrich v The Queen (1992) 177 CLR 292 where, even though the Court held that an accused person has no right to be provided with counsel at public expense, it recognised an accused has a right to a fair trial which, in a serious case, may be jeopardised by lack of legal representation (Sackville, 1995, p.214). What legal aid provides for, then, is according to the aforementioned theory of justice - that the outcome of justice must be some form of equality before the law. Legal aid may not provide for total equality due to its means test, lack of funding and the nature of differing court hearings, but it remains a well established feature of Australia s legal system. paragraph examines notion of appropriate legal representation (from quote) There is, however, more to the concept of access to justice than legal aid. Part of the NLAAC s definition refers to adequate information about the law and legal system, a suggestion that justice can only be established if laws are made as accessible as possible. Members of society are presumed to have knowledge of legislation affecting them; a daunting and practically impossible task considering the amount of statutory and common law in existence. Yet, ignorance of the law does not excuse liability for its breach (Giugni et al, 1994, p.9), so Parliament is required to take the necessary steps to make legislation accessible by means of the transition to next argument argument: concept of access to justice includes adequate information about the law and legal system (from quote) supporting information: how adequate information about the 2

3 most recent physical and/or electronic publications. If true justice is achieved, these publications should be comprehensible by more people than just lawyers (AJAC, 1994, p.xlvi). This may be achievable through publishing legal documents in plain English, leading to a decline in the need for legal assistance (Threadgold, 1994, p.70). Furthermore, people will have an initial access to justice if they are actually consulted during the law making process, contributing to what should be an overall better working knowledge of the law. The above requirements are merely recommendations of the Access to Justice - an Action Plan, but can clearly be seen as foundations of justice for the individual. They represent a method to increase our awareness of, and therefore access to, the law while decreasing legal expenses. Other aspects of access to justice include appropriate legal representation for those not eligible for legal aid but who still have difficulty paying court or administrative fees and possess a limited knowledge of the law. These individuals must then make use of a legal practitioner, unless they want to further increase the inequalities by representing themselves. Of course, the potential large costs involved in using lawyers becomes apparent here, where witness reports, interpreters, photocopying, travelling expenses, court charges and transcript fees can have the effect of limiting access altogether (Commonwealth Law Bulletin, 1995f, p.166). A degree of justice is achieved, however, through contingency fee arrangements in which a practitioner may act on a no-win no-fee basis (AJAC, 1994, p.xxxv). Under this system, a client confident of attaining a positive judgement need not pay the lawyer if unsuccessful, although he or she runs the risk of having to pay the costs of the other party. In terms of money or property claims contingency fees encompass an important attribute of access to justice for all sections of the community. law should be made available comment on these requirements argument: other factors required to achieve access to justice in litigation supporting argument: how this can be achieved (includes writer s comment on effectiveness of these arrangements) It is evident that the court system will not always ensure justice in our legal system. With funding and delay restrictions on courts, access to justice can be initiated through various other methods. Gaining more popularity and acceptance is alternative dispute resolution (ADR) where the parties to a dispute attempt to resolve their differences themselves with the aid of a third party. The parties aim towards a consensual settlement (Sackville, 1995, p.215), typically through mediation. ADR holds advantages over litigation in the reduction of court delays and the costs to parties, and the potential for hostilities to be diminished. Through these elements, ADR has brought about much progress in access to justice, which is evident by its incorporation into Federal Court, Family Court and Administrative Appeals Tribunal proceedings. (AJAC, 1994, p.xxxix). Finally, access to justice also refers to fair dealings with administrative justice systems, especially governments and their agencies. These include, for example, decisions regarding pensions, welfare, taxation and immigration. An individual adversely affected by a government decision should be able to obtain an impartial and speedy review of that decision (AJAC, 1994, p.xl), presently performed by the relevant ombudsman. Again, justice can only argument: access to justice can be achieved through other methods such as alternative dispute resolution supporting argument: advantages of ADR argument: access to justice also means access to administrative justice systems Here the writer addresses some factors which influence the delivery of justice (2 nd part of question). Implies that NLAAC 3

4 properly be carried out if the review or tribunal is conducted fairly and at the least expense to the individual possible if they do not have the capacity to pay. As outlined above, there are many features of Australia s legal system in place endeavouring to improve access to justice. There remain, however, obstacles for the system to efficiently deliver justice for the community. Perhaps the most significant obstacle is the conflict of interests regarding each party to litigation. While the courts have constantly striven for individualised justice, it can be assumed the community has a desire to reduce the delay, complexity, and expense associated with litigation (Sackville, 1995, p.214). It is imperative that the legal system provide a method of litigation but, as previously noted, at reasonable cost and accessibility. As this situation is not always apparent due to inequalities within society, the system delivers a degree of justice in other forms. These include alternative dispute resolution, predominantly mediation, and most notably, legal aid. However, access to justice is not guaranteed by legal aid. There are factors associated with legal aid which can hinder access to justice. For example, despite its increase in demand, legal aid is currently facing the withdrawal of $120 million of funding over three years by the Commonwealth Government (Cramsie, 1996, p.1). There are also inadequacies relating to means test and eligibility criteria where, for example, individuals only just ineligible for legal aid will still face difficulties in paying litigation fees. The AJAC identifies deteriorating economic conditions, changes in population, a greater emphasis on law enforcement (generating a need for criminal legal aid) and court decisions imposing obligations to provide legal assistance in serious criminal charges (1994, p.xxxvii) as factors influencing the ability of legal aid to provide justice. They may also account for other areas within the legal and administrative systems losing funding which, in turn, influences the degree of accessibility. Another significant factor which impacts on the delivery of justice is the presence of discrimination. The plight of Aboriginal and Torres Straight Islanders especially has been well documented arising out of the High Court s Mabo decision, (Mabo v Queensland (No2), (1992) 175 CLR 1). This section of the community, as well as migrants, disabled people and women, have historically faced discrimination in gaining access to justice due to various societal and cultural reasons. The legal system is influenced here to the extent that they must implement programs aimed at eliminating discrimination which ultimately requires time and resources. Legal aid and the operations of community justice centres assist in reducing the discrimination but can not entirely prevent it from occurring. Issues similar to those presented here have been discussed by the AJAC in their Action Plan. They accept it is difficult for the legal system to achieve justice when public discontent with the courts is high and no simple solution to problems of delay and costs really exists. It is imperative for there to be a high degree of access to justice. There have been suggestions that if citizens felt that they could not definition is not consistent with the writer s understanding of justice. Conclusion to first section of essay on concept of access to justice. Transition to next section of essay about obstacles to access to justice argument: there are factors associated with legal aid which are obstacles to justice supporting information: these are a) reductions in funding b) eligibility for legal aid argument: discrimination is an obstacle to delivering justice supporting information: examples of groups which have been and are discriminated against Concluding comments for section on obstacles to deliver justice Concluding comments on 4

5 go to the law for justice, then social disorder and even revolution would follow (Huxtable, 1995, p.18). While this seems unlikely to happen in Australia, the possibilities may not be so remote in other less politically stable countries. In Australia, justice is certainly apparent before the law with a wide range of initiatives, programs and pressures in force in an attempt to increase access to justice. The concept has become a national issue and one that should continue to develop as social and cultural conditions change. concept of access to justice equating with concept of justice 5