SPEECH BY COLIN NEAVE, COMMONWEALTH OMBUDSMAN

Transcription

1 SPEECH BY COLIN NEAVE, COMMONWEALTH OMBUDSMAN 2014 ANZOA CONFERENCE MUSEUM OF NEW ZEALAND, WELLINGTON 30 APRIL 2014, PM (WITH PROFESSOR RON PATERSON, NZ OMBUDSMAN) Title: Access to justice where do Ombudsmen fit in? Theme: Is there really a problem with access to justice? Introduction Thank you Judi [Jones]. Ladies and gentlemen, it s a pleasure to be here to talk to you this afternoon with my New Zealand counterpart Ron about where ombudsmen fit in the justice landscape. I d like to begin by telling you a little about my experience on the advisory committee that compiled the report into access to justice under chairman Justice Ronald Sackville QC in Then I d like to challenge you a bit on whether there really is a problem with access to justice. Let s see where that goes. As I said, in 1993 I was a member of the advisory committee, commissioned by Australia s then Attorney-General, Michael Lavarch, inspired, I believe by then Minister for Justice, Duncan Kerr, to consider ways in which our legal system could be reformed in order to enhance access to justice and make the legal system fairer, more efficient and more effective. Another aim, if you like, was to consider ways to make the system fairer, simpler and more affordable. The outcome of that review, published in 1994, was Access to Justice an action plan, a 500-page document that made numerous recommendations. Looking back, it was an interesting time to do such a report because as we stated in the report, it was a climate that was responsive to constructive suggestions for change in the legal system and reforms were already occurring across the system. At that time, industry ombudsmen were relatively new and on the increase because of the perceived failings of courts as a forum for resolving disputes between service providers and consumers.

2 Court-based and non-court-based dispute resolution and mediation services that allowed complainants to avoid costly litigation were expanding rapidly. I believe the report was responsible for generating changes that made a solid impact on the justice system. For example, we proposed that constraints on law firms advertising be removed; that legal services be exposed to competition policy. One positive outcome of that was the no-win, no-fee advertising that soon followed. We also recommended that legal aid be more broadly directed; for example, that they offer telephone advice schemes and incorporate the use of interpreters. The establishment of NADRAC, which had a broad responsibility to promote ADR and ensure that the standards of ADR services were high. Also, the report led to the development of the benchmarks for industry-based customer dispute schemes, which in time led to the development of several regulatory guides by ASIC. It s interesting that now, exactly 20 years after that report was tabled, the Australian Productivity Commission is publishing its report on its inquiry into Australia s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law. Again, fairer, simpler and more affordable. So what has changed? Given the detail, scope and terms of reference of that first report, it is hard to believe we are still discussing the need for greater access to justice 20 years on. But more on that in a moment. It s worth looking at the definitions of the term access to justice. Access is simple enough it is an individual s ability to make use of something independent of need. Justice, in a legal sense, is the administration of the law according to prescribed and accepted principles. Dictionaries will also tell you it is righteousness, equitableness, or moral rightness. A concept of moral rightness based on ethics, rationality, law, natural law, religion, equity and fairness. American philosopher John Rawls described justice as the first virtue of social institutions, as truth is of systems of thought.

3 Rawls analysed justice in terms of maximum equal liberty regarding basic rights and duties for all members of society, with socio-economic inequalities requiring moral justification in terms of equal opportunity and beneficial results for all. Aristotle said justice consisted in what is lawful and fair, with fairness involving equitable distributions and the correction of what is inequitable. So what, then, is access to justice? Back to the Productivity Commission, they define it as making it easier for people to resolve their disputes. I think that definition sums it up pretty well. I also rather like former Attorney-General Mark Dreyfus definition from a presentation he made to a group of law students last year: Access to justice is broader than the ability of an individual to enforce their rights in court. Access to justice is a concept that also relates to how the institutions of state, of which the formal justice system is only one part, operate to ensure that all Australians live under the protection that our laws aim to provide. While people must always have the opportunity to fight for their rights in court, justice is not something individuals must constantly be fighting for. Those comments highlight the importance of the diversity of work that agencies or mechanisms external to the system offer to the community. In fact the formal judicial system the courts is an excessively narrow perception of justice. We all know that generally only the most intractable cases go to court. There are many options outside the court system legal aid services, administrative tribunals, parliamentary and industry ombudsmen, even community figures. For example, in many communities, religious or other leaders play a large part in resolving disputes. The free services offered by citizens advice bureaus and financial counsellors are examples of services which help people resolve disputes as well as getting advice. So if that s the case if there are so many recognised and effective channels for people to use to resolve disputes are people actually missing out? Is there a lack of access or are we simply continuing to articulate an old problem? It is often reported that there is a crisis in our legal system that threatens the concept of justice for everyone.

4 For example, the Legal Australia-Wide Survey, published in 2012 by the Law and Justice Foundation of NSW, found that legal problems were widespread and affected a significant number of Australians. I m not here to argue with or against that statement. But if there is a crisis, I don t believe it s for a lack of services or access to them. It may be there are barriers to people finding the right service for them which can be overcome with simple, low-cost solutions. I ll get to that later in my presentation. But I don t believe there is a lack of access. And that s where we come in. The value and contribution of ombudsmen where do we fit in? Ombudsmen are the vital, invaluable middle ground in the justice spectrum. According to the Productivity Commission report, ombudsmen in Australia resolve more than three-quarters of a million (773,000) disputes each year. That compares to just over 370,000 by various tribunals and more than 670,000 in courts. Ombudsmen provide access to justice through accessible, effective and targeted complaint-handling services. Importantly, we are also a source of intelligence about systemic issues. We provide services to thousands of people in many countries around the world in a low-cost or no-cost way. While there have been decreases or cuts to legal services in many instances, the work of ombudsmen has kept increasing. For example, during the almost 15 years I was Banking then Chief Ombudsman of the Financial Ombudsman Service in Victoria, the organisation saw exponential growth. That was partly due to the sector recognising the value of an ombudsman, the influence of the regulator and also to increased demand. The privatisation of public services and a desire to promote industry selfregulation mechanisms has no doubt helped to increase that demand. ANZOA s submission to the Productivity Commission report makes the point that the growth of ombudsmen has paralleled the growth in concern for access to justice and interest in alternative dispute resolution. It said, It is clear that ombudsmen were conceived and have flourished in no small part because of the recognition that traditional justice mechanisms also had shortcomings for consumers, including problems with accessibility and cost of ADR, and the time for disputes to be resolved.

5 It s also relevant that ombudsmen in theory employ inquisitorial techniques rather than the adversarial approach taken in courts. But are we getting influenced in our approach by the adversarial approach taken elsewhere in the justice system? That s another subject for discussion on another day. Ombudsmen operate to address a wide range of disputes. Disputes are typically handled through early resolution methods, such as initial assessments or referrals (in our case, often back to the department or agency), but may require conciliation, facilitation, investigation, or in rare cases, determination or recommendation. Government ombudsmen deal with disputes about the conduct and decisionmaking of government agencies or with disputes in a particular policy sector. We sit alongside other government-funded complaint bodies that have similar functions including rights commissioners, health complaints bodies and fair trading or consumer affairs offices. Indeed, we sit alongside many bodies, where the work those bodies do could easily be performed by us: another issue for separate consideration. Industry ombudsmen deal with disputes about service providers in key industries, such as energy and water, financial services, public transport and telecommunications, and receive industry funding to do so. How do we promote access to justice? The Productivity Commission report outlines four major areas that it identified in which ombudsmen promote access to justice. 1. Ombudsmen provide a mechanism for resolving low-value disputes. In order to deliver access to justice, it is necessary to provide mechanisms that deal with issues in a proportional manner. For example, a court or tribunal is not the appropriate forum to deal with a dispute over a train ticket. Addressing issues at this lower end of the spectrum is important because a number of people could suffer the same treatment, causing significant cost to society, yet insufficient cost to any one individual to justify legal action. Further, early dispute resolution can prevent small problems becoming big problems. So an ombudsman creates a practical and proportional alternative to the courts.

6 2. We help to overcome power imbalances. Some consumers may feel powerless to assert their rights when dealing with large service providers or government agencies. Ombudsmen can help overcome these power imbalances. A survey undertaken by the Telecommunications Industry Ombudsman (TIO) highlighted the difficulties faced by consumers in dealing directly with industry. More than 50 per cent of consumers surveyed said they had contacted their service providers five or more times to address their matters before going to the TIO. Almost 50 per cent of consumers had interacted with more than three contact points or departments at their service provider before lodging a TIO complaint. Nearly 27 per cent of consumers surveyed said they had spent between three and six hours trying to resolve their complaint with their provider, and another 20.3 per cent said they had spent more than nine hours before giving up and turning to the TIO. 3. We are simple to use. Ombudsmen are independent and impartial, so they do not provide advocacy. However, they actively pursue the resolution of disputes rather than leaving primary control of the case to the parties, as has occurred historically in courts (and to a lesser extent, tribunals). This model removes the need for professional advocates or representatives. Ombudsmen provide easy options for individuals to lodge their complaints. Ninety per cent of complaints are made by phone or electronic forms available on the internet. 4. We identify and address systemic issues. A further way in which ombudsmen provide access to justice is through the conduct of systemic investigations. Ombudsmen are not limited to the investigation of complaints individually, but may instigate our own investigations (known as own motion investigations) to identify systemic issues. This generally occurs when a number of similar complaints are received. Systemic investigations can represent an efficient form of dispute resolution since they address all instances of wrong treatment in one investigation. An own motion investigation can look comprehensively at the scale of the problem, the likely causes and possibly remedial action, either specifically in an

7 individual case or generally by a change to legislation or administrative policies or procedures. Most own motion investigations result in the publication of a report, and we have published reports on matters as diverse as suicide and self-harm in immigration detention, youth allowance, visa processing, mail redirection, the use of interpreters, postal compensation, disability support and the use of coercive powers. Only this month I released a report into complaints received about Centrelink, which is part of the Australian Government s Human Services portfolio. The report was sparked by an increased number of complaints from people dissatisfied with Centrelink s service delivery arrangements; in particular, long waiting times, unclear correspondence, the inability for people to use online services and, at times, a failure to appropriately and sensitively respond to the person s circumstances. The report features 40 case studies that illustrate the problems that led Centrelink customers to complain to my office. The department responded positively to the report and the 12 recommendations we made to address the shortcomings in their service delivery. They have agreed to implement all of the recommendations, either in full or in part. I ll add one more to the PC s points We get results. Let me give you a recent example: I, along with many others, am extremely frustrated and disillusioned that after X years of trauma and humiliation at the hands of a government department, my submission has so far come to absolutely nothing after repeated s, phone calls and letters to both the Minister and Prime Minister. Your actions, however, have yielded more response in one week than the rest of it put together and I thank you sincerely for your efforts. There is no other avenue I can take as legal action is out of the question due to high costs. The Productivity Commission says there is a general consensus that ombudsmen are effective in promoting access to justice. These views are supported by data on timeliness and user satisfaction. Ombudsmen resolve complaints relatively quickly. ANZOA reported that 80 per cent of complaints are resolved within one month, and 97 per cent within two months. This is considerably faster than

8 courts and tribunals; for example, most tribunals resolve disputes within a median time of six months. While just outcomes are difficult to measure, some information can be gained from consumer surveys. ANZOA reported that of its six members that undertake regular consumer satisfaction surveys, satisfaction with their services is around 86 per cent, with consumers either satisfied or very satisfied with the overall handling of their disputes. As for industry ombudsmen, consumers usually rate their offices more positively than service providers do; however, recent survey results showed increased service provider satisfaction. I have to admit, though, that while people like us and believe we are doing a good job, it s not all beer and skittles. One area we need to work on is raising our profile. The PC report said a significant proportion of unmet legal need could be served by greater knowledge of, and access to, ombudsmen services. It said low visibility prevented many people from using ombudsman services. Productivity Commission estimates suggest that some of the key areas of unmet legal need (where people experienced legal issues but were unable to resolve them) do not represent gaps in the availability of appropriate dispute resolution services but, rather, gaps in community knowledge about those services. In particular, disadvantaged clients who stand to benefit most are often not well informed of ombudsman services. We know that is the case with culturally and linguistically diverse and Indigenous clients, whose awareness of our services is low. It is an issue we are working hard on with our outreach program. As for many organisations, resourcing is an issue for us. But it does get back to my earlier point that it s not necessarily a lack of access that prevents people from accessing services, but rather people being able to find the right service for them. The Attorney-General s Department offers a simple, low-cost and very good solution. It s a website that is simply called Access to justice. It matches an individual s issues to relevant services and is free of charge. It s basically a find-a-resolver.

9 For example, if you need, say, information on who to contact over an administrative decision by a government agency (oddly enough, my bailiwick), you simply click on government in the drop-down box and a page appears with information and contact details for Commonwealth and state ombudsmen, appeals tribunals and councils, veterans entitlements reviews, the Tax Office disputes process, social security assistance and more. Other dispute topics include family, bankruptcy, neighbour, workplace, intellectual property and consumer. The site has quick links to finding an ADR practitioner or lawyer, courts and tribunals, the small business commissioner and so on. If you get a chance, have a look at it. It is a very good service. In conclusion, we all believe access to justice is a hallmark of a fair society. Ombudsmen are a vital part of maintaining that. We resolve complaints impartially, informally and quickly to allow people to avoid more formal processes including litigation. That s where we fit in. With initiatives such as the no-win, no-fee advertising by law firms, the access to justice issue is not as great as it was when I was involved in the report in However, I admit there are still soft spots. The most vulnerable in society need assistance to find the right place where they can be helped. Generally, those places exist, but we need to be ever vigilant. Ombudsmen are well placed, resources permitting, to be important players in that process of providing help to find that place. Thank you for your time.