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The presence or absence of legal representation can have an impact on the role of judges/

magistrates, on the litigation process and potentially on the outcome of the hearing

The enormous increase in volume and complexity of litigation throughout Australia determine
an in - depth analysis of the subject of legal representation. This essay will address the impact that the
presence or legal representation can have on the role of judges/ magistrates, on the litigation process
and potentially the outcome of the hearing.
In 2009, then Federal Attorney General Robert McClelland said that the critical test for the
Australian judiciary system is whether it is fair, simple, affordable and accessible. 1 For many
Australians, the legal system is failing on all these fronts. In this context, it can be said that legal
representation encounters different sorts of issues, not only from a legal perspective.
In the case of a legal representation, many Australians would find it difficult to pay for a lawyer
beyond the simplest legal issues. On a more positive note, Australians who can't afford to pay for a
lawyer can seek help from legal aid commissions, community legal centers, indigenous legal services
or private lawyers acting pro bono. On the other hand, the whole process of applying for a legal aid is
quite restrictive. Due to government under funding, legal assistance commissions are providing
services to people with very low incomes. This means that many people who need help, can't afford a
lawyer and have a low income are missed out.
National Legal Aid, the body which represents the eight Australian legal aid commissions has
recognised that the legal aid means testis set at a level that allows only the most poor to be
eligible.2 The Australian Government Attorney-Generals Department has noted that 98 per cent of
legal aid recipients [receive] an income that could be considered below the poverty line. This leaves
much of Australia unable to afford legal representation but nevertheless ineligible for legal aid.3
In the last years, they were many inquiries that were repeatedly recognized the lack of access to
legal help in Australia.4
1 Attorney-Generals Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009,
Foreword
2 National Legal Aid, Submission to Inquiry into Access to Justice, 2009, 15
3 Attorney-Generals Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, 52
4 Senate Legal and Constitutional Affairs Reference Committee Legal aid and access to justice 2004, xvi, xvii, xviii, xx;
NSW and Commonwealth Governments Review of the NSW Community Legal Centres Funding Program 2007,
5;Attorney-Generals Department Review of Commonwealth Community Legal Services Program 2008, 45 AttorneyGenerals Department, Review of Commonwealth Community Legal Services Program 2008, 47; Senate Legal and
Constitutional Affairs Reference Committee Access to justice 2009, 10; Senate Legal and Constitutional Affairs
Reference Committee Access to justice 2009, 129; Senate Legal and Constitutional Affairs Reference Committee Access
to justice 2009, 56; Senate Legal and Constitutional Affairs Reference Committee Access to justice 2009, xix; Senate
Legal and Constitutional Affairs Reference Committee Access to justice 2009 xx

In the context of not receiving legal aid, Australians are forced to represent themselves as pro se
parties, which may not be a proper thing to do since Australia's laws are complex and the court
proceedings are difficult to understand. Even though there some people able to formulate legal
arguments themselves, for the rest the lack of access to legal aid it restricts their ability to exercise their
rights in a proper manner. Survey data released in 2012 by the Australia Institute showed that 88 per
cent of Australians surveyed agreed that the legal system is too complicated to understand properly
and 83 per cent agreed that only the very wealth can afford to protect their legal rights. 5 Despite these
barriers, many people are representing themselves in the court proceedings. Most of them are
terminating the judicial proceedings before the final hearing because they consider the whole process
too difficult and stressful to continue. Moreover, research shows more than a third had subsequently
had the grant terminated or not extended before final hearing, or the grant had not covered court
proceedings in the first place.6
All these aspects can conduct in a violation of the right to a fair hearing.
The right to a fair hearing is an essential aspect of the judicial process and is indispensable for
the protection of other human rights. The right to a fair hearing is an essential aspect of the judicial
process and is indispensable for the protection of other human rights. The basic elements of the right to
a fair hearing are: (a) equal access to, and equality before, the courts; (b) the right to legal advice and
representation; (c) the right to procedural fairness; (d) the right to a hearing without undue delay; (e)
the right to a competent, independent and impartial tribunal established by law; (f) the right to a public
hearing; and (g) the right to have the free assistance of an interpreter where necessary. 7
Based on this submission, the Commonwealth Government must take steps to ensure greater
equality in access to justice, including: (a) providing adequate funding for legal aid, community legal
centres and impecunious and disadvantaged litigants; Page 4 (b) increasing accessibility to courts by
simplifying rules of procedure and preventing the disproportionate impact of associated costs of
litigation for certain individual litigants; and (c) providing adequate services to assist individuals in
accessing the justice system, including legal aid and free interpreters. 8

5 The Australia Institute, Justice for all: Giving Australians Greater Access to the Legal System, 2012, 22
6 Hunter R, Giddings J, Chrzanowski A, Legal Aid and Self-Representation in the Family Court of Australia, 2003, cited
in Attorney-Generals Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System,
2009, 43
7 Human Rights Law Resource Centre Ltd , The Right to a Fair Hearing and Access to Justice: Australias Obligations
Submission to the Senate Legal and Constitutional Affairs Committee: Inquiry into Australias Judicial System, the Role
of Judges and Access to Justice, 6 March 2009, p. 3, http://www.hrlrc.org.au/files/hrlrc-submission-access-to-justiceinquiry.pdf
8 ibidem

Australia has several obligations related to the protection of the right to a fair hearing.9
The right to a fair hearing is recognised and enshrined in art 14(1) of the ICCPR: All persons shall be
equal before the courts and tribunals. In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.
Australia has previously been found to be in breach of its obligation to provide equal access to
the courts. In Dudko v Australia, the United Nations Human Rights Committee (HRC) stated that
Australia had breached its obligations under art 14(1) of the ICCPR since it did not provide an adequate
reason why a prisoner in detention was not permitted to attend an application for Special Leave to the
High Court of Australia. In that case, Australia failed to provide sufficient explanation of why an
unrepresented defendant in detention should be treated more unfavorably than an unrepresented
defendant not in detention who can participate in proceedings.10
An essential element of a fair legal system, and a specific Term of Reference to this Inquiry, is
the ability to access legal assistance for the purposes of obtaining a fair hearing. Accessibility of the
law depends on awareness of legal rights and of available procedures to enforce such rights. When
access to legal assistance is not available, meritorious claims or defenses may not be pursued or may
not be successful.

11

In many instances, injustice results from nothing more complicated than lack of

knowledge.12
It can be said that in this context unresolved legal problems cause significant social, health and
financial costs to individuals and the community. Law becomes meaningless if people are not able to
protect their rights.
Following the two court visits, one in the County Court Melbourne CBD (25.05.2016) and
one in Magistrate court - Broadmeadows (24.05.2016), the author noted that in both types of
proceedings, criminal case and domestic violence, the legal representation was undertaken in a very
professional manner and the lawyers of the parties involved provided well-supported arguments. The
general impression of the author was that Australian justice system proves often the very high
competence of those who serve the law; and the issues exposed above can be solved by implementing
9 These obligations are found in a number of the major international human rights treaties to which Australia is a party,
including the ICCPR. The ICCPR was signed on 18 December 1972 and ratified on 13 August 1980. Other legal
documents: See, generally, Department for Constitutional Affairs (UK), Review of the Implementation of the Human
Rights Act (July 2006); British Institute of Human Rights, The Human Rights Act: Changing Lives (2007); Audit
Commission (UK), Human Rights: Improving Public Service Delivery (October 2003)
10 Dudko v Australia, HRC, UN Doc CCPR/C/90/D/1347/2005 (29 August 2007).
11 Victorian Law Reform Commission (VLRC), Civil Justice Review Report 14, 2008, 607.
12 Chief Justice Murray Gleeson, Conference Opening and Keynote Address (Speech delivered at the National Access to
Justice and Pro Bono conference, Melbourne, 11 August 2006).

several governmental public policies in this matter.


During the years, the Australian public authorities have addressed the issue of the absence of
legal aid by improving access to the legal system focused on improving Australians access to legal
information and advice, including through new uses of technology, promoting early intervention and
prevention legal services that help Australians resolve legal issues early,promoting alternative dispute
resolution schemes, that enable Australians to resolve legal disputes without lengthy, expensive court
proceedings, simplifying court procedures; promoting private lawyers undertaking pro bono work; and
improving collaboration.

References
1. Attorney-Generals Department, Strategic Framework for Access to Justice in the Federal Civil
Justice System, 2009, Foreword
2. National Legal Aid, Submission to Inquiry into Access to Justice, 2009
3. Senate Legal and Constitutional Affairs Reference Committee Legal aid and access to justice
2004, xvi, xvii, xviii, xx; NSW and Commonwealth Governments Review of the NSW
Community Legal Centres Funding Program 2007, 5;Attorney-Generals Department Review of
Commonwealth Community Legal Services Program 2008, 45 Attorney-Generals Department,
Review of Commonwealth Community Legal Services Program 2008, 47; Senate Legal and
Constitutional Affairs Reference Committee Access to justice 2009, 10; Senate Legal and
Constitutional Affairs Reference Committee Access to justice 2009, 129; Senate Legal and
Constitutional Affairs Reference Committee Access to justice 2009, 56; Senate Legal and
Constitutional Affairs Reference Committee Access to justice 2009, xix; Senate Legal and
Constitutional Affairs Reference Committee Access to justice 2009 xx
4. The Australia Institute, Justice for all: Giving Australians Greater Access to the Legal System,
2012,
5. Hunter R, Giddings J, Chrzanowski A, Legal Aid and Self-Representation in the Family Court
of Australia, 2003, cited in Attorney-Generals Department, A Strategic Framework for Access
to Justice in the Federal Civil Justice System, 2009
6. Human Rights Law Resource Centre Ltd , The Right to a Fair Hearing and Access to Justice:
Australias Obligations Submission to the Senate Legal and Constitutional Affairs Committee:
Inquiry into Australias Judicial System, the Role of Judges and Access to Justice, 6 March
2009, http://www.hrlrc.org.au/files/hrlrc-submission-access-to-justice-inquiry.pdf
7. Dudko v Australia, HRC, UN Doc CCPR/C/90/D/1347/2005 (29 August 2007).
8. Victorian Law Reform Commission (VLRC), Civil Justice Review Report 14, 2008.
9. Chief Justice Murray Gleeson, Conference Opening and Keynote Address (Speech delivered at
the National Access to Justice and Pro Bono conference, Melbourne, 11 August 2006).