Fairness of the Legal System

Although the legal system strives to help all Australians resolve disputes peacefully with a fair conclusion,
nobody has an automatic right to legal representation and without a lawyer, it can be difficult to
understand the legal terminology and structure of court.

Lawyers often charge several thousands of dollars for each day they represent their client in court.
However, Legal Aid was introduced to provide people who cannot afford a lawyer their legal assistance.
Any person can gain 15 minutes of free legal advice. If further advice is needed, then a formal application of
assistance has to be made, meaning that the applicants need to pass a number of tests to qualify. Children
have an automatic right to Legal Aid and do not need to pass the means or merit tests.

1. The means test asses whether the person is able to afford to pay for a lawyer.
2. The merit test assesses the likelihood of the case succeeding.
3. The jurisdiction test is needed because Legal Aid is only provided for certain legal matters.

This seems like a fair system which allows everyone to get legal aid, however it is actually not very fair
when scrutinised carefully. Often many people are refused legal help even if there are very high stakes such
as their freedom being at risk, because they do not pass the tests. The tests make the system very unfair
because people are usually refused legal aid if the case is unlikely to succeed, getting rid of the accused’s
chances before they get a fair trial. Is it right to decide the accused’s fate before giving them a chance of a
fair trial? It is unfair to give up on something so important just because free legal advice is much needed
and it does not seem as though the case is likely to succeed, because everyone deserves a fair trial
regardless of how the outcome may seem.

When determining a person’s ability to access the legal system, there are four key issues we must consider:
cost, time, procedures and language.

While Legal Aid helps many people who cannot afford to hire their own lawyers, many people who do not
pass the tests cannot exercise their legal rights due to the high costs. For example, a consumer with an
average income has been mistreated by a large company and wants to sue, but does not have the financial
resources to get justice. The government has passed numerous consumer protection laws, such as the Fair
Trading Act and the Trade Practices Act, to help protect consumer rights. Although consumers are well
protected when it comes to these matters, there are other aspects of law where people can be denied their
legal rights.

Family law is another area of law that creates concerns over accessibility. Many families are considered too
wealthy for the Legal Aid test. For example, one partner in a divorce can be very wealthy whereas the other
partner may be forced to represent themselves or risk losing an important asset such as the family home.

The costs associated with using the legal system are not the only problem in gaining access. Time can
sometimes act as a barrier because many cases may take years to be heard in the courts. This often
discourages people from launching legal proceedings. It may take years to receive compensation and they
will not have the financial resources to keep the case going on for a long time.
Legal proceedings are very formal and the language used is not typical of everyday language. This can often
make things unfair for people who are not familiar with the law. Judges will attempt to explain legal
terminology to witnesses and other people but court hearings can still be very confusing and daunting,
discouraging people from accessing the legal system.

A lack of understanding of legal rights is another factor that reduces access. For instance, many people do
not understand their rights as consumers and employees. If a person who has been wrongfully dismissed by
an employer, they may not seek redress if they do not know that the dismissal was unlawful. Lack of
knowledge about legal rights is a particular issue for people with a language other than English. Thankfully,
information is now often available in multiple languages.

Living a considerable distance from legal advice can also be a problem. People livng in remote areas have
less opportunity to gain information about their legal rights, due to a lack of technology, government
services and lawyers.

A fair legal system means that everyone is equal, with laws treating everyone the same. The interpretation
and enforcement of the law should not discriminate.

People discriminated against

- poor
- young people
- Indigenous
- non-English speaking migrants
- women
- disabled