Joint submission: Productivity Commission’s Access to Justice draft report

Consumer Action and Consumer Credit Legal Centre NSW have made an extensive submission to the Productivity Commission’s Access to Justice draft report. A summary of our submission is below or you can access a full copy of our submission by clicking: Productivity Commission’s Access to Justice draft report.

Summary of the submission

Chapter 5: Understanding and navigating the legal system

  • We support Draft Recommendation 5.1, that each State and Territory should fund a national referral service with a widely recognised single entry point for legal referral. However, the aim should be to evolve this national number into a multi-disciplinary team.
  • We support the use of legal health checks as part of a multifaceted approach (Information Request 5.1)
  • We welcome efforts to improve the ability of non-legal professionals to identify and refer legal problems (as suggested in Information request 5.2), but training may be improved by partnering with the CLCs that will be receiving the referrals on how to make referrals work.
  • We suggest co-location of services and systems (like Consumer Action and CCLC’s legal and financial counselling services, together with worker advice lines) are more effective than referrals between organisations (Information request 5.3);

Chapter 6: Information and Redress for Consumers

  • We strongly welcome the Productivity Commission’s focus on consumer protection in the legal services market.
  • We recommend that the billable hours method should not be used for billing individuals. Law firms should provide a binding quote for services provided to individuals.
  • We support Recommendations 6.1 to 6.5 with the exception that we strongly contend that individuals should be able to have access to resolution of billing complaints for free.
  • We strongly support the proposal that legal services regulators should have the power to directly enforce the Australian Consumer Law (Information Request 6.1)
  • We encourage the Productivity Commission to consider whether broader, consistent consumer protection standards should be applied to the legal profession, including a requirement for legal costs to be fair and reasonable.
  • An online resource with information about legal fees should be hosted by a body that is independent and is seen to be established in the interests of consumers. The information provided must be simple enough to be understood by all users (Information Request 6.2);
  • We endorse the recommendation that complaints handling bodies should have the power to investigate complaints and compel the production of information or documents, as foreshadowed by Draft Recommendation 6.8., but we encourage demarcation between a regulator’s compliance and enforcement role and a complaint handling body’s role to resolve complaints and disputes.
  • We recommend that bodies receiving consumer complaints about legal services should be required to report publicly on the outcomes they achieve, such as data on how successful they have been resolving disputes, and success rates for consumers and traders.

Chapter 7: A responsive legal profession

  • We support Draft Recommendation 7.1

Chapter 8: Alternative Dispute Resolution

  • Compulsory mediation in all disputes of up to $50,000, as suggested in Information Request 8.1, would result in compulsory mediation for the vast majority of civil disputes, not only ‘relatively low value’ claims. If the Commission makes such a recommendation, it should also make recommendations about the need for oversight and evaluation, including public reporting of outcomes, which ensures mediation is of high quality.

Chapter 9: Ombudsmen and other complaint mechanisms

  • We support findings by the Commission that industry ombudsmen meet legal need in a way that is fast, effective and free of charge for consumers.
  • We broadly support Draft Recommendation 9.1 that the profile of ombudsman services should be raised, but targeting information so that it reaches people at the point they need it the most will be more effective than blanket exercises to raise awareness.
  • We support the proposal in Draft Recommendation 9.2 to consolidate industry ombudsman schemes in appropriate cases, as long as doing so does not leave consumers without another accessible option, or reduce the level of expertise in dispute resolution.

Chapter 10: Tribunals

  • Draft Recommendation 10.1 should be expanded to acknowledge that there are a broader range of scenarios in which legal representation will improve efficiency and access to justice in tribunals.
  • We recommend that the Commission’s Final Report should acknowledge that a key purpose of Tribunals is to provide for quick, accessible, and fair justice outcomes, and that Tribunals should not just become ‘courts lite’.

Chapter 11: Court processes

  • The Commission should extend Draft Recommendation 11.10 (that courts should make more use of court appointed experts) to also apply to Tribunals, particularly for motor vehicle disputes.

Chapter 13: Costs Awards

  • We broadly support Draft Recommendation 13.2, and that costs awards in lower courts should have a standard basis that is clear to parties and their advisers at the outset of litigation.
  • We support Draft Recommendation 13.4, that parties represented pro bono should be entitled to seek an award for costs. For the avoidance of any doubt it should be clarified at law that Community Legal Centres and their clients are similarly entitled to recover costs.
  • In response to Information Request 13.1, we believe the lawyer acting should be the beneficiary of any cost award.
  • We support Draft Recommendation 13.6, which recommends courts should grant protective costs orders in appropriate public interest cases, and that courts should formally outline the criteria for granting these orders. However, we recommend the protective costs orders should not just be available against government entities, but against private parties too.

Chapter 15: Tax Deductibility of Legal Expenses

  • We accept the Commission’s position that no change be made to existing tax deductibility of legal expenses, but we encourage the Commissioners to reconsider the alternative option of increasing the fees for business users of the court and tribunals to compensate for tax deductibility enjoyed by business but not individuals.

Chapter 16: Court and Tribunal Fees

  • We do not support Draft Recommendations 16.1 and 16.2, that the starting assumption when determining court fees should be full cost recovery.
  • We strongly support Draft Recommendation 16.4,  apart from the proposal that fee postponements should be preferred over fee waivers where a party recovers costs or damages—this should not be pursued where paying the fee will still cause hardship;
  • We strongly support the use of automatic fee waivers where it has already been demonstrated through a separate process that the applicant is of very low income (Information Request 16.2).

Chapter 18: Private funding for litigation

  • Consumer Action and CCLC support Draft Recommendation 18.1 that Australian governments should remove restrictions on damages-based billing.
  • Consumer Action and CCLC also support Draft Recommendation 18.2 which would impose certain obligations on third party litigation funders.

Chapter 19: Bridging the Gap

  • We support Recommendations 19.1 and 19.2, regarding unbundled legal advice.
  • Consumer Action and CCLC do not support the introduction of Legal Expenses Insurance (Information Request 19.1).
  • Although a Legal Expenses Contribution Scheme (Information Request 19.2) would provide clear benefits to access to justice we have some concerns about how it would be funded and administered. The best way forward to evaluate a LECS would be a feasibility study.
  • Regarding Information Request 19.3, while there may be opportunity in alternative not-for-profit legal assistance models, we caution against any argument that self-funded services are the solution to ‘the missing middle’, or that they can replace the need for government funded services.

Chapter 21: Reforming the Legal Assistance Landscape

  • We understand that the National Association of Community Legal Centres has responded to this chapter in detail. We endorse that response.
  • In addition to that response, this submission:
    • Notes the emphasis in the Draft Report on the consistent application of eligibility criteria to ensure limited legal assistance funding is well targeted. However, eligibility criteria is only one part of effectively targeting services;
    • agrees that better service delivery must be informed by needs analysis. However, we submit that this analysis is best done collaboratively with services and done in a way that ensure continuous ongoing reflection on what works well for a service and why and what needs to be improved;
    • and strongly supports the comments in the Draft Report about the value of strategic advocacy and law reform activities by CLCs and LACs. CLCs play a key role in identifying and acting on systemic issues and these activities are an efficient use of limited resources.

A full copy of our submission is available by clicking: Productivity Commission’s Access to Justice draft report.

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