Governance as an SDG Accelerator

Annex F. Case studies on governance frameworks to ensure equal access to justice and citizens’ legal empowerment

Australia: Improving fairness, equity and access to justice

The Law and Justice Foundation of New South Wales was established in 1967 and is an independent body incorporated in New South Wales by the Law and Justice Foundation Act 2000 (NSW). Its main objective is to advance the fairness and equity in the justice system and to improve access to justice, particularly for socially and economically disadvantaged people. The Foundation brings together experts from different areas of expertise such as: law, evidence-based research, and the social sciences to look at access to justice through the lens of different disciplines. In particular, the Foundation seeks to use rigorous research methodologies to:

• Identify the legal needs of the community from a person-centred perspective.

• Identify what strategies ‘work’ most effectively, efficiently, sustainably and appropriately to address these needs.

• Provide necessary information and data to assist in the provision of effective legal assistance services.

Focusing first on identifying legal needs, the Foundation’s Access to Justice and Legal Needs programme (A2JLN) seeks to provide a comprehensive and ongoing assessment of legal needs and experiences of the community. The programme examines the access needs and abilities of people to:

• Obtain legal assistance (including information, basic legal advice, initial legal assistance and legal representation).

• Participate effectively in the legal system (including access to courts, tribunals, and formal alternative dispute resolution mechanisms).

• Obtain non-legal assistance, advocacy and support (including non-legal early intervention and preventative mechanisms, non-legal forms of redress and community-based justice)

• Participate effectively in law reform processes.

A2JLN adopted three main separate, but interrelated, methodological streams in order to identify the legal needs the community, with a particular emphasis on the needs of disadvantaged people. After an initial phase, the Foundation incorporated a fourth strategy to examine participation in law reform processes:

• Administrative data (service provider data). Recognising that legal service providers were providing services to citizens daily, and recording data in relation to this service delivery, the programme began by seeking to obtain access to, and then harmonise this data. After an initial scan of many data sources, for reasons of manageability and to ensure a lower socio-demographic citizen focus, the programme settled on data from Legal Aid, Community Legal Centres and from LawAccess (a free, telephone and online advice, referral and information service). This approach – the first of its kind that we were aware of – revealed both the potential and the challenges of using this ‘administrative data’ to identify and measure legal needs.

• Legal Needs Surveys (LNS). It became clear during the initial phase of the A2JLN programme that there was some concern across the sector in relation to how much of the existing legal need was actually ‘reaching’ the formal legal service providers, despite the fact that workloads seemed to be high. In other words, the service provider data was really revealing what could be called ‘expressed need’ or ‘patent’ need (the needs that people actually took action through the legal service providers to resolve), but not necessarily the unexpressed need’ or ‘latent need’ (that need that existed but did not reach formal legal service providers. The programme then adopted a strategy of legal needs surveys to identify the legal need that existed in the community – including both the need that was reaching the legal service providers, but also the need that was not.

• Targeted studies. It was nevertheless appreciated that there are certain priority groups that will often be missed in both these sources. Certain disadvantaged groups will be unlikely to use services and, depending on how they are conducted, respond to surveys. Older people (especially those in residential care), homeless people, people with mental illness or intellectual disability, and people in remote Indigenous communities fall in this category. Therefore, a range of complementary studies needed to be undertaken to ‘fill the gap’ with those groups. The A2JLN programme therefore included a strategy of targeted qualitative and mixed-method approaches to identify the legal needs of such groups.

• Participation in law reform processes. During the establishment phase of the A2JLN programme, it was recognised that for there to be appropriate and sustainable access to justice, citizens needed to be able to realistically participate in law reform processes. As the A2JLN programme progressed, it became clear that little insight on this aspect was being revealed from the existing three strategies, and so a separate research project to examine participation in law reform processes was undertaken, resulting in the report ‘By the people, for the people? (McDonald and Nheu, 2011[1]).

The Foundation’s research aims to provide the government, non-government and other community agencies and stakeholders with the data and information they need to design and deliver legal and justice services that are appropriate responsive and tailored to meet specific needs.

One example of such targeted services available for vulnerable groups is the Homeless Persons Legal Service Clinics, which take legal services to where homeless people are on a day-to-day basis. They have been found to generate a range of positive impacts, such as improved contacts between clients, lawyers and courts; clients reporting being better informed about their legal rights and options, and having addressed legal issues that are directly or indirectly related to their homelessness; and feeling better and less distracted about moving forward generally.

In order to assist in the planning and delivery of effective, efficient and appropriate legal services, the Law and Justice Foundation of New South Wales seeks to map the identified legal needs with the delivery of legal services. To do this it has developed tools and proxies such as the Need for Legal Assistance Services indicator (NLAS), focusing on target groups such as Indigenous and culturally and linguistically diverse communities. These indicators draw on data from the Australian Bureau of Statistics, and other official sources (including fines, state debt recovery, social security, school attendance, bankruptcy, local transport and accessibility data.1

Canada: A comprehensive approach to strengthening access to justice as part of the SDGs

In Canada, the Action Committee on Access to Justice in Civil and Family Matters has identified key priority areas and launched nine Justice Development Goals, which aim to address the access to justice gap in Canada. They include: Address Everyday Legal Problems; Meet Legal Needs; Make Courts Work Better; Improve Family Justice; Work Together; Build Capability; Innovate; Analyse and Learn; and Improve Funding Strategies.

Each goal identifies areas for improvement and provides examples of activities to advance. This initiative calls for action, co-operation and collaboration between all stakeholders in the justice system.

Capturing the different dimensions of legal problems

Between 2011 and 2017, the Canadian Forum on Civil Justice (CFCJ) conducted a comprehensive empirical research study to understand the extent of the problem of costs of delivering and not delivering an effective justice system. As part of this study, CFCJ conducted a national legal survey by interviewing over 3,000 Canadians by telephone between September 2013 and May 2014. A key feature of the survey is that it captures the different dimensions of legal problems from the point of view of the individuals that are experiencing them.

The research on quantifying the cost of everyday legal problems, to both individuals and the state, is particularly novel. The results shed light on the money that individuals spend trying to resolve their problems, as well as the intangible costs such as stress and emotional problems, strains on relationships and decreasing physical health. The survey also examined how these costs pass to the state in the form of social security, housing subsidies and healthcare costs.

The respondents most frequently reported private costs including lawyers’ fees, transportation, purchase of materials, court fees, other advisors and mediators, telephone, and childcare among others. The associated time costs were presented – it does not only refer to problems that remain unresolved for years but also to seeking justice, which consumes a considerable amount of time (i.e. searching for information, lawyer, filling out forms, documents, travel). Canadians spent around CAD 6,100 to address their legal issues while the average hourly lawyer fees in 2015 ranged from CAD 204-325. This is nearly the same as households spend on average annually on food and half as much as what they spend on average on shelter. In total, individual Canadians dedicate over CAD 7.7 billion annually to deal with everyday legal problems without taking into consideration missed opportunities and income loss. The study also highlighted that justiciable problems trigger health and social problems with over 50% of respondents reporting increased stress or emotional problems as a result of a legal problem. This variety of links between legal problems and other areas of people’s lives generate significant costs for a state: social assistance incurs annual costs of CAD 248 million, employment insurance incurs costs of CAD 450 million, and health care costs are around CAD 101 million.

This research paved the way to further engage with justice stakeholders, mine available data collected by governments, courts and other service providers and evaluating new justice initiatives. It also raised awareness and engaged the public in the discussion on the importance of access to justice for everyday issues.2

United Kingdom: Domestic Violence Courts in England and Wales

Victim-focus: Domestic violence

Magistrates’ courts and the Crown Court Courts deal with cases where domestic abuse is a factor including the specific domestic abuse offence of controlling or coercive behaviour. They hear cases that relate to intimate partner abuse as well as other forms of domestic abuse between non-intimate partners such as child on parent abuse. Both before, during and after court hearings, victims are able to access services such as counselling, refuge housing and support from Independent Domestic Violence Advocates. Following a guilty plea or a finding of guilt, offenders can be required to participate in offending behaviour programmes for domestic abuse perpetrators. The National Probation Service can suggest which programme is most suitable and the most common ones are Building Better Relationships (which is targeted at male domestic perpetrators), Control of Violence for Angry Impulsive Drinkers, or the Thinking Skills for the Impulsive Offender. Requirements can be imposed as part of a community order or a suspended sentence of imprisonment. Failure to comply with these requirements will result in resentencing which could include immediate imprisonment. Reoffending on a suspended sentence will usually result in imprisonment. Courts frequently also impose restraining orders, which typically prohibit contact with the victim and precursor behaviour such as entering his or her street; breach is a criminal offence carrying imprisonment. The police can also apply for a civil order, the domestic violence protection order, which imposes requirements such as exclusion from the family home that can last for up to twenty‑eight days to give victims breathing space. These are used predominantly when the victim is unwilling to give evidence.

Specialist Domestic Violence Courts in England and Wales

Specialist Domestic Violence Courts (SDVCs) do not operate under the umbrella of problem-solving courts. They are criminal courts with additional support which focus on domestic abuse. SDVCs are led by the judiciary and Her Majesty’s Courts and Tribunal Service supported by the police, Crown Prosecution Service, National Probation Service and local authorities. SDVCs’ key concerns are rehabilitation and punishment of the offender as well as protecting victims. District Judges or lay magistrates who have received additional training relating to domestic abuse issues preside over court hearings. SDVCs are characterised by multi-agency information sharing, fast-tracking of cases and the offering of comprehensive access to victim services. Safe courthouses and facilities are features of this innovation, however, review hearings are not part of the court procedure.

An important distinction is how differently Criminal Courts and Family Courts deal with cases where domestic abuse is alleged. In Criminal Courts, one set of judiciary deal with offences and domestic violence prevention orders, the Family Court is a separate jurisdiction where judges and magistrates make decisions about custody (child arrangements) which are initiated by the parties in a relationship or about care proceedings where children are at risk.

In criminal proceedings the court might be unaware of criminal proceedings relating to a family, although usually an officer from CAFCASS (the Children and Family Court Advisory and Support Service, a non-departmental public body that promotes the welfare of children and families involved in family courts) will have carried out a safeguarding procedure and will have identified such issues. Similarly, a criminal court might be unaware of relevant family-court proceedings relating, for example, to divorce or child-protection. However, in relation to cases involving children, the National Probation Service always carry out safeguarding and it would be rare that the court was not informed of care proceedings.3

References

[1] McDonald, H. and N. Nheu (2011), “By the people, for the people? Community participation in law reform: Summary report [online]”, Justice Issues No. 14, Oct 2011, pp. 1-11.

[2] OECD (2019), Equal Access to Justice for Inclusive Growth: Putting People at the Centre, OECD Publishing, Paris, https://dx.doi.org/10.1787/597f5b7f-en.

Notes

← 1.  This case study is based on inputs from the Law and Justice Foundation of New South Wales, Australia, and (OECD, 2019[2]).

← 2.  This case study is based on inputs from the Action Committee on Access to Justice in Civil and Family Matters, the Canadian Forum on Civil Justice and (OECD, 2019[2]).

← 3.  This case study draws upon material presented in (OECD, 2019[2]).