In order to receive fair treatment through the legal system, it is often necessary to seek assistance from a lawyer. This can be an expensive exercise, depending on the matter to be resolved and one’s capacity to pay for it. The financial costs of pursuing justice can be so high that a great many people do not do so. In a system in which one rule of law is supposed to apply to all, this has fundamental implications for the rights of citizens.
Since 1973, the system of legal aid in Australia has provided legal assistance for people who would otherwise not be able to afford access to justice. Unfortunately, for much of the time since then the legal aid system has been underfunded. Because funding does not match the level of need in the community, Legal Aid Commissions at the state/territory level use complex mechanisms for rationing legal aid so that only the most deserving cases qualify.
In practice, the tight rationing of legal aid means that only the poorest and the richest Australians can ever hope to receive legal representation. For those who inhabit the vast middle ground between very poor and very wealthy, the legal system can remain forever inaccessible. This is true regardless of the strength of someone’s case or the degree of injustice that they are seeking to remediate (unless they are fortunate enough to receive pro bono legal help, perhaps because their case has a public interest dimension). But if our legal system effectively excludes the majority of Australians, then we cannot be confident that the system is delivering justice for all.
The starting point for good policy in the administration of justice should be an assumption that legal needs ought to be met, irrespective of an individual’s economic or social circumstances. While it might be straightforward to identify someone whose legal needs are met (e.g. when they took a matter to court with the assistance of a lawyer), unmet need cannot necessarily be identified precisely or in all situations. Indeed, some of the most important areas of unmet need may relate to problems which people did not know could be solved via legal intervention.