The President of the Law Council of Australia has handed down a scathing analysis of the state of Australia’s legal system.
The law is inaccessible, lawyers are too expensive, and the court system is out of reach for thousands of Australians, said President Morry Bailes (pictured above) in a speech to the National Press Club in Canberra on Wednesday. It was the first speech that the Law Council has given to the Press Club in 15 years and the tone of its message was urgent.
“Our longstanding reputation as a fair, open-hearted and prosperous country with a strong legal system has distracted us from an uncomfortable truth,” said Bailes. “The growing numbers of people unable to access justice who are excluded from that system and thus from equality before the law.”
An essential aspect of the rule of law is that everyone is treated equally before the law, but Bailes conceded the Australian legal system was serving wealthy, white Australians best. He said that Indigenous and impoverished Australians could not afford to access justice, and that there were growing numbers of Australians who were being caught in the “missing middle” – unable to afford lawyers but who would not qualify for legal aid.
“These are the ordinary working people who cannot afford legal representation for everyday legal concerns such as commercial matters, family law, injury compensation,” said Bailes. “Those in the ‘missing middle’ would never be able to qualify for legal aid assistance so they fall through the cracks in our justice system.”
His comments came after the Household Financial Comfort Report in 2017 reported that job insecurity, cuts in wages and underemployment were putting Australian households under increasing strain. While many wealthy households were experiencing income gains, 41 per cent of households earning less than $40,000 reported income losses.
Bailes and immediate past-President Fiona McLeod released a progress report and three early recommendations from the Justice Project – a review into the state of access to justice in Australia overseen by former High Court Chief Justice Robert French. These recommendations included: the need for state and federal governments to work together on reform, introducing “justice impact tests” for government policies, and additional major funding for legal assistance and the courts.
“During the Justice Project I heard stories that moved and stunned me,” said McLeod, who recounted seeing a new mother in jail having her child removed and placed into state care within a day of being born. She met other women who had been jailed after calling police to report domestic violence, simply because they had unpaid fines outstanding.
“Australia needs a plan,” said McLeod. “The Justice Project will provide us with a roadmap.”
The Law Council’s “roadmap” included calling for an immediate injection of $390 million “as a minimum” for the courts and legal assistance sector to get back on their feet and to serve Australians in need.
Bailes also urged the government to introduce reforms that would help to correct the “catastrophic over-incarceration of Aboriginal and Torres Strait Islander peoples”, who in 2017 were reported to be the most incarcerated people on earth by percentage of their population (2,346 per 100,000) by the Australian Bureau of Statistics (ABS).
“We need to tackle the many contributing factors like the state of bail and parole conditions, mandatory sentencing laws, and the failure to institute early intervention strategies and address intergenerational trauma,” said Bailes.
“The work of the Law Council is now more important than ever. We must bring our strongest and most measured arguments to the table to defend the rule of law.”