Using the Legal system

USING THE LEGAL SYSTEMCommerce Stage 5 Core Part 2.1 Part 3

SYLLABUS AGENDA Using the legal system

accessing the law cost time procedures language issues of fairness in using the law

LINGO LIST mediation

Using a neutral third party to help resolve a legal dispute between two parties.

Means test This assesses whether the

person is able to afford to pay for a lawyer.

Merit test This assesses the likelihood of

the case succeeding. Jurisdiction test

Legal Aid is only provided for certain legal matters. These include criminal cases, family cases and a small number of civil cases, including discrimination and human rights matters.

ACCC Federal body - Australian

Competition and Consumer Commission- prosecutes businesses that do not follow the Trade Practices Act (now called the Competition and Consumer Act 2010), meaning that consumers do not have to take their own legal action.

ACCESSING THE LAW The legal system exists to help all Australians resolve

disputes in a peaceful and fair way. However, this does not mean that Australians have an

automatic right to legal representation. In other words, we do not have a right to a lawyer. We can represent ourselves in the court; although this is

often difficult as the law is complex and most people would struggle to understand the legal terminology and processes associated with the operation of our courts.

WHAT HAPPENS THEN While there is no automatic right to a lawyer, there is a

right to a fair trial. Many lawyers and judges have questioned whether a

person who does not have a lawyer will receive a fair trial. Barristers (lawyers who are trained to represent clients in

courts) often charge several thousands of dollars for each day they represent their client in court.

This means that many people are unable to afford access to the court system and use it to resolve their disputes.

In criminal matters, when a person’s freedom is at stake, this creates an even more serious problem.

LEGAL AID To ensure that people obtain fair treatment

from the legal system, Legal Aid was introduced by the Whitlam Labor Government in 1972.

Each Australian state and territory now has a Legal Aid Commission, whose role is to provide legal assistance to people who are unable to afford their own lawyer.

Any person can gain 15 minutes of free legal advice on any criminal, civil or family law matter.

WHO CAN ACCESS LEGAL AID If further advice is needed

then a formal application for assistance must be made. The high costs associated with providing Legal Aid mean that applicants for assistance must pass a number of qualifying tests. These include:

The means testThis assesses whether the person is able to afford to pay for a lawyer. For example, someone who owns their own home or earns a good income is unlikely to gain access to Legal Aid.

The merit test This assesses the likelihood of the case

succeeding. If the case is weak, and it is likely that the court will disagree with the applicant, Legal Aid may be refused. If the Legal Aid Commission believes that it is impossible to win a certain criminal case it may require the accused to plead guilty before it will agree to provide representation.

The jurisdiction test Legal Aid is only provided for certain

legal matters. These include criminal cases, family cases and a small number of civil cases, including discrimination and human rights matters.

The special legal needs of children means that they have an automatic right to Legal Aid and are not required to pass the means or merit tests.

FACTORS AFFECTING ACCESS TO THE LEGAL SYSTEM

COST While Legal Aid helps many people who cannot afford to

hire their own lawyers, many people are unable to exercise their legal rights due to the high costs involved.

This is particularly a problem in civil law matters, which usually do not pass the jurisdiction test for Legal Aid.

Example: a person on an average income who has been mistreated by a large company and wants to take that company to court. The person will not have the financial resources to fight a legal battle against a large corporation, which can afford to hire a team of lawyers.

Therefore, while the consumer has important legal rights the cost of exercising those rights may to too great.

TIME Many cases, especially civil law matters, can

take years to be heard in the courts. This often discourages people from launching

legal proceedings, even if they are likely to win. It may take years to receive compensation and

they will not have the financial resources to undertake such a lengthy case.

In a bid to reduce the time and cost of proceedings, more and more people are being encouraged to access alternatives to the courts to help resolve their legal disputes

PROCEDURES A lack of understanding of legal rights is

another factor that reduces access. For example, many people do not

understand their rights as consumers and employees.

From the earlier example of a person who has been wrongfully dismissed by an employer. Unless the person knows that the dismissal was unlawful, he or she will not seek any kind of compensation or fairer treatment.

GEOGRAPHY Those people living in remote areas have

less opportunity to gain information about their legal rights, due to a lack of technology, government services and, in some cases, lawyers

LANGUAGE Legal proceedings are very formal and the

language used is not typical of everyday language.

This can often exclude: individuals who are not familiar with the law and can also mean that

their rights are more easily eroded. Individuals who do not speak English as a first language or who have

poor literacy skills While judges will attempt to explain legal

terminology to witnesses and other participants, court hearings can be confusing and daunting events, discouraging people from accessing the legal system

ISSUES OF FAIRNESS Language and money are 2 aspects that have a

particularly heavy emphasis on a persons access to the law

Money has been addressed through legal aid Lack of knowledge about legal rights is a particular

issue for people with a language other than English. To help overcome this problem, information about a

person’s rights and responsibilities is often available in multiple languages