Delays often hinder a person’s access to the legal system. While some delays are necessary in the legal system – indeed, legal action requires preparation – many delays are unjustified and lead to unfairness in the legal system. For instance, in a personal injury civil claim, a plaintiff may experience hardship if he or she is forced to wait a long time to receive compensation. Witnesses may forget information if there is a long time before trial, and expert witnesses will charge more for their time if the trial itself is held up. In criminal cases, an accused may be held in remand, and potentially have their liberty unfairly denied. With delays, legal costs also rise, which may cause financial hardship to the parties involved. Rising costs, as well as a lack of respect for the legal process, may deter parties from pursuing claims.
Delays are caused for an array of reasons. Courts often lack adequate funding and resources to efficiently carry out justice. However, people may deliberately delay proceedings. For example, lawyers may drag out pre-trial proceedings in a civil claim in order to put financial and mental strain on their opposition, and, therefore, to force an out of court settlement. Additionally, there is a six week court vacation period over Christmas and a two week break in July.
The legal system is becoming decreasingly accessible due to an increase in overall costs and a decrease in legal aid funding. While demand for legal aid has increased since 2008, funding for legal aid services has not.1 As a result, fewer people are eligible for funding. Increasingly, lower-middle class and middle class people are ineligible for legal aid, and are unable to pay for legal costs themselves.
Parties do not just pay for court costs, but for solicitors and barristers (at varying rates), expert witnesses, and will pay the opponent’s costs if they lose a civil case. Costs will depend on the expertise of solicitors and barristers, complexity of the case and length of proceedings.
The Australian legal system is based on the British system, and therefore may neither be fair nor accessible to people who are unfamiliar with the system, or with its social and cultural context. Police powers, as well as laws, vary across different countries and may create confusion for people who are accustomed to different cultures and legal systems. Facets of the Victorian legal system, such as bail, are not present in all legal systems and as such the concept may be misunderstood. The adversary system of trial is not used in all countries, and as such, parties may not fully understand that they are responsible for preparing and presenting their own cases. There may be problems with oral evidence for non-English speakers, particularly if their evidence has no direct English translation. Furthermore, judges and juries may misunderstand a party’s body language, due to a lack of understanding of how a party’s culture differs from their own.
Despite comprising approximately three per cent of the Australian population, prisoners who identified as Aboriginal or Torres Strait Islander comprised 27% of the total prisoner population in Australia in 2013.2 Aboriginal and Torres Strait Islander prisoners may be unable to secure a fair and unbiased hearing due to cultural differences and a lack of familiarity with the British-based legal system. In some Aboriginal cultures, direct questioning is seen as discourteous. This, in turn, may lead police and the courts to view an accused with suspicion. Furthermore, in some Aboriginal cultures it is disrespectful to make direct eye contact, whereas in the Australian legal system a lack of eye contact may be seen as a sign of guilt.
Alison Savage, ABC News, 20 August 2014, “Fewer people able to access Legal Aid due to lack of funding, Victorian auditor general finds”, http://www.abc.net.au/news/2014-08-20/fewer-people-able-to-access-legal-aid-due-to-lack-of-funding/5683488 ↩
ABS, 5/12/2013. “Aboriginal and Torres Strait Islander Prisoners”, http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4517.0main+features62013 ↩
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