Senator LUDLAM (4:09 PM) —I want to add some remarks to the chair’s comments on item 4 of documents presented out of sitting, which was the second report of the Senate Legal and Constitutional Affairs References Committee. The committee undertook, in parallel with the inquiry into the judicial system and the role of judges, an inquiry into access to justice. It was held under the broad framework of looking at a review of all the work that has been done on this in Australia, through various committees inside and outside of parliament, over the last 10 or 15 years. It came to the very strong conclusion that committees have long been making recommendations about access to justice—specifically the asymmetries in people’s ability to access justice—and that most of the recommendations from the various committees, going back 10 or 15 years, still remain unaddressed to this day.

I am really proud of the work that the committee undertook, under Senator Barnett as chair but with solid contributions from all parties and everybody who got involved in this inquiry. I particularly mention the helpful assistance received from the committee secretariat, including Mr Peter Hallahan, who is probably going to be mentioned a number of times today, who really went beyond the call of duty. A lot of witnesses appeared before this committee to basically tell us, ‘This needs to be the last time we turn up. We’ve been telling parliamentary committees for 10 years that access to justice in this country is, in some senses, broken.’ People were using words like ‘crisis’ or ‘beyond crisis’.

What we are specifically referring to, really, is the difficulties that are faced by the community legal sector in representing people who find themselves caught up in the judicial system for one reason or another. That applies right across the board, whether it be family law, environmental law or any other kind of matter. There is an enormous hierarchy in this country when it comes to access to justice. Unfortunately, in some cases, through structural inequalities in our justice system, the kind of justice that you can access comes down to the size of your cheque book.

We established the inquiry in February of last year. We spent six months on this project. We took 68 submissions and held four public hearings. We reported late last year, with 31 recommendations that were unanimous right across the parliament. I think many of them will be very familiar to the government or to people who have been following this debate for a while because they are indeed recommendations that committees have been making for a long period of time. What we looked at were the longstanding gaps in our legal system and the fact that if people who seek legal help need to draw on Legal Aid or access the community legal sector, sometimes that help simply is not there. We do not even have a clear idea of the unmet need.

What we do know is that Aboriginal people, and particularly Aboriginal women, are singled out as the people least able to access justice under the Australian system. This is for a variety of reasons, whether it be the complexity of the legal system, a lack of resources—which is obviously the big one—remoteness, in some cases, or language barriers. People speaking English as a second or third language have been dragged into the court system for things that are simply incomprehensible. Right before the committee reported, we saw in the press reports of a kid who was detained for being in possession of a stolen Freddo frog. He was an Aboriginal kid in regional Western Australia. That very strongly underlined exactly the findings of the committee that Aboriginal people are viciously overrepresented in our legal system and that there are very important structural reasons for that.

Many of our recommendations go directly to the urgent resourcing of Legal Aid and the community legal sector more broadly. I think these recommendations are very well timed. They need to go into the government’s budget considerations for budget round 2010. What we need to see in this area in the forthcoming Commonwealth budget is structural funding underpinning the health of the legal system so that people actually can access justice. Everybody who presented before us was grateful that the Attorney-General had put a bandaid on a badly leaking and bleeding system. They were glad that there was some interim funding there to allow the community legal sector to survive, but everybody acknowledged that that is not the way to go forward. We need structural, ongoing funding to remove the gross inequities, distortions and asymmetries in our legal system in Australia.

As I said, the recommendations that were made were unanimous. There is actually very little in the report that I disagree with, because of the collaborative approach that was taken by everybody who participated in this inquiry, but there were a number of points that we felt were very important to make in addition, without undermining the work that the committee has done unanimously. The first recommendation we made was that the current purchaser-provider funding arrangement be abolished, because that is one of the things that has led to the structural asymmetry and people in community legal centres being simply unable to fund the retention of solicitors, researchers or people to run the basic operations at CLCs. The further you get from the big cities, the harder it gets to run these operations and the harder it is to retain staff.

Another recommendation we made was that there should be a right to legal representation. Without a bill of rights, and without these things spelt out in our Constitution, the right to legal representation in Australia is highly ambiguous. What we are finding with the skyrocketing number of self-represented litigants in our court system is that it is a disaster for many of those people, and it also unnecessarily ties up the courts with matters that should not have been referred to court or could have been dealt with more rapidly if people had adequate representation in the court system.

In one of the hearings we held in Sydney a matter was raised around the Migration Act 1958 which absolutely stood out as an urgent piece of law reform for us. Ms Skye Rose, project manager, and John Corker, president, of the National Pro Bono Resource Centre gave evidence to the .committee in Sydney last September about these provisions. Sections 468E and 468F require lawyers to provide a certificate stipulating that there are reasonable prospects of success in the matter, which enables cost orders to be made against lawyers in unsuccessful cases. I do not know whether there is anything else in any statute in Australia that requires that kind of undertaking from lawyers. And obviously it has a really chilling effect on people’s ability to access representation—some of the most vulnerable and marginalised people who are finding their way into the court system. So one of the recommendations we made was that that should simply be repealed without further debate.

There is another things that I think would have been a helpful recommendation to get into the majority report. You will notice that many of the recommendations we made signal the need for urgent research in different areas of law reform. We proposed that a legal resources research centre be established—as did a number of submitters and witnesses—that would basically wrap some of these different proposals for far-reaching law and policy research to be undertaken under one roof. We thought it was quite a good proposal. There is a model in the UK, the UK Legal Service Research Centre, which provides us with a reasonable template for the sort of thing we are talking about in Australia. It could undertake qualitative and quantitative research, along with some of the theoretical analysis that simply is not done in Australia at the moment, apart from in an ad hoc way when a committee visits some of these particular issues. So we believe that compiling all that data and getting all that research under one roof would make the government’s job easier and would certainly provide some of the research clout that we simply do not have in Australia at the moment.

In closing, I would again like to thank the Chair, and the Deputy Chair, Senator Crossin, for the collaborative way in which they undertook this work; Chiara Lawry, who was working in my office at the time, who did an enormous amount of work in preparing the materials for us and reading through the submissions; and the committee secretariat and staff. There is a really urgent call to action in this report. While we are standing here in this parliament, many hundreds of people are sitting in Australian jails who probably should not be there, and many hundreds of people are forced through tortuous processes in various courts around the country who do not necessarily need to be there. And we are not just discovering this now; it has been a matter of record since well before I got here.

I hope the government will read this report and undertake to implement the recommendations that come from right across the board from all parties and most urgently make sure that in the budget considerations this year we help some of the people who are struggling, under enormous pressure, to represent people through the court system. Ultimately, any one of us at any given time could find ourselves in these situations. But, of course, we in this chamber do not live under the conditions of people who find themselves entangled in the court system with no resources and no backup whatsoever. I very much commend this report to the Senate, and I look forward to seeing on budget night that we begin to address some of the longstanding concerns that have been raised.