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Incoming President of the Law Council of Australia discusses alternative means of dispute resolution, and individual rights and freedoms

SUSANNA LOBEZ: The Federal Government is calling for justice that is simpler, cheaper, fairer. Fair enough. But incoming President of the Law Council of Australia, Stuart Fowler, says the Government is hindering its own objectives in two ways - first, more intrusive legislation; second, under-funding.

STUART FOWLER: We see increasingly, of course, as lawyers, the inroads onto personal rights and freedoms created by Commonwealth legislation. One classic example is the taxation law which gives to the Taxation Commissioner the right to a prima facie case simply by allegation of some offence. We think this is contrary to the principle that you have a right to be presumed innocent until proven guilty. Around the world, there has been a move towards setting out charters of individual rights and freedoms, and for example, the United Kingdom now has such a charter by virtue of its membership of the European Union; Canada has adopted a charter of rights; America, of course, has one; and New Zealand has adopted a Bill of Rights. We think that this movement around the world has brought it into focus as to whether Australia as a mature democracy should do likewise.

Some judges believe that it is for the courts to, over a period of time, declare individual rights and freedoms. And, I suppose, I'd have to say that the development of the law and the development of the recognition of rights via the process of judicial decision-making, can produce very, very good results in the long term. But I think the way in which the Executive and the Parliament is now moving in its legislation to minimise individual rights and freedoms requires something more immediate than that, something clear and unequivocal to prevent the extension of this process.

SUSANNA LOBEZ: Stuart, how committed do you think the Australian Government is to access to justice for the ordinary person? What kind of information have you got?

STUART FOWLER: There's no doubt been an expression of view by the Minister for Justice and indeed the Attorney-General that they wish to provide greater access to the ordinary people to the court system and to dispute resolution generally. But whilst there have been a lot of words expressed about that and whilst the Government has produced a plethora of reports dealing with such things as the structure of the legal profession, I think those reports are important for what they don't say, and what they don't say is that the Government as representative of the community is prepared to resource appropriately a justice system which is available to all.

As I understand the figures, approximately 1.35 per cent of Commonwealth outlay is spent on sport and the arts and recreation, and but a fraction of one per cent is spent on the administration of justice and associated matters. As I understand it, in the United States, the approximate level of funding is at about 2 per cent. If we think the justice system is important and access to it is important, then there needs to be some decisions made. We need legal aid to return to the funding of the 1988 sort of years. That would involve the expenditure of a further $60 million a year. We need our courts to be properly resourced with judges so that delays which are constantly occurring and add to cost do not occur. We need to have a change in the court pleading system and the rules in relation to the way in which cases are presented to try and reduce the cost of any individual piece of litigation.

One other area that I think is important is that the Law Council has for a long time been proposing some alternative means of dispute resolution. It established the Australian Institute of Family Law Arbitrators and Mediators, and whilst mediation seems to be gaining some popularity as an alternative means of dispute resolution, we do not at this stage have rules which enable arbitration to take place in family law matters.

SUSANNA LOBEZ: It's interesting, there's been some comment made recently by people who have set themselves up as mediators that people are staying away in droves and that people seem reluctant to actually move into that alternative which is supposed to be more user-friendly and cheaper.

STUART FOWLER: Well, I certainly think that's true. You know, the theory of mediation is fine and it works for a lot of people. For many people, however, there's imbalances of power and knowledge between them and mediation is only really totally successful where you have a level playing field of knowledge and power, and in those circumstances it can produce very just results. I certainly think there are those who wish to have their say about their perceptions of their matter in a court before someone in authority, and perhaps they don't get satisfaction of that need in the mediation situation. However, we do have to look at all dispute resolution within the context that most disputes are settled. Interestingly, probably the most common form of dispute resolution is by negotiation with the assistance of lawyers, and certainly I think that somewhere in the order of probably 80 per cent of, for example family law disputes would be settled in that way. A portion are settled by alternative dispute resolution and only a very small proportion ultimately go to a court for a determination.

SUSANNA LOBEZ: Partner at Gadens Ridgeway and, soon to be at the helm of Australia's national legal organisation, Stuart Fowler.