Victoria Legal Aid

Bevan Warner presentation to the International Conference on Law and Courts in an Online World

Bevan Warner’s presentation to the International Conference on Law and Courts in an Online World – Sir Zelman Cowen Centre, 9 November 2016

Chaired by Damian Carrick, Presenter of Radio National’s Law Report

Acknowledgement of country

I want to acknowledge that we gather today on the lands of the Wurundjeri people of the Kulin Nation.

I do so not because it is expected. I do so because I think it important on every public occasion to remind ourselves that there continues to be a lack of redress for the harm that has been levelled against Aboriginal people since colonisation. I do so because this state of affairs makes us a less just society and smaller as a nation.

It is a truism that what gets measured gets done. I note that some Indigenous organisations have welcomed our national governments recent call on the Australian Law Reform Commission, to investigate the disproportionate number of Aboriginal adults and children in out-of-home care, and in the criminal justice system. I and many others believe that this principled effort would be assisted and exampled,if our national government were to insist on and include justice targets, in its ‘Closing the Gap’ framework, alongside the targets it freely sets for health and educational attainment. There is no good reason not to do so, indeed the excuses are flimsy, and ‘changing the record’ demands that we look into and not away, from this, the most pressing issue of injustice that we face in Victoria and across the nation.

The current state of the justice system

So we have plenty of new gadgets and whiz bang applications invading our personal lives, but will technology break down old barriers or create new ones?

How will rights be enforced and what new ones might we need?

I am not Nostradamus but let me start with a quote from a 24-year-old report. It was a 1992 report out of the State of Massachusetts entitled ‘Reinventing Justice 2022’.

It came out of what was called the Chief Justice’s Commission on the Future of the Courts, and explored what the justice system would – or could – look like in 30 years. Indeed, the future it sought to predict is no longer the distant future. It begins:

‘The year is 2022. Imagine that government is largely moribund – debt-ridden, bureaucratically Byzantine, impotent. The economy, overwhelmed by public and private debt, has collapsed.

Society looks to the courts for help in solving its overwhelming problems, but resources for the courts, indeed for government generally, are in desperately short supply.’

It goes on:

‘Technology, instead of helping to improve personal lives and make business and government more efficient, is now used mainly to monitor and control the underclass…. True justice is a scarce and costly commodity.’

‘Frightening?’ it continues:

‘Imagine instead a future in which government serves society and the economy is well balanced, where social justice is a reality, and the courts enjoy resources adequate to their mission.’

‘Imagine a justice system committed to true problem solving rather than to the processing of cases, an electronics-assisted ‘court without walls,’ community dispute resolution centres, and a respected and highly professional justice workforce.’

Somewhere between these two visions, we stand, in 2016. Indeed, many elements of this dystopian justice system ring eerily true. For many Australians, access to justice, is a cruel trick or fiction.

Unsurprisingly, the experience of Victoria Legal Aid staff, confirms what the research tells us. Many people cannot and will not access the rights and protections promised by our lawmakers. They don’t know where to go to address their legal problems and they fear the prohibitive cost of a lawyer.

When they try and navigate the law alone, they are confronted by a maze of institutions and a web of seemingly arbitrary rules and procedures, which generally speaking, serve the institutions that designed them, over the people they are meant to assist. I will return to this theme later.

For those who are living in poverty or facing disadvantage, the justice system, can simply be another system that grinds them down. It can be exhausting, dehumanising and disempowering.

In many cases, people simply give up. They forfeit their rights against other citizens, companies or the government and become cynical, losing respect for the law, our lawmakers and our justice system. In their eyes, the legal system is just another tool of the wealthy and elite.

As a society, we have long entertained the fiction that if a person in dire straits cannot afford a lawyer, the state will provide them with one. In reality, eligibility for government funded legal aid is tightly constrained. While it is estimated that 14 per cent of Australians live below the poverty line, only eight per cent are eligible for legal aid.

What does this mean?

  • It means that last year only 40 per cent of people were able to see a lawyer at court for an urgent family violence matter.
  • It means that only 17 per cent of people facing involuntary mental health treatment receive any form of legal representation – compared to 100 per cent in the United Kingdom.
  • It means that people who come to a court for the first time, who are charged with what we ubiquitously call minor offences, will not get the time or follow through they need to get their life back on track.
  • It means a professional, but massively overburdened duty lawyer service, trying to keep the courts going at a pace that is unsustainable and which spreads services too thinly.
  • It means that only the poorest of the poor have access to legal assistance in matters that have a significant bearing on lives, from discrimination through to losing your children to the vagaries of child protection agencies.
  • It means that, while one in two Australians have a legal problem in any given year, less than half of those people will consult a lawyer choosing instead to consult another trusted professional, friend or family member. Nearly one in five take no response at all to their legal problem.
  • It means that huge numbers of people are well and truly locked out from the promised protections of the law.

A moral duty to explore new ways of delivering access to justice

We have to do better and the cutting edge ODR experiences highlighted by our Dutch, Canadian and American visitors’ offers hope that we too can transform the way we do justice here in Australia.

However, we won’t make the great leap forward by automating the status quo. We have to bring users into the design process; in the way Shannon Salter has described, and be prepared to tear down paper based, old world processes, originally designed for lawyers and adjudicators alone.

This is something legal aid commissions in Australia grapple with every day but have yet to fully grasp. The Dutch Legal Aid Board; unencumbered by a Federation of States and Territories, have led the way with their pioneering family dispute resolution platform; that Colin Rule from Modria, showcased yesterday.

If we could pick this platform up and squeeze into and onto Australia’s legal and family support system we would but we can’t and that is a story for another day.

However, it is because legal aid is so scarce and eligibility is so tightly constrained, that legal aid commissions are forced to innovate. We can’t and never have focussed exclusively on one-on-one forms of assistance. Indeed, not every person wants or needs a lawyer, especially where the professional power imbalance resident in the culture of the law, is exercised in a way that reinforces the client’s sense of subjugation.

Victoria Legal Aid has long published information and designed self-help materials, we have experimented and failed with mobile phone apps, and we currently triage 120,000 callers into our services each year, through a bilingual telephone advice service in 20 different languages. We helped 40,000 people with in court representation last year in criminal, family and a broad range of civil matters, usually pitting citizens against government agencies.

If we can help people a little to help themselves then that is what we prefer to do.

The devil in all of this, of course, is in the design and the new potential, is the freedom in which we humans, adapt to new technologies in our daily lives.

A utopian view of justice would see fewer or perhaps zero instances of formal disputation.

Private interests would reconcile and the exercise of government or executive power would always be benevolent. But this is not our reality. We are working with what we have got. We must change from within or change the goal posts entirely.

The legal system is not like the human body or the galaxy. It is not a naturally occurring system that despite great discoveries over many years remains and will always remain complex.

Yes, the legal system was created by intelligent beings. Yes, it has evolved to suit the times and although a degree of complexity is inevitable, we have settled for one that is far too reliant on professional intermediaries delivering one-on-one forms of assistance. Suitable for the 20th Century but not the 21st.

If we are going to unlock the law, we have to be more imaginative.

Meeting the burgeoning, seemingly infinite and often overwhelming legal need in the community requires a principled and ethical commitment to go beyond one-on-one legal help. This is one of Victoria Legal Aid’s core beliefs. Of course, rationing and limiting assistance is difficult.

We have to design appropriate services that are proportionate to need and to target more intensive services to those who face the most serious consequences and who need them the most.

We have to prioritise individuals - those who due to acute disadvantage – be that an acquired brain injury, language barrier, or low literacy – need a leg up - to ever get near equal footing.

We have to advocate for fairer laws and changes in the way they are applied - when we seem them affecting vulnerable people in unintended or disproportionate ways.

We have to tackle problems at their source and not be complicit in a system that produces unfair and unjust outcomes.

Those who legislated for Legal Aid Commissions some 35 years ago, were smart enough to recognise these requirements, in the duties and functions that comprise our enabling legislation.

And now in the modern a world of rapid technological change, there’s a fresh but perhaps not an entirely new imperative: we have a fresh and sharper take on an old duty –we must harness the potential of new technologies and online platforms - to make the law fairer and to tackle problems at their source.

Importantly, this is a legislative and ethical duty not borne out of desire to cling to the shiniest new thing.

It is not an instance of embracing technology for the sake of it – of latching on to buzzwords in an effort to be relevant. Nor is it a response to the allure of the language of disruption.

It is borne out of the reality I have described to you. Many Australians cannot and will not access the promised protections of the law. It is borne out of the fundamental purpose of a publicly funded legal aid system to facilitate access to justice, hold government to account and assist people to realise their rights.

Online technology and legal aid services

Providing the right assistance at the right time does not come in one package. It will look different depending on the person, their personal capability, the medium in which they come to us, the stage of the matter at which they seek help, and ultimately what is at stake.

Increasingly, lawyers will be required at some but not all stages of a dispute. People will continue to come in and out of an action response as they self-determine or choose what to do to resolve their own situation. In fact, obtaining tailored advice, time for reflection and determining one’s own steps to action, is a standard course for problem solving.

Re-purposing our information, advice and self-help services is one place where legal aid commissions having been putting technology to work. For instance, the Legal Services Commission of South Australia has recently begun to target and to offer online web chat services to persons hovering over priority pages on their website, and others are considering secure portals for clients to compile and access their own letters of demand and legal materials in the Cloud. I am sure that bringing parties to a dispute into an online deal room will also be part of this not too distant future.

RMIT FastTrack

Like many public sector agencies Victoria Legal Aid is at the beginning of its new tech efforts and I want to touch on two recent initiatives.

The first is a collaboration with RMIT University and the Centre for Innovative Justice now in its third year. For a number of years, RMIT had been running what is known as ‘FastTrack’; a program that brings together the brightest minds from across various disciplines to tackle big problems. Over an intensive course of 13 weeks, FastTrack students are tasked with devising a solution to a problem with the help of industry mentors as well as tech and innovation experts. The program had delivered good results but was getting a little tired.

In 2015, we cemented a FastTrack ‘access to justice’ stream. We saw a need to connect our best social justice minds with the best raw young innovators around and to have them tackle some of the trickiest challenges we see in our work.

We wanted new thinking and pitched a number of different problems to the students. RMIT wanted to offer fail fast, human centred, agile development opportunities for small teams of entrepreneurial students, from across all faculties – to simulate what they would experience in industry. Less than half who applied were selected and those who participated came from fields as diverse as aviation, psychology, marketing, engineering and computing.

The second year of our collaboration with FastTrack came to an end a few weeks ago and topping ten wonderful ideas and solutions, from solving migrant worker rights to minimising energy disconnections, was this year’s winner, Team Laser, who tackled the issue of client referrals between community legal centres with an intelligent tool called Handover.

Handover is designed to automate what is often referred to as the ‘referral roundabout’. It is a web-based application that predicts appropriate referrals based on client details and case notes. It then tracks the progress of each referral and captures appropriate data at each touch point. The aggregation of this data can then be used to assess areas of unmet legal need, feeding into how we plan our services. We are currently figuring out how to put it into production confident in our experience of the design process.

This tool shows that embracing online technology in our work can achieve a range of goals – and that it’s not about replacing lawyers with robots. In this instance, Handover has the potential to significantly improve a client’s experience, ensuring that people are not being aimlessly bounced between services, as well as freeing up key staff to focus on more intensive work.

It is a truism that we don’t know what we don’t know and what FastTrack and Team Laser show is that new solutions will inevitably come from the outside. They can come from people with vastly different skill sets and ways of approaching problems than those who work in the law or in government. Solutions grow in environments where we give permission for people to try, fail and, ultimately, imagine.

Code for Victoria

It was the desire to build more opportunities for these conditions that prompted Victoria Legal Aid to enter the Code for Victoria challenge.

For those of you who are not familiar, Code for Victoria is sponsored by the Victorian Government in collaboration with Code for Australia, which in turn is based on Code for America. Government departments and agencies nominate problems and processes with a high public value that could benefit from collaboration with industry experts. This year, VLA was one of the three successful entries.

Since August and through until early next year, we have had a dynamic team of international innovators, programmers and user-experience experts embedded in VLA, looking at how to improve the way in we triage or match clients’ needs to our services.

In just eleven weeks, we’ve already seen some exciting developments from the team. This includes a tool that could be embedded in our website to enable people to determine which legal aid service is most likely to be appropriate for them, and an automated process for sending SMS reminders ahead of client appointments. SMS alerts may not seem revolutionary but they are a step in the chain towards real time and secure electronic dealings.