Comments on the Productivity Commission’s Draft Report on Access to Justice Arrangements
Disability Advocacy Network Australia (DANA) is the national peak body for independent disability advocacy and represents the collective voice of over 70 disability advocacy organisations across Australia. DANA works to a vision that includes and values people with disabilities and respects human rights for all. Independent advocacy agencies address the advocacy needs of those people with disabilities who are more likely to be vulnerable to abuse, neglect and/or breaches of their fundamental human rights. They do this through a variety of delivery models that include legal advocacy, systemic advocacy, individual advocacy support by paid advocates, citizen advocacy using volunteer advocates, self advocacy development and family advocacy development and support.
Disability advocates are deeply interested in protecting rights and achieving just outcomes. In our recent survey of advocates, the majority of respondents identified access to justice for people with disabilities as having shown little or no significant improvement since 2011, when the National Disability Strategy commenced.[1] A substantial proportion of people with disabilities cannot afford to secure legal services and legal assistance services are not meeting their needs. The high costs of accessing justice services impacts disproportionately on the lives of people with disabilities, as they often experience multiple forms of disadvantage, disempowerment and human rights abuse. Cultural and attitudinal issues among legal professionals and in the broader community, as well as the nature of the legal system, further disadvantages those with a real or perceived lesser capacity to participate in the highly formalised and ritualised structures of the justice system. Advocacy agencies are not sufficiently resourced to support the rights and needs of clients:
In many areas there is still no access to individual advocacy for people with disability. Grants of Legal Aid do not recognise that it is inevitable that if a solicitor is to adequately assist a person with cognitive impairment, they will need to spend more time. Hence they often do not go the extra mile to provide effective representation/casework.[2]
People with disabilities are less likely to afford legal representation and depend on under resourced Legal Aid to accept their application. This means that people needing legal representation who may be less than likely to have success in a case or who are not in absolute crisis are often not accepted for Legal Aid. Advocacy is substantially underfunded and our organisation has had to close our books and turn away significant numbers of intakes as we are beyond capacity. We are only able to respond to people in absolute crisis.
DANA commends the Draft Report for its clear recognition of the barriers faced by people with disabilities in accessing legal services.[3] The Productivity Commission clearly understands that people with disabilities often experience multiple forms of disadvantage and social exclusion, and are more likely to have complex legal needs that are not being met by the current civil justice system. In their submissions to the inquiry, services that provide legal advocacy, advice and/or representation to people with disabilities (including DANA members Queensland Advocacy Incorporated, Australian Centre for Disability Law and the Intellectual Disability Rights Service) have provided strong evidence of this unmet need, and the importance of adequately funding such services. DANA submits that improved access to disability advocacy, including models of non-legal advocacy, would provide crucial support for people with disabilities, contributing to the avoidance of legal disputes.
Independent advocacy making justice accessible
The disability advocacy sector clearly plays a very important role in rights protection on the individual level, and with more resourcing, would be capable of providing more equitable access to civil justice. Independent advocacy draws attention to matters that have been overlooked or dismissed through justice processes. Advocacy plays a vital role by directly working with service providers, carers, and tribunals, for instance to challenge substitute decision-making appointments or practices. Advocates sometimes work alongside vulnerable people with disabilities in legal matters to make sure the lawyer understands relevant lived experience and its importance, may write directly to prosecutors, magistrates and judges to ensure they are apprised of the relevant facts and those matters that might not ordinarily be canvassed or understood. Advocates can often provide the detailed knowledge of the individual client, and play a role in interpreting meaning to and from the person with cognitive impairment or communication barriers. Increased capacity in the advocacy sector to respond to client needs prior to crisis stage would enable more people with disabilities to claim and defend their entitlements earlier, reducing the need for expensive intervention and legal fees or costs.
Driving systemic improvement
DANA applauds the Draft Report for articulating the great value of the strategic advocacy and law reform efforts of legal aid commissions and community legal centres.[4] Similarly, the daily experience of disability advocates in assisting disadvantaged clients is harnessed to identify systemic issues and provide input into reform processes. The advocacy sector plays a vital role in driving change on a broader level:
Disability advocacy organisations have been at the forefront of facilitating and developing supported decision making initiatives.
Some disability accommodation service providers have shown increased awareness and understanding of violence in supported accommodation for people with disabilities and have shown improvement in taking appropriate action, although substantial further improvement is required. This has been achieved through advocacy at individual and systemic levels.
Advocacy organisations have been involved in inquiries into access to justice for people with disabilities, helping to shed light on the issues on the ground.
Providing holistic client support
In its exploration of integrated service delivery and effective referral networks, the Draft Report quotes the Law and Justice Foundation of NSW,[5] which states:
the multiple legal and non-legal problems faced by people with a disability indicate that they may require both legal assistance and broader non-legal support in order to achieve complete resolution of their legal problems.[6]
Disability advocates commonly pursue a holistic problem-solving approach in their work with clients, responding to the individual’s needs by identifying and addressing both legal and non-legal issues of concern. Advocates are often experienced at assisting clients who do not perceive the legal dimensions of their problems, or understand how the law applies to their situation, and are therefore unlikely to seek out and instruct a legal adviser. The client intake processes of advocacy agencies may often resemble “legal health checks”, as described by the Draft Report. Independent advocacy agencies sometimes operate outreach services to reach vulnerable people living in institutions, or in remote or regional areas, and often actively refer clients to other services, enhancing collaboration and integration. However, the performance of these outreach, referral and screening functions by advocacy agencies is often severely constrained by shortages of resourcing and capacity, related to the chronic under-funding of the sector. Dedicated funding to independent advocacy agencies would therefore be needed for comprehensive delivery of legal health checks and for legal problem identification training for non-legal advocates.[7]
Resolving disputes and complaints earlier
Appendix B on ‘Unmet legal need’ identifies gaps in the informal dispute resolution avenues on offer, including disputes involving disability care, aid and equipment.[8] The inadequacy of current complaints mechanisms was a topic DANA considered recently in our submission to DSS on progress under the National Disability Strategy, as “Improving the reach and effectiveness of all complaint mechanisms” is listed in the Strategy as an area for future action. The experience of the advocacy sector is that complaints mechanisms can play a crucial role in effecting change and improvements in disability care and supports, and in other service systems. Far too often, however, the capacity to pursue a complaint through existing mechanisms is hampered by lack of access to advocacy (including legal advocacy), lack of resources within complaints-handling bodies, inflexible criteria for the complaints that each type of body may review or a lack of effective internal complaints mechanisms. Prioritising the development of more integrated and comprehensive complaints mechanisms is critical to the integrity and ongoing improvement of service systems. Responses emphasised that people with disabilities would also benefit from clearer promotion of the existing channels through which they can complain and clear accessible explanations of when and how to complain. The establishment of a widely recognised single contact point for legal assistance and referral would provide much easier access for many people with disabilities. Yet the designers of this model should also consider those people with disabilities who do not have independent access to the telephone or web-based information, and who may be uninformed about their rights to make complaints or the need to seek out legal information or assistance. Marginalised people with disabilities will need advocacy support to voice their concerns, make complaints and address legal problems.
Alternative Dispute Resolutions processes present options for less formal and less costly resolution of disputes. However, as the submission of the Australian Federation of Disability Organisations raised, ADR services are not equally accessible to people with disabilities.[9] Furthermore, ADR processes can present risks where one party is substantially weaker in influence or ability to conduct negotiation. Safeguards are crucial to ensure the vulnerable party is protected from being marginalised or pressured into giving concessions or accepting less.[10] Disputants with disabilities should not experience the process as disempowering or intimidating, and should have ready access to independent advocacy services and a range of support options.[11]
Enhancing efficiency in service system development
As the Draft Report recognises, the National Disability Insurance Scheme Act 2013 (NDIS Act) is a policy change that is expected to result in increased demand for legal assistance services.[12] Similarly, growth in the level of unmet demand for advocacy is emerging in NDIS trial sites and elsewhere, as people with disability who are likely eligible for the scheme seek information and support to access their entitlements, and learn decision making skills, enabling greater control and choice over their disability supports.[13] To ensure the scheme develops and functions effectively, the independent advocacy sector must be strengthened.
Ready access to independent advocacy is a fundamentally important design feature of all mature service systems. Social services systems are typically targeted at those consumers most in need of the services offered by the service system. However those most in need of key human services are too often also those most in need of advocacy support and representation in their interaction with that service system, as they face barriers to access arising from their disability or social and economic marginalisation. Without access to adequate support, including from independent disability advocacy agencies, this key target group is less likely to successfully negotiate access, thus undermining uptake and targeting goals of the service system.
Moreover, where access to appropriately structured and resourced independent advocacy organisations is missing, service systems are likely to fail to develop appropriate and robust quality improvement mechanisms because they will be missing a key feedback loop that is available only when independent advocacy organisations are active in providing information and advice about the consumer experience, and ensuring concerns with system functioning and determinations are appropriately addressed and reviewed. Drawing parallels from PricewaterhouseCoopers’ analysis of the economic value of legal aid,[14] advocacy provides direct efficiency benefits to a disability services system, and its associated complaints and review mechanisms, through:
- Increasing ease of services planning through advocates assisting and supporting people with disabilities to identify and articulate their needs, aspirations and concerns
- Identifying, addressing and resolving issues of concern at an early stage (thereby, preventing matters being escalated unnecessarily) and streamlining matters by providing information, education and advice
- Contributing to the efficiency of complaints and dispute resolution procedures by assisting/supporting people to navigate and negotiate complex processes and follow appropriate avenues for resolution or redress
- Developing the self-advocacy skills of people with disabilities and the advocacy and support skills of family, friends, community, which in turn improves the effectiveness of the disability services sector through the engaged and discerning participation of consumers
- Instigating or contributing to positive adjustments and reform to services and processes through systemic advocacy activities
Benefits also accrue to individuals, society and government from the effective human rights outcomes and resolutions of matters that are reached with the assistance of advocates.[15] Advocacy clearly benefits those direct recipients, and, through supporting people with disabilities to have positive social and economic interactions with other people and businesses in their community, benefits businesses, the broader community and the efficiency of various service systems. Though not easily quantified, the social and economic return on investments in independent advocacy funding is significant and should be recognised.
As outlined above, investment in independent advocacy would improve equity and access to justice and contribute to the achievement of lower cost dispute resolution – and would also have flow-on effects in reducing pressures on other service systems. DANA hopes that both the existing and potential contributions of the disability advocacy sector to enabling greater access to justice for people with disabilities will be better represented in the final report.
[1] 11 of 16 respondents to Rights Protection, Justice and Legislation survey of advocates to inform DANA (2014) Progress on the National Disability Strategy 2010-2020: Disability Advocacy Network Australia Engagement.
[2] Italicised, indented paragraphs are quotes from responses to surveys conducted to inform DANA (2014) Progress on the National Disability Strategy 2010-2020: Disability Advocacy Network Australia Engagement.
[3] Productivity Commission, Australian Government (2014) Access to Justice Arrangements – Draft Report, p34. 97, 105, 148-9, 170-171, 272-273, 426, 430, 582-583, 611, 627-632, 663, 854-855.
[4] Productivity Commission, Australian Government (2014) Access to Justice Arrangements – Draft Report, 622-625.
[5] Productivity Commission, Australian Government (2014) Access to Justice Arrangements – Draft Report, p171.
[6] Coumarelos, C., Macourt, D., People, J., McDonald, H.M., Wei, Z., Iriana, R. and Ramsey, S. 2012, Legal Australia-Wide Survey: Legal Need in Australia, August, Law and Justice Foundation of NSW, Sydney. 233.