Howard's End: Representing Oneself

No lawyer, no worries, as judges seek a fair go for those who got it alone. While judges in New Zealand are being publicly criticised, judges in Australia are being publicly applauded and our Justice Minister Phil Goff should listen-up. Maree Howard writes.

The cost of lawyers and severe cuts in the availability of legal aid has meant that more people in Australia are now conducting their own cases.

The numbers are worrying in all jurisdictions - 40 percent in the Family Court, 47 percent in local courts, 31 percent in the Federal Court, 28 percent in the High Court - and policy makers, social welfare agencies, senior judges and lawyers have all complained about the trend.

But the Chief Justice of Australia's Family Court is now ready to throw a lifeline to self-represented people by loosening the rules of evidence and broadening the role of judges.

Justice Alastair Nicholson said last week that because " the crazy inability to present a case" might lead to an injustice, judges had to step in.

"The judge has to play a greater role, a more inquisitorial role," he said.

While acknowledging it was a threat to neutrality, Justice Nicholson said a judge's responsibility was to conduct a fair trial.

"If, in ensuring that there is a fair trial, the judge has to give assistance to someone, then so be it," Justice Nicholson said.

Research by the Australian Law Reform Commission found that more than half of those who represented themselves were unable to pay for a lawyer, had been refused legal aid or had exhausted their legal aid grant.

The same research found that fewer people expected to qualify for legal aid and so did not even apply. At the same time, the number of lawyers prepared to take legal aid cases had fallen.

This is presenting serious problems for judges when people who cannot afford to pay for a lawyer come up against the financial powers of the State and its bureaucracy or against people who can afford to pay.

The judges say that justice must not only be done, it must be seen to be done.

An inquiry by Judge John Faulks in Canberra, has already broached changes including clearer and easier to complete legal documents, better information pamphlets, computer booths in Courts and an inter-active website for the self-represented.

A further inquiry is also underway sponsored by the Law Society of NSW.

To help shed light on the difficulties of people representing themselves, Justice Nicholson agreed to allow the ABC television network to make a documentary which will show a custody dispute over a two-year-old toddler whose mother is unrepresented in court while up against a top barrister paid for by the paternal grandparents.

As the case is played-out, Justice Robbie Flohm of ther Family Court in NSW, deals with the problem of getting necessary evidence on to the court record without compromising her impartiality.

Several times in the documentary Justice Flohm steps out of her role as a judge to elicit evidence, explain court procedure and encourage the mother to tell her story without feeling intimidated.

Since TVNZ now has a charter for more locally grown programmes the idea also seems worthwhile here.

New Zealand has a Bill of Rights Act (1990) which provides for fundamental rights of the person.

A case of, say, a breach of the obligation to uphold a right to natural justice by a bureaucrat, will cost you up to $5,000 in lawyers fees just to research and prepare the case - and that's without paying the lawyer to argue the case in court for you.

I hope there will be hundreds of people in New Zealand who now decide to take their cases to court themselves.

As one senior justice said recently when commenting on the low number of cases coming before the courts under the New Zealand Bill of Rights Act, " It's not that there are no breaches of the Bill of Rights Act, it's just that people don't know of their rights or cannot afford to enforce them."

If it takes an overload of our court system from people representing themselves to get necessary changes, then in the words of Australian Family Court Chief Justice Alastair Nicholson; " so be it."

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