My Learned Friend was founded as a social enterprise to help solve the access to justice problem. But what exactly is the problem?

What does access to justice mean?

The rule of law is a fundamental right. It means everyone is accountable to the law, the law is applied equally to everyone, and nobody is above the law.

The corollary of being accountable to the law is that the law must be accessible and understandable. All of us in a functioning democratic society should be able to find out what the law is, understand what it says and how it impacts our lives. We also need to know what to do when things go wrong.

Access to justice means different things to different people. Some people talk about it broadly, some use it as shorthand to refer to access to civil justice (as opposed to criminal justice), while others regard it as an issue more relevant to accessing the courts.

In our view, access to justice encompasses everything a person might do when faced with a legal problem; from identification to mitigation, resolution and prevention. This recognises that a person’s pathway through the legal system can be many and varied, and that not all legal disputes resolve through the courts system.

The access to justice problem

In Aotearoa New Zealand, between 40 to 63% of people experience a legal problem within a two-year period. Many of these people:

• don’t qualify for legal aid;

• can’t afford a lawyer; and/or

• find it difficult to navigate our complex legal system.

In the 2023 Briefing to the Incoming Minister, the Ministry of Justice described some of the other significant barriers to accessing justice: "... timeliness of services, a lack of appropriate or available services (for example, culturally appropriate services, or services that accommodate disabled people), and difficulty in accessing services (due to factors such as living rurally)."

As explained in the Chief Justice's 2023 Memorandum to the Incoming Attorney-General, "[t]here is a significant “justice gap” in civil justice. Many people are unaware they have a legal problem, and if they are, how to solve it."

Collectively, these issues comprise the access to justice problem.

How are the legal profession and justice sector responding?

Reducing costs

Reducing costs and providing pro bono legal services is a consistent focus area for legal practitioners.

In 2021, a survey by the New Zealand Law Society found that 59% of lawyers provided discounted rate or reduced fee legal assistance in the preceding 12 months. And 81% provided some form of free legal assistance.

Unfortunately, the main barriers to providing more of this kind of assistance were heavy workload and lack of time. Lawyers are busy. The Law Society reported 79% of lawyers say they regularly extend their work hours and 50% of lawyers in 2021 had to turn clients away.

Legal Aid

One might assume the legal aid system is the answer, but the eligibility criteria are such that only low-paid workers, beneficiaries and those in custody are likely to qualify. Further complicating matters is that legal aid is considered a loan and some or all of it may need to be paid back.

Legal aid lawyers are also very busy. Of the 3,011 approved legal aid providers in 2021, 75% had to turn clients away. And 24% said they intended to do less legal aid work in 2022, primarily due to inadequate remuneration.

Justice sector interventions

The Secretary for Justice and the Chief Justice hosted a civil access to justice workshop in 2020. They heard the system needs to be more user-focussed and that better data is needed about those who use it. This work culminated in a national strategy, Wayfinding for Civil Justice, to guide how stakeholders work together to improve access to civil justice in Aotearoa New Zealand.

We welcome this collaborative approach and the eventual establishment of a National Civil Justice Observatory to bring together diverse voices across the sector to tackle this complex problem and improve access to justice.

Other work

The depth and breadth of the ongoing work to address the access to justice problem is far too great to be adequately summarised in this short article, but it is important to acknowledge the work of other stakeholders across the justice system and legal profession, including the Rules Committee, the NZ Bar Association, Community Law Centres and Citizens Advice Bureaus across the country, and grantees of philanthropic organisations like the Borrin Foundation.

So, what now?

Plainly, we have a real problem on our hands, but there is concerted effort by many people to find and test solutions. Indeed, the Law Society produced an excellent resource taking stock of the access to justice initiatives in place in 2020.  As that report shows, there is no silver bullet here. And it's important to note that while there has been considerable focus on the civil justice system, the criminal justice system has its issues too.

The key themes that emerge as barriers for the legal profession in meeting the demand for reduced fee or free legal assistance are lack of time, high workloads and inadequate remuneration.

We think we can help. We're excited to share more soon.

Disclaimer: This article is for general information purposes only and is not legal advice.

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