Brewer, Marion --- "Looking west" [1998] ALRCRefJl 30; (1998) 73 Australian Law Reform Commission Reform Journal 56

• Reform Issue 73 Spring 1998

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Reform Issue 73 Spring 1998

This article appeared on pages 56 – 57 of the original journal.

Looking West

By Marion Brewer*

Following the Commonwealth’s reference to the Australian Law Reform Commission (ALRC) for a review of the adversarial system of litigation, Western Australia’s Attorney General gave his state’s Law Reform Commission a similar, but broader brief in September 1997.

A year later, the Law Reform Commission of Western Australia (LRCWA) has a magnum opus in production with an April 1999 deadline for a report in connection with its review of that State’s criminal and civil justice system.

The WA Law Reform Commission’s review of the state’s criminal and civil justice system is the broadest - and most challenging - reference it has received in its 30-year history. The LRCWA has a mandate to make recommendations for change which will make the justice system more accessible, less complex, faster and less expensive.

The areas of similarity between the ALRC and the LRCWA reviews include one of the most fundamental issues of justice: the need for a simpler, cheaper, more accessible system that people can understand. In this regard, the civil aspects of the review are substantially the same. The touchstones for the WA review are Lord Woolf’s conclusions in his final report on access to justice.¹ A justice system must be just, fair, comprehensible, certain and reasonably expeditious. Justice should not take too long nor cost too much. The system must respond to the needs of those who use it and to be effective it must be adequately resourced. Because these considerations apply equally to criminal and civil matters, the WA Commission also has the opportunity to consider the issues in the criminal context.

In some areas there is an overlap between the civil and criminal justice systems - the role of the legal profession, technology and appellate court processes. The approach being taken by the WA Commission is not one of ‘reinventing the wheel’ but rather the Commissioners are reviewing the previous work of others in WA and elsewhere. Reforms which reduce expense, delay and complexity will not be acceptable if the new structure is not fundamentally fair. The challenge is to identify reforms that can be made while maintaining a just system.

“It seemed to me the time for merely looking at the system as it is, is gone. It’s a matter of looking at what we want to achieve both in civil and criminal justice and starting with those basic precepts in order to find out what we should do ... The main reason for the review is access to justice.
“A justice system you can’t afford, which takes too long, is not a justice system. I think people must be able to have access to the system; they must be able to afford it; and, they must be able to get a decision within a reasonable time.
“I don’t necessarily want to have a cheaper system so that people can go and fight each other through the courts. I think that might be counterproductive. I want to have the capacity to resolve disputes within society in a sensible manner that doesn’t turn us into a massively litigious society.”
- WA Attorney-General Peter Foss

The WA Commission is not considering family law matters, in light of the specific charge to the ALRC to review the advantages and disadvantages of the present adversarial system in Family Court proceedings. Nevertheless, the LRCWA has received a number of submissions raising concerns about Family Court matters. These primarily concerned Western Australians in country areas who found themselves forced to instruct Perth counsel to deal adequately with family law matters. Significant access to justice issues arise for Western Australians residing outside the only metropolitan area in the western half of Australia. These submissions have been forwarded to the ALRC.

Reaching the public

The Commission has produced an issues paper, which attempts to explain - in plain English - matters being considered as part of the reference. While some members of the legal profession criticised the issues paper for being overly simplistic, ordinary citizens and a number of school teachers around the state indicated they found it helped to demystify court procedures and the justice system. However, one of the most interesting aspects of the Western Australian review has been the extent of its public outreach campaign.

Starting with the premise that the justice system belongs to the people, the Commission scheduled a series of public meetings around the state. Eight public meetings brought the three members of the Commission - Wayne Martin, QC; Murdoch University School of Law Dean, Professor Ralph Simmonds; and WA Crown Counsel Robert Cock, QC - face to face with Western Australians. Many people who attended the meetings were angry and eager to speak out concerning their experiences with the legal system. The series of winter 1998 meetings found members of the Commission travelling from Perth to Karratha, Kalgoorlie, Bunbury, Geraldton and Albany. The Commission also organised an hour long program over the Westlink Satellite network, to provide people in isolated rural areas with an opportunity to provide comments directly to the Commission using a toll-free telephone number.

In Perth, 200 people attended an evening meeting held in July. Attendance at the Perth meeting was boosted by a dramatically publicised crime wave, in which a number of senior citizens were bashed and robbed. While recognising that many of the oral submissions received were not directly related to the terms of reference, the Commission found it was able to provide a forum which was welcomed by the public.

The Commission has also worked with the Law Society of WA to organise meetings with members of the legal profession, and members of the Commission met with judicial officers on request.

* Marion Brewer is the Administrative Officer for the Law Reform Commission of WA.

Further information on the WA review, including the full terms of reference, is available on the Commission’s website: http://www.wa.gov.au/lrc/

Endnotes

1. Lord Woolf Access to Justice - Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO London 1996