The feasibility of achieving fair and effective access to law in the Australian welfare state : the lessons of revisiting the post-war experience of legal aid

Abstract

In the 1970s Australia, like a number of comparable countries, reorganised the provision of legal aid. Within a few years, however, new 'problems' had emerged in 'access to justice'. In 1993, the Federal Government responded by charging a committee to identify 'solutions', some of whi£h were adopted in mid-199 5. Yet, the 'problems' of 'access to justice', and access to law, remain. This thesis considers whether these problems are capable of resolution. It begins by posing a general question: is fair and effective access to hiw a feasible expectation of citizens or governments in the Australian welfare state? In addressing this question, the thesis takes a 1990 official report into the problems facing legal aid in Australia as its starting point. This report left a legacy of unanswered questions. In retrospect, moreover, its questions highlighted the ongoing social significance of the problems in access to law for governments, business and citizens in post-war Australian society. The opening contention is that revisiting the origins and significance of the post-war experience of legal aid holds the key to determining the feasibility of achieving fair and effective access to law. The thesis nominates two major justifications in support of this contention. First, it asserts that revisiting the post-war experience will improve our understanding of 'why' Australia acted to enhance access to legal aid in the 1970s. Secondly, the thesis asserts that improving our understanding of the legal aid response will improve our capacity to understand the 'access to justice' response, and thereby the feasibility of any future reforms towards fair and effective access to law. Part I begins by explaining the history behind the national legal aid scheme, the reasons why it emerged in 1973-76 and its ideological context in modem Australian society. In doing so, it answers some of the unanswered questions of the 1990 report. However, Part II also demonstrates the limitations of institutional and ideological history in explaining the post-war experience, concluding that 'missing' parts of the story remain to be told. Thus, Part II begins by revisiting - in a crossnational context - the existing ideas which explain the post-war experience. It develops an alternative theory of the origins and significance of modem legal aid, which it proceeds to apply in revisiting - in the context of the Western world - the origins and significance of its post-war development. Part III proceeds to demonstrate 'why' and 'how' the lessons of revisiting the postwar experience enable us to better assess the feasibility of achieving fair and effective access to law. It begins by applying the insights, 'benchmarks' and analytical methodology of Part II to reconsider the origins of the new 'problems' in 'access to justice', the jettisoning of the legal aid response and the significance of the 1993 'access to justice' response. Part III concludes by briefly considering the implications of the thesis for the feasibility of achieving fair and effective access to law in the contemporary Australian welfare state