Difficulties Faced in the Civil Justice System (VCE SSCE Legal Studies): Revision Notes

Difficulties Faced in the Civil Justice System

While the civil justice system is straightforward for legal professionals like judges and lawyers who regularly work within it, many members of the public find it confusing, overwhelming and expensive to navigate. Some groups face particular barriers when trying to access civil justice.

This note examines four groups that experience significant difficulties in the civil justice system:

• First Nations people
• People of low socioeconomic status
• Young people
• People in regional, rural and remote areas

Understanding these difficulties is important because they affect whether people can enforce their rights and obtain remedies when wrongs occur.

First Nations people

Who are First Nations people?

First Nations people are the first peoples of Australia, having lived here for at least 65,000 years. The term recognizes Aboriginal and Torres Strait Islander people as the sovereign people of this land. Other acceptable terms include First Peoples and Koori (which describes Aboriginal people of south-east Australia, including Victoria, New South Wales and parts of Tasmania).

Language is central to Aboriginal culture. Victoria has an estimated 39 Aboriginal and Torres Strait Islander languages and 11 language families. Aboriginal English refers to varieties of English used by First Nations people in Australia, with different grammar, pronunciation and vocabulary compared to Australian English. Approximately 80% of First Nations people use Aboriginal English as their first language.

Why First Nations people need access to civil justice

First Nations Victorians may need to access the civil justice system for various reasons, including:

• Protecting consumer and tenancy rights
• Fighting against injustices and discrimination
• Addressing breaches of human rights
• Resolving disputes regarding rent and eviction

The Law Council of Australia's Justice Project (2018) noted that First Nations children were being removed from homes at disproportionate rates, and many First Nations people experience racism and discrimination in rental accommodation and employment.

Distrust in the justice system

Many First Nations people experience a fundamental distrust of the justice system or are unwilling to engage with it. This barrier stems from historical and ongoing experiences of injustice.

First Nations people have faced denial of rights, unfair policies and practices, cultural violations, and exclusion from economic, social and political life. This creates ongoing distrust and lack of confidence in the justice system.

Examples of traumatic events include:

• The compulsory removal of First Nations children from their families (the Stolen Generations)
• Dispossession of land and culture
• Ongoing racism and discrimination

As a result, some First Nations people do not view courts or tribunals as safe places to resolve problems. They may avoid all contact with the justice system, meaning legal problems remain unresolved and they are left without remedies for wrongs committed against them.

Language differences

Communication barriers arise because many First Nations people do not speak English as their first language. They may use Aboriginal English or an Aboriginal language, and employ different communication methods:

• Respect is shown differently: Elders and respected older people are called 'Aunty' or 'Uncle' (even when not related by blood)
• Silence is valued: Listeners have the right to ignore who is speaking, and some First Nations people avoid eye contact (which some regard as threatening)
• Storytelling is preferred: Many prefer explaining events through storytelling rather than answering direct questions
• Cultural sensitivity around death: It is generally inappropriate to refer to deceased people or show their photos, as this can be distressing

These language differences create problems when judges, magistrates or lawyers are not culturally trained. Even when interpreters are available, there is limited access to adequately trained interpreters who understand both the language and cultural context.

Cultural differences

Aboriginal customary law resolves disputes differently to the civil justice system. The formal civil justice system may clash with customary law regarding how issues are resolved and what outcomes are appropriate. Some First Nations people view civil justice system rules and processes as rigid and inflexible.

Important cultural practices that may not be factored into the civil justice system include:

• Elder authority: Aboriginal Elders are highly respected community members who maintain culture and traditions, demonstrate leadership, and have skills in resolving conflicts
• Family and kinship ties: Strong family networks mean that deaths or illness in the family take utmost priority, and nurturing family relationships is considered fundamental
• Connection to land and spirituality: First Nations people have strong connections to Country and deep respect for spirituality

Addressing difficulties for First Nations people

The civil justice system has implemented several measures to address these barriers:

Dedicated legal services: The Victorian Aboriginal Legal Service (VALS) is a government-funded organization providing legal services, advice and representation for First Nations people in family, civil and criminal matters. However, VALS reports that funding has not kept pace with demand, stretching their services thin.

Cultural competence training: Courts and tribunals provide ongoing cultural competence training for personnel, informed and led by First Nations people. This helps First Nations people engage with the justice system more comfortably. Training forms part of larger plans by courts and VCAT to demonstrate commitment to an inclusive environment.

Culturally appropriate spaces: VCAT has taken active steps to make its tribunal more accessible by:

• Increasing the number of Koori staff
• Establishing a Koori Support Team
• Creating Koori Hearing Rooms that have been 'smoked' (an ancient ritual involving smouldering native plants)
• Including Aboriginal flags, artwork and possum-skin cloaks in hearing rooms
• Providing spaces where First Nations people can feel more comfortable

People of low socioeconomic status

Who are people of low socioeconomic status?

People of low socioeconomic status (SES) are those experiencing economic disadvantage, with little income or wealth. This group includes:

• Homeless people
• Long-term prisoners
• Unemployed people
• Young people
• People with long-term health conditions or disabilities who cannot work

People of low SES face similar legal problems to others (disputes with neighbors, landlords, employers or service providers) but may also experience problems related to their economic status, such as credit or debt issues, housing problems, homelessness, and mental health challenges. These issues often overlap with other needs relating to health, substance use, housing and employment.

Inability to access legal services

The primary difficulty for people of low SES is their inability to afford legal representation. This creates a significant barrier to pursuing or defending civil claims.

Beyond legal fees, additional costs include:

• Court or tribunal filing fees
• Hearing fees
• Mediation fees
• Photocopy and administrative fees

Victoria Legal Aid (VLA) and community legal centres (CLCs) provide free legal advice, information and representation to people who cannot afford lawyers and who are vulnerable. However, these services face limitations:

• Limited funding and stretched resources
• Significant legal aid funding goes to criminal and family law matters rather than civil disputes
• Many people fall through the gaps, either having to represent themselves or not pursuing claims at all

Lack of understanding

People of low SES may face particular challenges understanding the legal system and the law. While most Australians find the legal system difficult to navigate, some people of low SES find this especially challenging if they:

• Have been denied opportunities to develop English or literacy skills
• Have long-term intellectual disabilities
• Lack education about legal processes

This lack of understanding creates multiple problems:

• Difficulty pursuing legal claims or remedies
• Distrust in the legal system and its ability to achieve justice
• Extreme stress when attempting to self-represent
• Inability to assert or defend rights effectively due to inadequate literacy skills

Addressing difficulties for people of low SES

Several measures help address barriers faced by people of low socioeconomic status:

Assistance for self-represented parties: Courts and tribunals provide as much assistance as possible to self-represented litigants:

• The County Court and Supreme Court have dedicated self-represented litigant sections on their websites
• The Supreme Court has a self-represented litigant coordinator to guide people through procedures
• Judges and magistrates have a duty to assist self-represented parties with understanding processes and rights (though they cannot advocate for the party)

Restricted use of lawyers at VCAT: VCAT does not allow legal representation unless parties have permission. This creates more equal footing between parties, avoiding situations where one party has professional representation and the other faces a significant disadvantage.

Fee waivers: All courts and tribunals offer fee waiver applications. If a person experiences financial hardship, they may be eligible for a fee waiver or reduction, eliminating costs like hearing fees and filing fees.

Young people

Who are young people?

The term 'young people' is not defined in legislation but generally describes people under 25 years of age, including children. A 'child' in Victoria is a person under 18 years old. Therefore, 'young people' can include young children, teenagers, and young adults who are working or studying.

Why young people need access to civil justice

Young people often face civil law issues related to their age and life circumstances, including:

• Contract disputes
• Debt problems
• Breaches of their rights
• Transport accidents
• Tenancy or housing problems
• Homelessness (for at-risk young people)

These issues can be complex and require legal intervention to resolve properly.

Age-related communication barriers

Young people face significant difficulties participating in the civil justice system because they may not have developed the communication skills necessary to understand legal processes involved in civil actions.

Specific communication challenges include:

• Complex legal language: Young people may struggle to understand formal language and complex legal terminology used in adult-oriented court environments
• Lack of confidence: They may not have developed necessary oral skills or confidence to discuss and present their case, give evidence, or question witnesses
• Stress and anxiety: The court environment can be particularly intimidating for young people, affecting their ability to participate effectively

These barriers may deter young people from undertaking civil actions, or they may risk losing cases because they cannot effectively navigate the communication demands of the legal system.

Lack of knowledge about the legal system

Young people often have limited knowledge about several critical areas:

• Their legal rights and obligations
• Whether a dispute has actually arisen that requires legal action
• The methods and institutions available to help resolve disputes
• Possible remedies they can seek, or that may be sought against them

Without understanding these processes, young people often do not take action on legal problems. This means that without guidance from parents, guardians, or representative organizations (such as unions representing workers), legal problems may remain unresolved.

Lack of resources

Young people typically lack the resources (especially financial resources) needed to pursue or defend civil claims. They often must rely on:

• Free legal assistance
• Free dispute resolution bodies
• Loans from friends or family members

Beyond financial resources, some young people may lack access to:

• Technology for researching how to get assistance
• Family or friend support networks
• Personal resources such as life skills and experience needed to navigate civil claims

Addressing difficulties for young people

The civil justice system has implemented several measures to assist young people:

Specialized legal centers: YouthLaw is a dedicated community legal centre for young people under 25 in Victoria. It assists with common issues including:

• Complaints arising from unfair workplace or rental treatment
• Car accidents
• Debts
• Discrimination

YouthLaw provides legal advice and court representation for young people most in need.

Simplified language and processes: Courts and tribunals generally use less formal and complex language when dealing with cases involving young people. They may explain what is happening during the legal process and clarify young people's legal rights. This helps young people feel less intimidated and enables them to participate more effectively.

Education and information: Various organizations provide young people with information about their legal rights and obligations. For example, the Victorian Equal Opportunity and Human Rights Commission has dedicated resources explaining young people's rights, including their right to be free from discrimination.

People in regional, rural and remote areas

Defining regional, rural and remote areas

The Law Council of Australia estimates approximately 7 million people (around 29% of Australia's population) live outside major cities. The term 'regional, rural and remote' (RRR) refers to all areas of Australia outside capital cities (metropolitan areas).

RRR areas are diverse and dynamic, with agriculture and small businesses being common features. Some RRR areas face challenges including poor technological access and declining populations.

Why people in RRR areas need civil justice

People in RRR areas face similar legal issues to those in metropolitan areas:

• Housing disputes
• Debt problems
• Rights and discrimination issues

However, they may also face specific and complex civil disputes unique to their location:

• Water rights allocation
• Environment and planning restrictions
• Property laws
• Agriculture and zoning laws

These specialized issues require legal expertise that may not be readily available locally.

Lack of access to legal services

The primary difficulty for people in RRR areas is the shortage of lawyers practicing outside cities. The Law Council of Australia's 2018 Justice Project report indicated that only 10.5% of Australian lawyers were practicing in country or rural areas in 2016.

This shortage creates several problems:

No local lawyers: In some parts of Victoria, there may be no lawyers practicing in the area at all, forcing people to travel significant distances or forgo legal assistance entirely.

Conflict of interest: When there is only one local lawyer, they cannot represent both parties in a dispute. For example, if two parties in the same town have a dispute about water access and there is only one local lawyer, that lawyer can only represent one party—leaving the other without local representation.

Lack of expertise: Even when lawyers practice locally, they may not have relevant expertise in the specific civil dispute the person faces. Specialized areas like agricultural law or water rights may require expert knowledge not available in smaller communities.

Lack of access to technology

While digital access is improving in Australia, people in RRR areas (especially remote areas) may have limited access to technology including phone and internet services.

The Justice Project report noted that some people in remote areas have:

• Poor quality internet connections
• Limited telephone coverage
• No power or internet access at all (in the most remote parts of Victoria)

This technological gap means people cannot:

• Access legal information or advice online
• Attend virtual hearings or mediations
• Communicate efficiently with lawyers or courts via email

When online access is unavailable, people in RRR areas must rely on:

• Physical attendance at courts or legal service providers
• 'Paper mail' rather than email for communication
• Travel to access services

Lack of access to courts

People in RRR areas have more limited access to courts and tribunals. While most courts have venues in regional areas like Geelong and Bendigo, they generally do not sit in rural or remote areas.

This geographical barrier means:

• Long-distance travel: People must travel significant distances to attend court or tribunal hearings
• Transport challenges: Some people lack cars and must rely on public transport, which may not be readily accessible in rural and remote areas
• Additional costs: Travel requires spending money on petrol, overnight accommodation, and childcare

Court infrastructure problems: In 2023, reports indicated that some Victoria regional courts are in disrepair, described as 'unfit for purpose'. Run-down or poorly planned courts impact access to justice through:

• Limited technology for enabling online hearings
• Insufficient rooms or areas for court workers
• Poor layouts causing inefficiencies and delays
• Negative perceptions of the justice system

Addressing difficulties for people in RRR areas

The civil justice system has implemented several measures to assist people in regional, rural and remote areas:

Encouraging lawyers to practice in RRR areas: Various organizations promote the importance of legal work in RRR areas. The Law Council of Australia operates a dedicated website (RRR Law) as a central information hub. The Castan Centre for Human Rights Law encourages people to consider working 'in the bush', highlighting the significant contributions lawyers can make in these communities.

Online information and dispute resolution: There has been increased availability of online services to improve accessibility and reduce the need for physical attendance:

• VCAT offers online mediations and hearings
• Many courts provide online hearing options
• VLA and many CLCs provide online advice and assistance

These digital options help overcome geographical barriers, though they depend on adequate internet access.

Exam guidance

When analyzing difficulties in the civil justice system, examiners expect you to:

Identify specific barriers: Don't just state that a group faces difficulties—explain the specific nature of those difficulties. For example, don't just say "First Nations people face language barriers"; explain that Aboriginal English and Aboriginal languages differ from standard English, and that communication methods (such as storytelling, silence, and avoiding eye contact) may not be understood by legal personnel.

Explain the impact: Connect each difficulty to its practical consequences. For example, explain how lack of legal representation forces people to self-represent, which increases stress, reduces chances of success, and may discourage people from pursuing legitimate claims.

Evaluate solutions: When asked to assess how well difficulties are addressed, consider both strengths and limitations. For example, while VALS provides culturally appropriate legal services for First Nations people, funding has not kept pace with demand—so the solution is partial rather than complete.

Use examples: Reference real cases and scenarios (like the McDonald's wage dispute or Soula's housing case) to illustrate how difficulties affect real people and how solutions work in practice.

Make connections: Link difficulties across different groups. For example, both people of low SES and young people may lack resources; both First Nations people and people in RRR areas may face cultural misunderstandings or geographical isolation from services.