Fleming, Gabriel --- "Barrier-Free Justice': Access and Equity Service Commitments in Tribunals" [2004] ALRCRefJl 7; (2004) 84 Australian Law Reform Commission Reform Journal 29

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Reform Issue 84 Autumn 2004

This article appeared on pages 29 – 32 & 70 of the original journal.

‘Barrier-Free Justice’: Access and equity service commitments in tribunals

By Gabriel Fleming*

‘Barrier-Free Justice’^[1]

There has been much debate about the need to remove barriers of disadvantage facing participants in our justice system. Less has been said about how this might be accomplished in a practical, systemic and comprehensive way. Tribunals are in an ideal position to meet this challenge, with a different role and function from the adversarial court system. Tribunals also share a common statutory mandate to be fair and just, as well as informal, cost-efficient, flexible, and economical.^[2] In summary, they must ensure that they provide an accessible and equitable dispute resolution forum.

Access to justice is diminished if decision makers do not understand the diversity of the community they serve and the impact of disadvantage upon the parties who appear before them. An accessible tribunal effectively addresses the physical, financial, intellectual, cross-cultural and other barriers that confront those who are entitled to bring a matter to it for determination. An equitable tribunal is fair in its dealings with the parties and in its impartial consideration of the merits of the individual case.

The starting point for tribunals seeking to ensure accessible and equitable service delivery is to consult with current and potential users about their needs. The action needed for each tribunal will vary according to the nature of the organisation and the disputes it resolves, and the unique concerns of its disadvantaged users. There will, for example, likely be different access issues in a tribunal dealing with mental health issues from those in a tribunal dealing with workers’ compensation or discrimination disputes.

Consultation with tribunal users informs the development and articulation of clear and measurable practices and procedures for the removal of barriers to participation. Publicly stating service standards is a risky business, as the tribunal may fall short of achieving them. It is nonetheless an important accountability and credibility measure and statement of tribunal values. Increasingly, the articulation of these standards is an expression of community expectations of the broader justice system and the minimum required to maintain public trust and confidence.

The role of a charter

The development of tribunal charters, setting out service level commitments to removing barriers to justice, has been a long-standing recommendation of the Access to Justice Committee,^[3] supported by the Administrative Review Council (ARC).^[4] It has been on the ‘to do’ list for some tribunals since 1994. The ARC recommended, in 1995, that a charter should be distinguished from other documents central to the administration of a modern tribunal, such as a corporate plan.

“[A] charter should have an external focus and should aim to be a short, plain language statement of what users, taxpayers and the general community can expect from the tribunal.”^[5]

A charter provides a statement of the values and principles of a tribunal and may also encompass detailed practices and procedures to give effect to them. Some tribunals have developed service standards in response to the requirements of anti-discrimination legislation in particular areas,^[6] some encompass access and equity commitments within a general statement of the organisation’s values and legislative objectives^[7] and others have focused on specific issues such as timeliness and language services for non-English speakers.^[8]

Access and equity service commitments may include measures to address a broad range of issues such as community education, translation services, flexible hours of service, language and communications issues for non-English speakers, accessible hearing rooms, accommodating persons with a physical disability, culturally sensitive practices, the needs of Indigenous Australians, and so on.

Case Study: NSW Workers Compensation Commission Access and Equity Service Charter

The New South Wales Workers Compensation Commission is a statutory tribunal with responsibility for the determination of disputes under the Workers Compensation Acts.^[9] In 2002, the first year of its operation, the Commission published its ‘Access and Equity Service Charter’.^[10] The purpose of the Charter is

“to clearly set out the way in which the Commission will meet its objectives of providing an accessible and equitable workers compensation dispute resolution service to all members of the community”.^[11]

Parties to a workers compensation dispute are as diverse as the general community. Approximately 45% of workers compensation claimants in New South Wales were born in a non-English speaking country. Many workers who have a dispute in the Commission are suffering from debilitating physical injuries. For many workers it is also the first time that they have had to engage in the justice system, whereas their counterparts, generally large insurance companies, are experienced and frequent users of the Commission’s services. The challenge facing the Commission is to provide a dispute resolution system that is accessible, fair, timely and cost effective.^[12]

The role of the Charter is, firstly, as an important statement about the values of the Commission. It also:

• provides information to users of the Commission as to the standards they can expect and the assistance that is available;

• establishes a framework for identifying any areas where the Commission needs to improve the accessibility of its service;

• forms the basis for a systematic and regular assessment of the Commission’s access and equity strategies over time; and

• provides an informed basis for the allocation of resources required to maintain the Commission’s commitment to a fair and accessible service.

The Charter addresses four main areas of service commitment namely, ‘Access’, ‘Equity’, ‘Effective Key Relationships’ and ‘Complaints and Appeals’. Within each area it establishes the standards by which the Commission’s achievement of its objectives will be judged, and sets out policies and procedures developed to meet these standards.

The Commission has set the following standards against which access to its services may be assessed:

• financial accessibility to any person who wishes to lodge a workers compensation dispute;

• accessibility to all persons—regardless of level of education, prior knowledge or legal representation;

• physical accessibility to all persons—regardless of factors such as disability, remoteness, or lack of familiarity with the proceedings;

• attentiveness and responsiveness to the needs of all persons—regardless of their cultural background;

• effectiveness in its communication with key persons and organisations, and flexibility and responsiveness to recommendations for improved practice and procedures; and

• responsiveness to all comments, complaints and concerns of all persons with an interest in the work of the Commission.

The Charter then sets out practices, policies and procedures to achieve access standards across the Commission’s services including: providing free dispute resolution, support and assistance for self-represented parties; flexible and appropriate services for people with disabilities; a simple English language and communication policy; free interpreter services in all community languages; staff training to ensure responsiveness to cultural differences; and strategies for servicing rural and regional communities.

The standards against which the Commission’s objective of providing an equitable service is to be assessed include the provision of:

• forum for parties to resolve disputes with proper respect for the parties;

• quality decisions that are fair, consistent and well reasoned;

• flexible procedures that are responsive to the needs of the individual case;

• efficient and timely processes that provide for a just resolution of disputes; and

• effective and accessible procedures for facilitating genuine appeals so that any errors may be quickly addressed.

The practical achievement of these standards involves the implementation of a ‘Code of Conduct for Members of the Commission’ to ensure they deal fairly and respectfully with all parties, plus training in fair, timely and consistent decision making, and the development of differential case flow management practices to move cases to a timely disposition.

The Commission’s Charter sets out the way in which it will develop effective relationships with key users and their representatives. It also outlines the way in which complaints about the Commission’s service will be investigated and resolved. The Workers Compensation Commission’s ‘Access and Equity Service Charter’ is just one example of how public, practical and measurable commitments to removing barriers to justice for tribunal users may be made. The achievement of these commitments requires ongoing vigilance.

Turning rhetoric into outcomes

The promulgation of an access and equity service charter will not achieve its objective if the charter remains a document gathering dust on a tribunal shelf. Removing barriers to justice must be an active, iterative and dynamic process. There are a number of factors necessary to ensure that a tribunal’s statement of commitment has real and practical application. These include:

• support for the principles of access and equity at all levels of the organisation;

• provision of adequate resources to meet service commitments;

• training and education across the organisation;

• continuing consultation with the organisation’s users about their needs;

• tribunal-wide commitment to continuous improvement; and

• evaluation of achievements against stated service commitments.

The development of a tribunal access and equity charter is an important first step, but is clearly not the only step needed to ensure that barriers to justice are removed. Other matters, such as the appointment of members who reflect the community they serve, legislative support for flexible, innovative and non-adversarial procedures and demonstrable commitment from the leadership of the tribunal will be of fundamental importance to the tribunal’s ability to remove barriers to justice.

The ongoing evaluation of tribunal performance is critical to maintaining a relevant and responsive access and equity policy. It has become an increasingly popular management practice for tribunals to conduct ‘customer satisfaction’ surveys^[13] to gain feedback on users’ experiences and perceptions. A recent literature review of surveys of tribunal users’ in the United Kingdom highlighted a number of common issues including: users’ ignorance of their rights to seek a remedy in the tribunal; lack of understanding of the procedures which needed to be followed; cost; the complexity of appeal processes; the absence of appropriate help; barriers to users with physical disabilities; the impact of technology on access; varying levels of informality of procedures; the impact of delay; and the value of representation.^[14]

Monitoring of effective access and equity strategies requires tribunal managers and senior members to commit to continuing consultation and performance review. Sophisticated case management systems assist in this process by way of highlighting issues of delay, dispute outcomes vis a vis factors such as representation, location, use of interpreters, and other key factors.

A ‘tribunal-wide’ approach

The development of a tribunal-wide approach to the articulation of access and equity service commitments is attractive for a number of reasons. It would:

• ensure consistency of approach across tribunals, both federal, state, civil and administrative;

• rationalise the consultative process in terms of asking major interest groups to identify and articulate the specific barriers to justice that confront them;

• be easier to keep relevant and up to date; and

• provide a template upon which newly created tribunals could graft their own particular service commitments.

In Ontario Canada, the peak body, the Society of Ontario Adjudicators and Regulators (SOAR), has adopted the approach of setting out a number of principles and resolutions, which form a framework for individual tribunals to use in developing their own access and equity service plan. The framework includes suggestions for practical actions and a ‘service equity checklist’. SOAR aims to “work with government, advocates, stakeholders and other groups in identifying needs and barriers and developing solutions, including outreach and public education”^[15] to address barriers to justice in the administrative justice system. The SOAR approach recognises the importance of community-based groups representing disadvantaged groups, including health and social service agencies and legal clinics, as links to the administrative justice system.

In the United Kingdom, the Leggatt review of tribunals has recommended the establishment of a ‘Tribunals Service’, which could act as a peak body to guide, coordinate and oversee the development of consistent access and equity strategies in tribunals.^[16]

The development of access and equity service charters by each individual tribunal is a resource intensive exercise. The approach adopted in Ontario and the United Kingdom has benefits for all tribunals. In addition to being cost effective it ensures consistency of approach and clarity of principle across federal and state tribunals of diverse jurisdictions. It also minimises the need to consult with peak community organisations to obtain their input on barriers to justice for their constituents. In setting out the fundamental values and principles of access and equity it provides the framework upon which individual tribunals can craft their own unique service commitments. It would ensure a more comprehensive policy than currently exists in tribunals in Australia.

This task may be a matter that the newly established Council of Australasian Tribunals^[17] can address in its foundation period. The Council aims, inter alia, “to identify common interests of participating tribunals and their members”.^[18]

Ultimately, all tribunals and their users benefit from a clear statement of each tribunal’s commitment to removing barriers to justice for persons who seek a remedy within their jurisdiction. A charter or statement of principles is a good start, with its practical application fully articulated, open to critical feedback and regularly evaluated. This requires an understanding of tribunal users and ongoing consultation as to their particular needs.

Conclusion

Tribunals exist to serve the community who need to use them. To do so they must be accessible and fair. Barriers to justice, whether physical, intellectual, financial, cultural or otherwise, must be recognised and addressed so that tribunals meet their objectives to provide a fair, just, informal, economical, and quick dispute resolution service to the whole community.

As stated at the outset of this paper, the idea of developing a tribunal charter, a statement of general principles and values, or an action plan of access and equity service commitments, is not new. It is time, however, that this matter is given priority. The ongoing credibility of the tribunal system depends on it.

* Dr Gabriel Fleming is the Deputy President of the Workers Compensation Commission of NSW. She has held a number of positions in state and federal tribunals, including the Mental Health Review Tribunal, the Administrative Appeals Tribunal, the Immigration Review Tribunal, the Administrative Decisions Tribunal of NSW and the Fair Trading Tribunal of NSW. Dr Fleming is a member of the NSW Executive of the Australian Institute of Administrative Law.

The opinions expressed are the writer's own.

Endnotes

{1} This term is used in the Society of Ontario Adjudicators and Regulators’ Report of the Service Equity Committee, (1995) published at <www.soar.on.ca>.

{2} This is generally embodied in shared features such as: they are not bound by the rules of evidence, technicalities and legal forms; there are restrictions on legal representation; members have control of the proceedings; low or nil cost to bring proceedings; no costs orders; and a focus on alternative dispute resolution.

{3} Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994), [15.63].

{4} Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals Report No 39 (1995), [5.86–5.88].

{5} Ibid, [5.86].

{6} The Administrative Appeals Tribunal Disability Action Plan is in accordance with the AAT’s obligations under the Disability Discrimination Act 1992 (Cth).

{7} The Administrative Appeals Tribunal Charter sets out a number of organisational commitments including to “provide equitable access to the AAT”.

{8} Consumer Trader and Tenancy Tribunal of NSW Customer Service Standards —this document includes commitments in relation to access and equity service standards such as access to interpreter services.

{9} Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998.

{10} The Access and Equity Service Charter can be found on the Commission website at <www.wcc.nsw.gov.au>. A summary of the Charter is available on the website in Serbian, Turkish, Macedonian, Greek, Chinese and Arabic.

{11} Ibid, 3.

{12} Workplace Injury Management and Workers Compensation Act 1998, s 367.

{13} Immigration Review Tribunal, Annual Report (1996) compared the results of ‘client surveys’ for 1992 and 1995. AGB McNair Pty Ltd, Administrative Appeals Tribunal Client Satisfaction Survey Final Report (1996).

{14} M Adler and J Gulland, Tribunal Users’ Experiences, Perceptions and Expectations: A Literature Review (2003).

{15} Society of Ontario Adjudicators and Regulators, Canada, extracts of the Service Equity Plan and policy are at <www.soar.on.ca/soar-serv_eq_pol.htm>.

{16} A Leggatt, Tribunals for Users—One System One Service (2001) available at <www.tribunals-review.org.uk/ leggatthtm/leg-00.htm>.

{17} The Council of Australasian Tribunals was formed in June 2002. State Chapters have been formed in NSW, Queensland and Victoria.

{18} <www.coat.gov.au>.