Access to Justice for Discrimination Complainants: Courts and Legal Representation

In the terms of Marc Galanter’s classic article, ‘Why the “Haves” Come Out Ahead’, people making complaints of discrimination are typically ‘one shotters’ who have little or no prior contact with the legal system and who are deeply invested - both emotionally and financially - in the outcome of their case. They tend to have limited financial resources, may be members of ethnic minorities with limited English language abilities or have a disability that affects their capacity to function effectively within the legal system, and may experience social exclusion that both contributes to and exacerbates the discriminatory treatment they allege. Those complaining of discrimination in employment may have access to assistance from a trade union, but those complaining in other areas (such as education, provision of goods and services, accommodation, and racial vilification) do not. By comparison, respondents to discrimination complaints are generally better resourced, even as individuals or small business owners, often have access to assistance from an employer or industry organisation, and, in the case of businesses, can claim a tax deduction for legal fees. Some respondents are large corporations and public sector entities which are, in Galanter’s terms, ‘repeat players’ in the jurisdiction. They may be the subject of a number of complaints over time, and are sufficiently disinterested and have sufficiently deep pockets to be able to ‘play for rules’, settling or litigating cases strategically in order to create precedents that are favourable to their interests.There are several ways in which the power and resource imbalances between discrimination complainants and respondents may be mitigated so as to produce at least a more level playing field. These include alternative dispute resolution, representation or other forms of assistance for complainants by a specialist agency concerned with enforcing anti-discrimination legislation, adjudication of complaints in an inquisitorial or informal tribunal, and free or low-cost legal representation for complainants. The first of these options - alternative dispute resolution - is relatively low cost, limits the advantage enjoyed by respondents in litigation, and may enable complainants to achieve outcomes not available through adjudication, but it is not immune to power and resource disparities, as pressures to settle fall more heavily on the individual with the most to lose. It also cannot provide a complete answer to the question of access to justice for complainants, as some level of litigation must inevitably occur where matters genuinely cannot be resolved between the parties (a 100 per cent settlement rate would indicate excessive pressures to settle). Indeed, some level of litigation is desirable in the public interest in discrimination cases, in order to establish precedents that will assist future settlement, to achieve outcomes going beyond the interests of an individual complainant, and to publicise the legislation so that it can both empower potential future complainants and deter potential future discriminators.The second option - agency assistance - seeks to counter the deep pocket/repeat player advantage enjoyed by some respondents by introducing a reasonably well resourced repeat player on the side of complainants, which can also act strategically and play for rules. This form of assistance is available in several overseas jurisdictions, including Britain, the United States, and some Canadian jurisdictions. The British Equality and Human Rights Commission, for example, does not have formal dispute resolution functions, but is charged with promoting equality and human rights in various ways, which may include both intervening in existing proceedings, and directly supporting strategic cases in tribunals and courts. This option is important for the pursuit of test cases and cases with the potential to have a wider impact, but will not cover all meritorious claims that deserve a hearing.The third option - an active, enabling and/or inquisitorial tribunal - seeks to counter the resource and procedural advantages enjoyed by respondents and their legal representatives by making the hearing process accessible to and negotiable by self-representing litigants. This is the theory, for example, behind the employment tribunal system in England and Wales, where legal aid is unavailable for tribunal representation. Although earlier English studies found that in practice, the chances of success for discrimination and other employment tribunal claimants increased with legal representation, while self-represented litigants were disadvantaged, more recent studies suggest that employment tribunals do in fact operate more inquisitorially than adversarially and assist unrepresented claimants reasonably effectively, with the result that success is no longer strongly correlated to the presence of legal representation.The fourth option - free or low cost legal representation - assumes that legal representation is necessary, but finds ways to overcome disparities in the ability to afford representation by reducing or eliminating the cost of representation for complainants. There are a variety of ways in which this might be done, including legal aid, generalist and specialist Community Legal Centres (‘CLCs’), pro bono schemes, and conditional fee arrangements, which are discussed further below.The four options should be seen as complementary rather than mutually exclusive. Although tribunal assistance and legal representation may be considered as alternatives, there is evidence to suggest that some kinds of difficulties experienced by unrepresented litigants, such as the production of inadequate evidence and communication difficulties, cannot necessarily be overcome even by the assistance of an informal, inquisitorial tribunal, and can really only be addressed by means of legal representation.8 This article discusses the choices made in the configuration of the Australian federal hearing system for discrimination complaints and the effect of those choices on complainants. It concludes that discrimination complainants currently lack access to justice in the Australian federal system and considers what would be required in order to remedy the situation.

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