Inclusion and Diversity Note

14/05/2020

Diversity

Overall, Australia has been fortunate so far in the management of the COVID-19 crisis, and the relatively low number and rate of cases compared to most other countries. But the crisis, and the social distancing measures which have been imposed to manage it, have highlighted some existing concerns or issues around accessibility, flexibility and the promotion of diversity and equality.

Of particular interest to the Bar is the question: what can we learn from this about improving access to justice more generally? One obvious lesson is how the courts and hearings can be made more accessible to those who cannot attend physically. The general skillsets of barristers, court staff and judges in using remote-access technology has improved sharply and significantly. As a consequence, even after the current crisis is over, where such technology can improve access to justice, courts and court users will be more open to its use, and will be in a better position to operate it when it is used.

This has the potential to improve access to justice for those facing constraints in attending court, whether such constraints be geographic, physical or social.

Another lesson concerns equality around family considerations and responsibilities. Research over time indicates that, as a general population, women continue to bear more responsibility for family, children and home than men do. The effects of this can be mitigated to some extent when these responsibilities can be borne by others outside the home or family (such as child-care or the engagement of a cleaner), but anecdotal reports are to the effect that the breakdown of those structures during the COVID-19 crisis has resulted in a significantly greater load on women than on men, again as a general population.

As a broader social question, this highlights the need for policies which not only allow, but encourage, a more equitable sharing of the load within the adults in a family, for example, in the structure of parental leave policies.

In terms of its impact on access to justice: any gendered impact on clients or legal representatives has the capacity to lead to disadvantage and inequity, and indeed, is likely to do so. Building in allowances for home or family responsibilities, whether through greater flexibility or otherwise, can only lead to better outcomes for all. While some initiatives have already commenced in this regard, if they are built upon through necessity during the COVID-19 crisis, there is, once again, the potential after the crisis for greater use of such measures to ensure that a party’s capacity to access justice is not restricted by their gender or that of their legal representatives.

These are just two examples. The key point is: any inequality or disadvantage that can be seen in society is very likely to have an impact upon access to justice as well. To the extent the current crisis leads to a greater capacity to address such inequality and disadvantage, we should learn that lesson, and contribute to better access to justice over time.

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