Summary

The findings in this volume build on those reported in Volume 1. This world-first report on legal capability provides a starting point to better understand what is needed for people to achieve fair outcomes for issues in our lives which might have a legal solution, what are known as justiciable problems.

In this volume, we introduce the concept of legal capability and report on levels of -

  • understanding of rights and responsibilities
  • confidence in being able to get fair resolution of justiciable problems
  • practical legal literacy relating to the ability to obtain, understand and navigate information and services needed to deal with everyday justiciable problems
  • perceptions of the relevance of law and how people see it in their everyday lives
  • perceptions of the accessibility of lawyers
  • trust in lawyers
  • digital capability for legal type tasks.

The PULS is the most significant effort to quantify legal capability to date and provides unprecedented insight into levels and patterns in Victoria, and importantly the relationships between the various aspects of legal capability. The relationships and dependencies will be further explored in Volume 3 of the PULS.

The data show variable levels of legal capability, unequal distribution of elements of it, and clear links to disadvantage. The findings put inequality of capability alongside inequality of legal need and problem experience as set out in Volume 1, adding another layer of inequality in access to justice.

This report will help build a better understanding of legal capability in the community, and where policy and practice can be tailored to meet the strengths and deficits in the community. The findings, together with Volumes 1 and 3 of the PULS will help reshape and optimise limited resources services, and ultimately democratise justice.

What we looked at

The findings in Volume 2 are the first cut of a very rich dataset looking at both the diversity of capability in the population and the range of problem types.

The analysis in the report looks at key areas explored through the questionnaire in the survey and reveals some notable insights set out below.

Much more is to be found in the report, and Volume 3 will expand significantly on these findings.

Knowledge of rights

Most Victorians have a reasonable level of legal knowledge, but a significant percentage do not – particularly certain groups

PULS respondents were asked 15 questions to test their knowledge of legal rights across a range of civil law areas relevant in everyday life.

While the PULS indicates relatively high levels of legal knowledge, people are nevertheless frequently ignorant of the law concerning everyday justiciable problems. While many appreciate the relevance of law to such problems, many do not.

Groups where there were relevant variations

  • younger people
  • main language spoken at home was not English
  • people experiencing financial distress.
Legal confidence

Confidence in dealing with legal issues varied considerably, changing with problem severity, problem type and social patterning.

PULS respondents were asked six questions to assess their level of confidence in being able to ‘achieve an outcome that is fair, and [they] would be happy with’.

People are generally confident they can arrive at fair outcomes to justiciable problems, provided they do not escalate.

A majority (63%) of PULS respondents reported being confident in being able to achieve a fair outcome that they would be happy with, for a legal dispute involving substantial disagreement. However, just 26% were similarly confident when such a dispute was described as going to court, with a barrister representing the other side and the respondent representing themselves. The interrelationship between confidence and other factors will be explored further in Volume 3 of the PULS.

Groups where  significant variations in confidence were identified

  • people with caring responsibilities for elderly or disabled adults
  • younger and older people
  • people living in major cities
  • people experiencing mental distress.
Practical legal literacy

Generally, Victorians don’t have significant difficulties in finding, understanding and navigating legal information and services, but a concerning proportion do.

PULS respondents were asked six questions on levels of difficulty in relation to the ability to obtain, understand and navigate information and services.

People generally have reasonable practical ability to engage and interact with relevant legal organisations, though a significant group have inadequate or low ‘practical legal literacy’. This included 58.7% of people who reported sometimes, often or always having trouble finding the right person to speak to in organisations.

Groups where there were notable variations in practical legal literacy

  • First Nations people
  • people experiencing moderate or severe mental distress
  • Victorians with education lower than year 12 or equivalent.
Relevance of law

Most people recognised law as relevant to their everyday legal problems, but a significant and persistent proportion did not, and this was clearly related to socio-economic circumstances.  

PULS respondents were asked questions about the extent to which they thought ‘the law is relevant’ to eight situations involving everyday legal issues.

There was variation in the extent to which respondents considered law as relevant to different issues, though the law was seen relevant much more often than it was not.

Debt and money are one area where Victorians may not see the law as relevant, though people identified the law as relevant to wage theft much more than credit card or Centrelink payment issues.

Groups where there were notable higher or lower perceived relevance of law scale scores

  • people in middle age groups
  • First Nations people
  • people with caring responsibilities for elderly or disabled adults
  • people living in outer regional and remote
  • those with severe mental distress
  • people on medium to higher incomes.
Perceived inaccessibility of lawyers

Lawyers were mostly seen as accessible, though not all Victorians saw them as approachable or someone they would go to for help.  

PULS respondents were asked 10 questions about the extent to which they agreed with a series of statements about lawyers. This resulted in a score on the Perceived Inaccessibility of Lawyers (PIL) scale.

Overall, lawyers were seen as more positive than negative, though significant percentages still had concerns. There was significant variation in the extent to which respondents agreed with individual items with uncertainty around items leading to a ‘don’t know’ response.

Groups where there were notable higher perceived inaccessibility of lawyers scores

  • people in financial distress
  • people with long-term illness or disability
  • people with severe mental distress
  • First Nations people
  • older people.
Trust in lawyers

Where people had used lawyers, they were generally regarded as trustworthy, competent and having integrity.

PULS respondents were asked six questions about the extent to which, if they used a lawyer, they would trust and expect competence and behaviour of various types.

In relation to personal experience of lawyers (as opposed to lawyers in general), respondents reported high levels of trust, though 38.6% expressed less trust that lawyers would not overcharge for their work.

Groups where there were notable lower trust scores

  • people in financial distress
  • people experiencing severe mental distress
  • people in de facto relationships with children
  • older people.
Digital legal capability

Social and demographic variables strongly relate to digital legal capability. Many respondents to need at least some support in dealing with a justiciable problem online.

Respondents were asked eight questions on whether they have or could undertake a range of online tasks analogous to those you would need in dealing with justiciable issues.

There was a very strong and highly significant relationship between age and digital legal capability and a small group of Victorians (4.1%) who could be described as ‘digitally excluded’, who could not perform or were unfamiliar with all tasks.

People aged 65 years and over, the unemployed, people with lower education, people with the lower incomes and those in financial distress most likely to be digitally excluded.

The Relationship between capabilities matter

People need capability across multiple dimensions to achieve fair resolution to everyday legal problems.

The PULS explored the impact of different socio-economic circumstances (or social patterning) across a range of knowledge, skills and attributes, as well as the relationship between legal capability measures.

Putting two composite measures of capability together, one representing legal skills and confidence and the other attitudes to law, revealed distinct sociodemographic patterns.

These measures suggest which social groups face the highest barriers in accessing and using legal services and processes.

Groups where there were notable variations

  • older people
  • people with lower income
  • people with lower education
  • people experiencing moderate or severe mental distress
  • people in financial distress.

Implications and way forward

Legal understanding and capability

Legal capability matters. Poor legal skills, low legal confidence and negative attitudes to law all limit our ability to deal with issues in our lives which might have a legal solution (justiciable problems), which consequently reduces prospects of a just resolution.

Legal capability is not equally distributed, and like legal need and the experience of justiciable problems, the evidence demonstrates it is tied to disadvantage. The more extensive the inequality of capability, the greater the potential impact on fair and equal access to justice.

Policy makers and practitioners need to pay heed to legal capability, its social patterning, and the implications of different types of deficit on capability. Better understanding legal capability can lead to more effective service provision, more efficient systems, and deliver people-centred justice.

The social patterning of legal capability  

The PULS Volume 2 reveals distinct social patterning of legal capability. Some sociodemographic circumstances are related to life experience, such as the youngest respondents having the lowest level of legal knowledge and older respondents having the lowest level of digital capability for law.

When looking at the two scores created to reflect respondents’ broad legal skills, confidence, and general attitude to law and lawyers, a more nuanced picture of legal capability emerged. Profiles which take into account clusters of measures emerge, for example skilled/confident and positive in attitude, in contrast to those unskilled/unconfident and negative in attitude.

Of particular policy interest are people who have both low skills/confidence and a negative attitude. These Victorians might be expected to be both reluctant to engage with the legal system, and face difficulties in navigating and drawing benefit from it if they do.  

Legal capability and legal service delivery

Different levels of capability give rise to different legal policy and practice challenges. The data suggest that effective access to justice means recognising differences in capability, and responding accordingly – this is people-centred justice, widely seen as a path to more accessible and just justice.

A policy which intends to empower people to do it themselves may just not be enough, and risks wasting resources on insufficient assistance services. Appropriate levels of support will be required to ensure fairness. One size does not fit all.

This challenge is not limited to different forms of support, but also to accurately assessing the levels of support appropriate in a given instance. That is the access to justice service challenge. The focus on capability in the PULS provides both a direction of travel and potential indicators to facilitate capability-based triage and service provision.

Paths to developing legal capability

The PULS findings point to the diversity of policy and practice responses necessary to improve access to justice.

The findings indicate some population groups may develop capability through necessity, with particular legal skills and confidence relating to their life circumstances and exposure to law.  For example, this may account for carers having higher capability in some areas. The nature of that capability and learning may require quite different policy and practice responses.

These findings further suggest a need for a strong commitment community engagement, education and information, and reiterate the importance of initiatives aimed at building and maintaining trust, as well those enabling strong and effectives paths to justice through social and community services, particularly for those with higher legal and capability needs and greater risk poorer justice outcomes or even being excluded from justice.  

Bottom-up policy and top-down responsibility

How people think of law in everyday life, and attitudes to the legal system inevitably affect the use of legal services and processes.

If the goal in access to justice policy is to democratise justice, then attitudes, capability and behaviour all matter. Legal service providers and legal institutions have several responsibilities -

  • shape services to reach communities in need
  • ensure services are accessible and affordable
  • be sensitive to both needs and capabilities
  • deliver diverse forms of service to match needs and capabilities
  • promote trust, relevance and positive attitudes to the justice system
  • reach out to include those who are marginalised and excluded.

Perceptions of inaccessible or inadequate services, or inaccessible or unfair processes not only inhibit further use of those services and processes, but also feed a cycle of worsening attitudes, corroding confidence in the rule of law.

The need to tailor to capability is the responsibility of all legal services as well as to the broader non-legal advice services that make a critical contribution to realising access to justice for many. The challenge extends to how services – public and private - engage people, how they frame and design services, and the way they communicate with clients.

Effective justice systems and processes are best developed with an understanding of who experiences legal needs, what different people tend to do in response, and the different outcomes people tend to achieve. Responsibility for ensuring fair process and outcomes in the operation of the civil justice system however, and its ability to cater to diverse need and capability rests at the top.

Download

Understanding and Capability

Release date
February 7, 2024
Authors
Nigel J. Balmer
Pascoe Pleasence
Hugh M. McDonald
Rebecca L. Sandefur
Cover of the PULS Volume 2 report

Learn more about the PULS

Understand the background of the PULS and learn more about the purpose and value of the project.
Understanding PULS