Understanding and Capability

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.

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, Volume 3 expands significantly on these findings.

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.

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