Access to law is a fundamental right and protected by the rule of law, which entitles everyone to justice and fair treatment before the law. Adequate access to law includes the ability to obtain correct information about the law and to understand how this information applies within legal proceedings. Access to law therefore is essential to litigants and prisoners ability to properly prepare for their proceedings and exercise their right to justice.
Unfortunately, prisoners are often unable to exercise these rights, they experience barriers including time restraints, restricted access to resources due to lack of access to Internet or physical segregation, and lack of knowledge of the legal system. Legal advice and representation is limited or unavailable to prisoners which causes isolation and poor outcomes for many prisoners who are unequipped to present their own legal arguments.
Self-representation is when people who are involved in legal proceedings represent themselves. These litigants are responsible for conducting legal proceedings, including speaking for themselves during hearings, gathering and presenting evidence to the court.
Self-representation is a lived reality of many prisoners who are unable to afford legal services or are not eligible to access state and community provided legal assistance. This is problematic as it often leaves prisoners unequipped and vulnerable in courts and legal processes.
Click here to read about Natasha Darcy’s story.
RELATIONSHIPS WITH LAWYERS
Even if clients are receiving legal representation, it is important that they are informed of the legal issues of their case. This helps clients discern what information is relevant for their lawyer to best advance their case.
ESSENTIAL RESOURCES FOR ACCESS TO LAW
All prisoners are entitled to certain basic equipment to ensure their access to law is not interfered with. This includes access to law textbooks, legislation, and case law, computer in cell, prisoners’ own legal transcripts, a table, a light, and a pen. Click here for a checklist.
If a party wishes to defend their case, court transcripts are necessary find a legal record to which the prisoner is entitled. Access is essential for prisoners to prepare defences and appeals and to collate documents. Robin Smith, Michael Patsalis.
Legislation & case law
Legislation and statutory rules give inmates access to the statutory rules that govern their circumstances and trial. Michael Hoogondoorn
Access to computers & Internet
Computers in cells provide prisoners with an opportunity to maximise their access, services and resources electronically. Australia’s custodial environment lacks adequate access to Internet for prisoners to access Austlii, and insufficient legal resources to assist themselves for the proceedings. Tony Liristis
CHECKLIST OF ESSENTIAL RESOURCES
Justice action has constructed a checklist for fundamental items which prisoners should have access to in cells.
This checklist includes access the accurate and adequate information, basic equipment and resources for prisoners representing themselves.
ENFORCEMENT OF ACCESS TO LAW
Courts can force prisons to provide access to legal resources. There are several categories of not-for-profit legal providers available to disadvantaged clients. However, these providers have set out an eligibility test that assesses means, matter and merit components. The links below provide guidance on eligibility and access to these services.
- Legal Aid Commission: legal services in most areas of criminal law, family law and civil law.
- Community Legal Centres NSW:
- Aboriginal and Torres Strait Islander Legal Services (ATSILS):provide criminal, civil and family law services to Aboriginal and Torres Strait Islander Australians and their families in Queensland
- Family Violence Prevention Legal Services: provide specialist, culturally safe legal services and supports to Aboriginal and Torres Strait Islander
INTERNATIONAL LAW ON ACCESS TO LEGAL RESOURCES
- The Universal Declaration of Human Rights (UDHR)
- International Covenant on Civil and Political Rights (ICCPR)
- Nelson Mandela Rules
- Bounds v. Smith 1997 (430 U.S. 817)
- Griswold v. Connecticut decision (381 U.S. 479) 1965
International Law, Standards and Treaties provide an important basis and standard upon which prisoners can defend their right to access to law resources. The following links provide rules and reference materials regarding practical measures that can be taken to ensure that individuals have the resources.
- Universal Declaration of Human Rights (UDHR), Article 10
- “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
- International Cases
- US: Bounds v Smith
- Nelson Mandela Rules
- The United Nations Standard Minimum Rules for the Treatment of Prisoners were adopted by the United Nations General Assembly on 17 December 2015 after a five-year revision process. They are known as the Mandela Rules in honour of the former South African President, Nelson Mandela
- Louis Schetzer and Judith Henderson, Access to Justice and Legal Needs (Law and Justice Foundation, 2003).
- Productivity Commission, Access to Justice Arrangements (Productivity Commission Inquiry Report, No 72, 5 September 2014).
- Legal and Constitutional Affairs References Committee, Access to Justice (Senate Committee Report, December 2009).
 International Covenant on Civil and Political Rights, opened for 16 December 1966, 2200A (XXI) (entered into force 23 March 1976) art 14.