“Complex legal language” is a barrier to justice

One of Australia’s leading lawyers believes complicated legal terms are a barrier to ordinary people achieving justice in the legal system.

The NSW Civil and Administrative Tribunal (NCAT) is a ‘one-stop-shop’ for specialist tribunal services in NSW. The tribunal’s head, Justice Robertson Wright, says it’s time to ‘get real’ and ditch the ‘legal-ese’.

As part of plans to make it easier for people to have their cases heard, Justice Robertson Wright says the time has come for a shake-up of the language – to stop using the “bewildering array of terms” currently spouted by lawyers and replacing them plain English.

By this, Wright means that age-old terms like ‘interlocutory application’ need to be replaced by simple words like ‘request’, and ‘given leave’ by words like ‘allowed’.

“I am looking forward to working with members and registry staff to simplify our procedures and processes across the tribunal so that people coming to the tribunal no longer face a bewildering array of words with which they are not familiar, forms that are difficult to fill out or practices which inhibit their ability to put forward their cases and be heard,” Wright says.

In the nearly three years since its inception, NCAT, which is also sometimes known as the ‘people’s court’ or the ‘consumers court’, has been working hard to ensure that everyone who comes before it has clear, easy-to-understand information about systems and procedures. This is done so that ordinary people are able to fully understand and participate in the process.

Over that period, NCAT has conducted more than 150,000 hearings and resolutions. A key part of the tribunal’s dispute resolution process is negotiation – where parties are advised to listen to one another’s side of the story and work together to find a solution.

“We want more people to feel in control of the process and confident in the result,” says Wright.

Tribunals in NSW

NCAT was established to make accessing the legal system easier for all people in New South Wales. It replaced 22 tribunals when it was established in January 2014 as an outcome of the Legislative Council’s Standing Committee on Law and Justice Inquiry, which result from a recommendation to improve access to justice.

NCAT resolves disputes like disagreements between landlords and tenants, and builders and homeowners, disputes over the supply of goods and services, and some family and employment disputes. It’s more informal than the traditional court system and often more flexible, enabling some party’s to conduct initial meetings and hearings via phone rather than attending in person.

Tribunals exist in parallel with the traditional court system and are normally staffed by a panel of experts – people with specialist knowledge about a particular subject. They are typically faster and usually more cost effective than courts. Tribunals can help take the pressure off our already burdened local and district courts.

NCAT was originally established to enable ordinary people with a grievance to represent themselves through a facilitated resolution process. However, the tribunal acknowledges that the complexity of language it uses can be an obstacle to achieving fair outcomes.

It believes that doing away with complicated language will allow more people to effectively represent themselves.

Simplifying legal mumbo jumbo for everyone

The stance taken by NCAT is, in many ways, a reflection of a broader push across a range of industries, including the financial and insurance sectors, to unscramble jargon and communicate more plainly to customers and the wider public.

British Comedian Michael McIntyre jokes that he’s afraid that computer giant Apple may someday come and take possession of his house because he’s never actually read the iTunes terms and conditions, and he could have inadvertently ‘agreed’ to fine print permitting the company to do so. While it’s a clever gag, may not be all that far-fetched.

Many of us are just as guilty of overlooking fine print and, even if we did read it studiously, a lot of us (certainly those of us without law degrees) would struggle to understand what these terms mean anyway, or what the implications are.

With more ‘self-service’ being encouraged by businesses and conducted by customers, especially online, all businesses should make a concerted attempt to address the complexity of language across all fronts – from sales contracts to insurance policies, privacy agreements to warranties – so that people can actually understand their rights and responsibilities and feel confident that they know exactly where they stand when a process is taking place.