Access to justice 

Access to justice — the idea that people should be able to obtain fair treatment and effective legal assistance regardless of their means — is not simply a policy slogan sitting outside legal ethics. It is one of the values that shapes the profession's ethical framework, and it connects several obligations that might otherwise look unrelated: pro bono expectations, costs disclosure, the tension between commercial legal practice and the public interest, and the model litigant obligation observed by government parties in litigation.

Why access to justice matters to legal ethics

Legal ethics is often taught duty by duty — to the court, to the client, around conflicts and confidentiality — but those duties exist within a legal system that only functions as intended if people can actually access it. A profession that observes every specific duty perfectly, while remaining effectively unavailable to most people because of cost or other barriers, has not fully lived up to the values underlying its ethical framework. Access to justice is the value that connects individual professional obligations to that larger picture.

Pro bono expectations

Many Australian lawyers and law practices undertake pro bono work — legal work performed for free or at a significantly reduced fee for clients who could not otherwise afford it. Pro bono work is generally understood as an expectation woven into the profession's culture and professional bodies' guidance, rather than as a universally enforced legal obligation on every individual practitioner. It reflects a recognition that the profession, collectively, holds specialised knowledge and standing that carries a corresponding responsibility toward people who cannot otherwise obtain legal assistance.

Costs disclosure obligations

A more directly enforceable expression of the same underlying value is the obligation on lawyers to give clients clear and timely costs disclosure — information about the basis on which costs will be charged, and a reasonable estimate of what the matter is likely to cost. Costs are one of the most significant practical barriers to accessing legal help, and a client who does not understand, or is not told, what a matter will cost cannot make an informed decision about whether to pursue it at all. Clear costs disclosure does not by itself solve the affordability problem, but it is a precondition for a client being able to make a genuinely informed choice about engaging a lawyer, continuing a matter, or seeking help elsewhere.

The tension with commercial practice

Legal practice is, for most lawyers and law practices, a commercial undertaking, and there is a genuine and honestly-acknowledged tension between running a viable legal business and the public interest in legal services being available to people who cannot pay commercial rates. The profession does not resolve this tension by pretending it does not exist. Instead, it is managed through a combination of individual pro bono contributions, community legal assistance, government-funded legal aid schemes, and professional norms that discourage lawyers from treating access to justice as someone else's problem. A student encountering this tension in a problem question should recognise it honestly rather than assuming the profession has a single tidy answer to it.

The model litigant obligation

A related and more specific obligation is the model litigant obligation, observed by government parties — Commonwealth, state, and territory — when they are involved in litigation. Where a government party is a litigant, it is expected to act with a standard of fairness that goes beyond what a purely commercial or self-interested litigant might otherwise be required to do — for example, not taking unfair technical advantage of a less-resourced opponent, not prolonging litigation unnecessarily, and dealing with claims promptly and fairly. For the Commonwealth, the obligation is set out in Part 5, Division 2 of the Legal Services Directions 2025 (Cth), in force from 2 March 2026 in place of the 2017 Directions.¹ This obligation connects directly back to access to justice: because government litigants often have a significant resourcing advantage over individual citizens, the model litigant obligation is one mechanism for ensuring that advantage is not used to make justice practically inaccessible to the other side.

Applying this in a problem question

1. Identify which specific access-to-justice obligation is actually engaged on the facts — pro bono expectations, costs disclosure, or the model litigant obligation — rather than treating "access to justice" as a single freestanding rule.
2. Where costs disclosure is in issue, ask whether the client was given enough information, early enough, to make a genuinely informed decision.
3. Where a government party is involved in litigation, consider whether its conduct is consistent with the model litigant obligation, and explain what that obligation would require in the circumstances.
4. Acknowledge the tension between commercial legal practice and access to justice honestly, rather than assuming the profession has fully resolved it.
5. Connect your answer back to the underlying value — genuine access to fair treatment and legal assistance — rather than treating each obligation as isolated from the others.