National Legal Aid Best practice Conference

Glenelg, 15 September 2005, Keynote Address, The Hon John von Doussa QC, President, Human Rights and Equal Opportunity Commission

“Strengthening the Planks”

I would like to acknowledge the Kaurna People, the traditional owners of the land on which we stand and pay my respects to their elders, both past and present.

Introduction

The topic of today’s conference is “strengthening the planks of the justice system”.

In many respects, this theme is highly topical.

The day I began to think about this speech, I read an article in The Australian which troubled me considerably.1 It concerned the Queensland Chief Magistrate’s decision to meet with the managers of the Townsville Community Legal Service to discuss the serious backlog of cases that is preventing it from offering adequate, timely legal advice to Indigenous Australians in the area north of Mackay and Cape York. The backlog is the result of the federal Government decision to withdraw funding from the established Aboriginal Legal Aid Services, and to put the provision of those services out to tender. The tender process had the consequence in Queensland of putting the work of 12 Indigenous Legal Services into the hands of two of them. Not surprisingly those two were swamped beyond their capacity, so many defendants are waiting in jail for months for a legal advisor to consider their case. It was alleged that many defendants were pleading guilty to avoid having to wait, or defend themselves.

There was a very serious problem.

Another concern is presently unfolding.

On Thursday last, the Prime Minister announced yet another series of anti-terrorism proposals. The proposals include control orders; preventative detention; access to passenger information; stop, question and search police powers; more ASIO warrants and powers; and curbs on the freedom of speech.

The Prime Minister is trying to encourage the States to introduce 14 day detention, without charge or warrant, into their anti-terrorist laws. I suspect that the purpose of this is to side-step protections of fundamental freedoms in the Australian Constitution, either by avoiding the right to judicial review and habeas corpus that is protected in s 75(v), but not entrenched in State constitutions, or because protracted detention without charge might be considered as punitive, and contrary to Chapter III.

May I begin by exploring the implications of your Conference theme and in particular that there is weakness within it.

Identifying the Planks in the Justice System

Looking at the image which adorns your Conference brochure the planks of the justice system look like very solid beams. At the macro level, I think there are three major groups of planks in the justice system

First, they will be those that provide the administrative structure - both physical and legal -of courts and tribunals including the decision-makers that sit in them.

Secondly there will be those that provide the procedures which work within the administrative structure – the principles of natural justice, the rules of court that dictate where, when, and in what circumstances one enters the structure, the rules which establish and regulate the legal profession, and the policies and economic realities their influence access to these procedures.

Finally, there are the substantive laws themselves.

Surrounding these planks, propping them up and giving them strength, are a raft of additional principles that ensure that these planks are both composite parts of a system of government and the skeletal structure of the system of justice.

I do not intend to analyse these additional principles in great length, as I doubt that you want a lecture of several hours duration. However, I will mention the most salient.

At the heart of our constitution, both written and unwritten, lies three foundational principles: democracy, the separation of powers and the rule of law.

These principles are in turn buttressed by laws that enforce standards of behaviour governing those who perform a leadership role in public life. These laws require transparency and accountability from legislators and bureaucrats, as well as ethical behaviour from advocates and judges. They exist in recognition of the fact that the institutions of government, and the constitutional principles that give them meaning, may be magnificent in theory but can be easily sullied by the misconduct or inefficiency of those who control them. Throughout the world, there are innumerable examples of countries modelled on the principle of liberal democracy but whose practical experience of good governance is next to nil because of the corruption that lies at the core of public life.

Finally, overlaying all these institutions and ideologies are three principles that do not relate to the governors but instead to those who are governed. They are: respect for human rights, equality and multiculturalism.

Do the planks in the system need strengthening?

My short answer to this is “no”. I think that in most instances, injustice is not the result of weaknesses in the planks. Rather, it is caused by the gaps between the planks through which people fall. I shall return to this idea in a moment.

The planks themselves are relatively strong. The Australian justice system reflects most, if not all, of the pre-requisites of good governance. It is democratic, free from corruption and aware of its international human rights obligations. Its laws promote the principle of equality. Its courts uphold the right to a fair trial. Defendants are entitled to confront and cross-examine their accusers, witnesses are not required to disclose self-incriminating evidence and police powers of investigation and arrest are heavily regulated. These planks in our system are strong in comparison to other countries.

However, this does not mean that there are no cracks. Democracy has its well-recognised limits. It better protects the majority than the minority.

We all know of daily instances where human rights are violated. I have already mentioned two areas of concern. Equality and multiculturalism in Australia are facing new challenges. The debate over Muslim women’s choice to wear hijab is a recent example. That debate exposed the underbelly of prejudice that exists in this country despite protestations to the contrary. For Indigenous Australians, prejudice and adversity is endemic.

Perhaps the persistence of prejudice and discrimination reflects weakness in the so-called planks, but I am inclined to think that it is more related to what I refer to as the gaps between then the planks.

The gaps between the planks

In my view, the real question is not how to strengthen the planks but how to close these gaps, and to ensure that everyone who needs to rest on them can do so.

The reasons why someone might fall through the gaps are well-documented. Ignorance of the law, age, illiteracy, culture, distance, language barriers and financial constraints all play a part. In a Senate report published in 2004, the Legal and Constitutional Reference Committee noted that women, people living in remote areas, migrants, refugees and Indigenous communities faced particular difficulties in accessing justice.2

As legal aid lawyers, you no doubt deal with these issues every day.

HREOC has had its own experiences in dealing with disadvantaged people who are, or at least feel unable or unwilling to complain about the violation of their rights.

In the wake of 11 September 2001 and the Bali bombings, the Commission was hearing anecdotal evidence of discrimination and prejudice against Arab and Muslim communities but was not receiving formal complaints. This concerned us because it meant that the victims were not exercising their rights. We were keen to find out the extent to which the anecdotes mirrored reality and why no complaints were being made.

We approached this task by conducting national consultations under the title Isma ع, which means “listen” in Arabic. The aim of the project was to listen to Arab and Muslim Australians to determine the nature, extent and impact of the alleged prejudice and to discover what could be done to assist them.

We learned that while they were experiencing escalating levels of prejudice in all aspects of public life, they were more likely to complaint to their friends, families and religious groups than to police and government organisations.

The reluctance to lodge a complaint was due to fear of victimisation; lack of trust in authority; lack of knowledge about the law and complaints processes; the perceived difficulty in making a complaint and the perception that outcomes were unsatisfactory.

How can these gaps be closed?

I am sure there are many credible views about this, but there are three obvious things that would go a long way to ensuring that the planks really work as a platform. These are each matters that you strive to achieve, and this Conference is intended to promote,

  1. Improved access to legal aid for indigent litigants;
  2. Competence and best practice by the lawyers who provide legal assistance; and
  3. A legal system which is as simple and informal as possible, at least at entry level, to allow those without legal aid the possibility of representing themselves.

One of the main roles of a lawyer is to facilitate access to the justice system. In most cases, access to legal assistance is vital, and without it there is a high risk that justice will not be done. In the ideal world legal aid would be provided to all who qualified, but we know only too well that is not the case in Australia.

One of two consequences is likely to follow from a potential litigant’s inability to secure legal representation – self representation, or abandonment. The former, as we have all experienced, almost inevitable means a failure to properly present the true legal merit of the person’s case. The alternative means that the person will drop a claim or defence, often to a significant criminal charge.

Either choice can lead to serious rights violations.

In Australia, there is no right to legal aid. The High Court in Dietrich3 fell short of recognising such a right when it held that courts should grant applications for adjournments or stays if a defendant charged with a serious offence is was unable to obtain legal representation. There is no right to legal aid in civil matters in Australia.

In international law, legal aid is considered an integral element of the right to a fair trial. Article 14 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, provides that all persons shall be equal before the courts and tribunals, and goes on to lay down principles intended to implement this. Art 14(3) (d) guarantees legal aid in criminal matters where the interests of justice so require. It states:

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it…”

I think the Dietrich principle meets this requirement.

Article 14(3) (d) does not entitle a defendant to choose a particular counsel where a legal aid lawyer is provided.4

Article 14 also applies to civil cases. Paragraph 1 states that in the determination of a person’s rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Arguments have been successfully made before the UN Human Rights Committee that the right to a “fair” hearing includes the right to legal aid in civil matters. In Currie v Jamaica, the applicant, who was a prisoner on death row, successfully claimed that his right to a fair trial was denied because he had not been granted legal aid to help him bring a claim in the Constitutional Court. The nature of the claim before the Constitutional Court was civil, not criminal. The Human Rights Committee acknowledged that the ICCPR only made express provision for legal aid in criminal matters, but went on to recognise that the process of making a claim before the Constitutional Court was extremely complicated. It decided that the guarantee of a fair trial in Article 14(1), combined with the undertaking in Article 2(3) to provide individuals with an effective remedy for violations of fundamental rights, meant that the applicant was entitled to legal aid.

The European Convention on Human Rights is drafted in similar terms to the ICCPR but the right to a fair trial has been given much broader interpretation. Article 6(1) states:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The question of whether fair trial under the Convention includes the right to legal aid in civil matters was considered by the European Court of Human Rights in Airey v Ireland.5 The Court decided:

“The Government contends that the applicant does enjoy access to the High Court since she is free to go before that court without the assistance of a lawyer….The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.  This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial….The court concludes...that the possibility to appear in person before the High Court does not provide the applicant with an effective right of access. ..There has accordingly been a breach of Article 6 sec. 1.”

This decision appears to have the consequence that all European States that have signed the Convention are required to give effect to this right.

The Human Rights Committee has not gone this far in the interpretation of Art 14 of the ICCPR, but in at least two decisions concerning complaints about injustice in civil proceedings, the Committee has referred to the notion of ‘equality of arms’ as an essential component of a fair hearing.

The lack of legal representation in a civil case where there is a gross imbalance in the ability of parties to conduct a trial presents enormous difficulties to the judge and to counsel who are involved because if they allow the imbalance to impinge on the merits of the cause, there must be a real risk that the outcome of the trial will be overturned on appeal on the footing that there was not a fair hearing. But I fear we have a long way to go before this possibility persuades an Australian government to better fund legal aid in civil proceedings.

I do not propose to say anything about competence and best practice of legal aid lawyers, save to say that my own observations over the years support the often expressed view that legal aid lawyers are a dedicated group who are of critical importance to the day to day functioning of the system – and that they receive inadequate recognition for their contributions. And I commend them for participating in Conferences like these where the very issues of best practice are considered.

I do want to something about the pursuit of simplicity in the system. Notable advances include such things as plain English drafting of statutes, explanatory memoranda, and in the court arena small claims jurisdictions, the Nunga Courts, and ADR generally. The latter in particular deserves all the encouragement possible both by the courts and the lawyers. ADR provides a process for resolving cases that most people can understand and afford, and it offers outcomes that can be tailored to meet the emotions and wants of the parties that are well beyond the scope of court based remedies.

An area where I see simplified procedures operate is under the Federal anti-discrimination laws. HREOC administers the five federal anti-discrimination Acts6 under which the Commission is empowered to receive complaints of unlawful discrimination. All complaints must be referred to me as President. Then I, or my delegate, conduct an inquiry into the complaint and then seek to resolve it by conciliation. If the complaint cannot be conciliated I must terminate HREOC’s inquiry. I can also terminate a matter where I am satisfied that the complaint is unfounded, vexatious or can better be resolved through some other procedure outside the Act. After termination, the complainant then has the right to initiate proceedings in the Federal Court or Federal Magistrate’s Court.

Throughout this process, there are statutory safeguards to ensure that the making of a complaint is as easy and informal as possible. First, the Commission it required to give “legal aid” of sorts to complainants who are having difficulties formulating their claim. Section 46P (4) states:

If it appears to the Commission that:

(a) a person wishes to make a complaint under subsection (1); and
(b) the person requires assistance to formulate the complaint or to reduce it to writing;

the Commission must take reasonable steps to provide appropriate assistance to the person.

There are no prescribed forms to fill out and the staff who work in the Complaints Handling Section frequently go to great lengths to help complainants clarify their claim. During the conciliation phase, the person presiding must ensure that the conduct of conciliation does not disadvantage either the complainant or the respondent. If one of the participants in the conciliation conference has a disability, he or she is entitled to nominate a representative, and every effort is made to ensure that there is an ‘equality of arms’.

If you are asked to assist a person who has a termination notice and wants to go to court, I urge you to read and understand it. Almost always the reasons that accompany the notice set out the factual allegations and position of each party and identify the legal issues that will govern the outcome. These reasons are intended to be of assistance to the parties and the court to get to the real issues if the matter goes on.

I mentioned earlier that the Commission had initiated a process of consultations with Arab and Muslim Australians after it noticed an increase in anecdotal evidence of prejudice, without seeing a correlation in the number of formal complaints made. The consultations brought to our attention the discrepancy, or “gap”, between the existence of the complaints mechanism and Arab and Muslim people’s access to it. We have tried to combat the problem by increasing our Arabic language education resources, speaking publicly to religious and cultural groups on the role of the Commission and generally building stronger relations with representatives of those communities. As yet, it is too early to determine whether we have been successful. However, we have noticed that more inquiries about religious discrimination are being made by Arab and Muslim Australians, even if those inquiries are not always materialising into formal complaints.

The Impact of an Australian Bill of Rights

I wish to end with a few words about the potential impact of an Australian Bill of Rights, the need for which is often promoted during debate about the shortcomings of our migration laws and the anti-terrorism laws. These laws are making well informed people understandably nervous. For the first time, ordinary members of the public are realising that parliamentary democracy is a double-edged sword. It can be a shield or a sword, depending on the political context.

As many of you will be aware, there have been several attempts to introduce a Bill of Rights since Federation. The first suggestion was made by members of the Constitutional Convention in 1898. It failed because a majority of the delegates believed that the common law and parliamentary democracy was sufficient to protect human rights.

In recent years, the issue has risen again. In part, it has been prompted by the introduction of the Human Rights Act 1998 in the United Kingdom. Australia is now the only common law liberal democracy without comprehensive legislative or constitutional protection of human rights

A Bill of Rights will not necessarily provide us with the protection we seek. It will depend upon the Bill’s status, application, enforceability, and remedial powers, to name but a few. It cannot be assume that a Bill will automatically grant these powers. The recently introduced Human Rights Act 2004 of the Australian Capital Territory illustrates this. The Act only gives the courts the power to declare statutes incompatible with human rights standards. If this happens the legislation goes back to the Legislative Assembly, but the Assembly is not obliged to take any particular action. It might leave the legislation as it is. Moreover the Act does not apply to the executive, nor does it give any remedies for breaches.

However, although the Act is in these respects weak, it is certainly not without value. The Act requires the Attorney-General to prepare a written compatibly statement about a bill before its presentation to the Legislative Assembly stating whether the bill is consistent with human rights, and if not, how it is not consistent. Further, a standing committee must report to the Legislative Assembly about human rights issues raised by a bill. The Act also establishes the office of Human Rights Commissioner whose functions include reviewing the effect of all Territory laws on human rights, and providing human rights education. The Act directs courts where possible to interpret Territory laws in a way that is consistent with human rights.

After a year of operation, it seems that the effect of the Act, like the similar Human Rights Act 1998 in the United Kingdom, has been to imbue a spirit of human rights into the law making process.

The Victorian Government is now thinking about introducing a similar Act. If drafted in the same terms, it will suffer the same weaknesses. We can only hope that an Australian government realises before too long the need to enact stronger human rights laws that create remedies for the contravention of the human rights of an individual.

I wish you luck in your conference and hope you produce useful guidelines in your quest to further strengthen the planks in the justice system.

Thank you.

Endnotes

1 Michael KcKenna, “Judiciary acts over aid chaos for blacks”, The Australian, 30 August 2005.

2 The Senate, Legal and Constitutional References Committee, Legal Aid and Access to Justice, June 2004.

3 (1992) 177 CLR 292

4Pratt and Morgan v Jamaica Human Rights Committee (210, 225/86).

5 2 Eur. Ct. HR Rep. 305(1979)

6Race Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004 and Human Rights and Equal Opportunity Act 1986

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