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COURT of CONSCIENCE ACCESS TO JUSTICE • ISSUE 8, 2014


Editor-in-Chief Giridhar Kowtal

Editorial Team Amila Perera Emily Haworth Genevieve Wilks Lauren Blumberg Sumaiya Patel Yi Lu

Design & Cover Illustration Niki BaĂąados

Social Justice Vice President Katerina Jovanovska

Presidents Marie Iskander Benjamin Heenan


CONTENTS

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10 16 22

25

30 35 39

44 48

55 61

66 69

The Productivity Commission’s Draft Report on Access to Justice Arrangements: A Brief Survey

I welcome you to the eighth edition of the Court of Conscience.

Ronald Sackville AO QC

2014 is a year of many firsts for our award-winning publication. This year’s

The Price of Peace: Impunity, Maternus Bere, and the Pursuit of Transitional Justice in East Timor

Issue features our first ever ‘Special Issue’ devoted to the theme: ‘Access to Justice’. It is timely; the Productivity Commission is in the process

Henry Cornwell and Hannah Lippmann

of undertaking a mammoth 15-month inquiry into Access to Justice

Looking Across the Tasman: Treaty, Not Federation!

UNSW Law Society made a submission).

Arrangements, including a period of public consultation (for which the

George Fermanis

Access to Justice: How Much do We Really Care? Luke Griffin

We were also proud to introduce the peer review process to the Court of Conscience this year. This process provided expert feedback to all our submitters, which they could engage with to improve the quality

Why Representation and Resources are Critical to Access to Justice in Minor Civil Jurisdictions: The Experience of Advisory Services in Minor Civil Claims

of their submissions. It is also hoped the introduction of this important

Margaret Castles, David Caruso and Anne Hewitt

publication. This Issue continues the Court of Conscience’s proud tradition

Australian Asylum Law: Cuts to Funding a Threat to Access to Justice and a Burden on the System Rebecca Leabeater and Genevieve Wilks in collaboration with the Refugee Advice and Casework Service

academic process further improves the academic prestige of this important of providing a space for academics, lawyers, and, importantly, talented students of UNSW Law to engage their interest in social justice, and hopefully inspire readers to do the same.

Language as a Barrier to Justice

A warning: many articles in this Issue are a sobering read. I was struck

Anna Harley

by a VicHealth study, cited in Graeme Innes’ wonderful article, which

Access to Justice Graeme Innes AM

All by Myself: Access to Justice for Self-Represented Applicants in Merits Review Tribunals Fatima Paras

Equality Before the Law: Including for Asylum Seekers? Joyce Chia

Does a Bill of Rights Necessitate Better Protections of the Right to Legal Representation?

found that 90 per cent of Australian women with an intellectual disability had experienced sexual abuse in their lives. This is truly staggering. But awareness is the first step. It is hoped that by highlighting barriers to access to justice, this Issue will contribute to the national debate on access to justice and equality before the law. We will consider this publication a success if the words contained here inspire our readers to commit to improving our civil and criminal justice system. My special thanks to the outstanding Editorial Team for their tireless work in seeing this Issue to fruition. I hope you enjoy reading it.

Chantal Tanner

Giridhar Kowtal

Equality before the Law: A Barrier to Access to Justice?

Court of Conscience 2014

Lucia Noyce

UNSW Law Society

Voiceless Animals and their Activists: Barriers Experienced in their Attempts to Access Justice Yenee Saw

The Criminal Trial: Where Law Meets Justice? Marco Olea

Editor-in-Chief


The Productivity Commission’s Draft Report on Access to Justice Arrangements: A Brief Survey Ronald Sackville AO QC*

In April 2014, the Productivity Commission released a Draft Report on ‘Access to Justice Arrangements’.1 It has invited public comment on the Draft Report albeit within a very tight timetable, with a view to presenting a final report to the Australian Government by September 2014.

I. SOME BACKGROUND In the absence of a political upheaval, the report will be presented to a Government of a different political complexion to the one that requested the Commission to undertake the inquiry. The request was made in June 2013 by the then Assistant Treasurer in the minority Labor Government. If completed on schedule, the report will be presented to the conservative Coalition Government which enjoys a comfortable majority in the House of Representatives, but faces a fractious Senate. Leaving aside questions relating to the constitutional division of powers between the Commonwealth and the States, whether the Coalition Government will welcome yet another report on access to justice remains to be seen. The Draft Report has three striking features: •

it represents the latest in a long line of official inquiries in Australia into access to justice;

perhaps not surprisingly, the report reflects the economic emphasis of its terms of reference and the nature of the Productivity Commission itself;2 and

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its 875 pages cover a wide range of topics that bear on access to justice and incorporate the fruits of research on those topics carried out in Australia and elsewhere.

is compounded by insidious practices such as timebased charging; •

II. A FAMILIAR LITANY The Draft Report records the indisputable fact that numerous inquiries have been conducted in Australia into access to justice,3 almost all of which have incorporated the expression ‘access to justice’ into their title and terms of reference. These inquiries highlight deficiencies in the civil justice system that are identified by the Productivity Commission. The litany is familiar: •

the legal system is too slow, too expensive for the vast majority of people who seek to enforce or defend their rights or interests and too adversarial;

the law itself is far too complex for ordinary people to understand and in any event the complexity creates uncertainty and leads to expense and delay in the resolution of disputes;

people often lack the knowledge to appreciate that they have a problem with legal dimensions and that there are institutions and mechanisms available to assist them in resolving the problem;

the market for legal services is characterised by information asymmetry between the service providers and consumers, the significance of which

disadvantaged groups and individuals face many barriers in accessing the civil justice system, including communication difficulties, limited finances and a lack of understanding about how the system works; and dispute resolving bodies such as courts and tribunals have been slow to adapt to the modern world by eliminating wasteful procedures and practices, making their procedures more user friendly and by utilising new technology.

III. ALLEVIATING INJUSTICE Since almost all inquiries, with relatively minor differences in emphasis, have made virtually the same criticisms of the civil justice system, obvious questions arise: why are the barriers to improving access to justice so apparently intractable? And why have successive inquiries over forty years or more essentially identified the same deficiencies?4 One answer can be found in the use characteristically made of the expression ‘access to justice’. As the Productivity Commission recognises, the expression has been used by different commentators to convey different meanings.5 I have made the point elsewhere that ‘access to justice’ has become a catchphrase that commands virtually universal adherence precisely because it can be employed without descending to detailed policy prescriptions.6 Like other terms imbued with emotive

connotations, it is an expression calculated to attract without necessarily committing anyone to particular remedial action. It is not easy to transform the debate from one in which access to justice is an abstract aspiration to one which formulates objectives that are capable of attainment, or at least capable of being translated into reasonable benchmarks. The Draft Report certainly examines a series of important topics and makes recommendations or proposals for further inquiries in relation to each. But the difficulty of pouring content into the expression ‘access to justice’ is demonstrated by the Draft Report’s attempt to define it. Rather than solving the definitional problem, the report seeks to avoid the difficulty by defining ‘access to justice’ for the purposes of the inquiry to mean ‘making it easier for people to resolve their disputes’.7 It must be said that this is a narrow and inadequate definition. Mechanisms have long been available to enable people, including those without ready recourse to legal advice, to resolve their disputes speedily and cheaply should they choose to do so. The most obvious (and widely utilised) is of course a negotiated agreement between the complainant and the subject of the complaint. When agreement is not feasible, other mechanisms may be readily available depending on the nature of the dispute. These include industry dispute resolution schemes; recourse to regulators, ombudsmen and other complaints handling bodies; applications to bodies such as consumer claims and residential tenancy tribunals (whether or not subsumed with a larger tribunal 6


structure) which are directed by statute to proceed without legal formality and in accordance with the justice of the case; and alternative dispute resolution procedures such as mediation (whether or not involving lawyers).

“... constant vigilance

In any event, there is a more fundamental difficulty with the Productivity Commission’s definition. The core idea underpinning the goal of improving access to justice involves much more than making it easier for parties in conflict to resolve their disputes. The core idea can most simply be expressed as the alleviation (if not the elimination) of injustice.8 The alleviation of injustice requires action in many contexts related to the legal system other than the resolution of existing disputes. Injustice may be the product of misguided or deliberately harsh laws, lack of community understanding of basic rights and obligations (including the consequences of entering into legally binding transactions), cultural and linguistic obstacles to identifying, protecting or enforcing rights and entitlements, the inability of disadvantaged groups and individuals to locate or afford appropriate sources of advice and assistance (not merely in relation to existing disputes), as well as cumbersome, complex or unnecessarily expensive and dilatory court or tribunal procedures. To be fair, the Productivity Commission does not limit its analysis or recommendations to improving mechanisms for resolving disputes. It recognises, for example, the obstacles confronting many Australians in understanding and navigating the legal system and the consequential difficulties many face in ‘identifying whether a problem has a legal dimension’.9 Nonetheless, the primary focus of the Draft Report is on issues relating to dispute resolution such as court and tribunal procedures, the cost of obtaining legal advice and representation, litigation funding, legal aid services and alternative dispute resolution. Had the Commission adopted a broader perspective, it would have had more to say about the many manifestations of injustice in and associated with the legal system.

is required if injustice is to be alleviated.

” and vulnerable litigants should not be disadvantaged’ and that a ‘justice system which effectively excludes a sizable portion of society from adequate redress risks considerable economic and social costs’. But the language used in the terms of reference is replete with economic concepts such as ‘market failure’, ‘efficiency’ and ‘supply and demand’. No doubt for this reason the Commission sometimes applies the language of economics in unfamiliar ways as when it speaks, not entirely convincingly, of the ‘market for litigation’.11 The Productivity Commission’s emphasis on economic concepts narrows the focus of the report. The point is illustrated by the section of the Draft Report headed ‘Promoting an efficient and effective civil justice system’.12 In that section, the Commission adopts the submission of the Attorney-General’s Department that the effectiveness of the legal system in contributing to the maintenance of the rule of law should be central to ‘fostering social stability and economic growth’. The Commission considers that this objective would be achieved if the system:13 •

‘upholds the rule of law, protecting individual and property rights as set out in Australian law (including the rights of those least able to defend themselves),

IV. AN ECONOMIC PERSPECTIVE

The inquiry’s terms of reference10 reflect the economic constructs which underpin the work of the Productivity Commission and also tend to dominate political discourse in Australia regardless of the make-up of the political party holding power at any given time. The terms of reference acknowledge that access to the civil justice system ‘should not be dependent on capacity to pay

has public institutions and policies that aim to ensure timely, cost-effective, and appropriate legal services are available to the Australian people, businesses, and community organisations,

maximises the return from the allocation of public funding.’

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It is implicit in these policy goals that the effectiveness

of the legal system, including courts, tribunals and other dispute resolution mechanisms, can be determined by measuring inputs and outcomes. The Commission reinforces the implication when endorsing what it describes as ‘specific objectives’ of the civil justice system. These include resolving disputes quickly, treating people fairly and ensuring that legal processes are just irrespective of personal, social or economic circumstances. The Commission’s endorsement of these laudable objectives is, however, subject to the express qualification that ‘from an efficiency perspective it is important that they are applied with some care to achieve the social licence [sic] at least cost’.14 Of course ‘costs’ are not necessarily confined to financial costs. The Commission is clearly aware that a broad costbenefit approach to policy evaluation is a challenging undertaking. As the Draft Report notes, such an approach requires value judgments to be made about what is important to individuals and about other benefits and costs that may be difficult or impossible to measure.15 The danger, however, is that the elements in a cost-benefit assessment that are readily capable of measurement will be given disproportionate weight when set against considerations that are incapable of quantification in monetary or mathematical terms. It is therefore not surprising that the Productivity Commission yields to the temptation to concentrate on the measurable, particularly when Government expenditure is involved. An illustration is provided by the Commission’s examination of court fees. The Draft Report correctly points out that cost recovery requirements are highly variable among Australian courts and jurisdictions (although it would be more accurate to say that statutory fee regimes are highly variable, since Governments benefit from the fees paid by litigants, not the courts). The report states that the main objectives of the fee regimes are to recover costs efficiently, to send price signals to potential litigants to consider alternative means of dispute resolution and to ensure reasonable access to justice is not impeded.16 The report then asserts that the default position should be full costs recovery. It justifies this position by reference to jurisdictions, such as the United Kingdom and New Zealand, that have moved towards full costs recovery, but have granted relief to litigants assessed as unable to afford full fees. There is little doubt that governments will find the Commission’s default position to be attractive. There must be much greater doubt that, if a full costs recovery regime is imposed on litigants, the benefits of higher fees

will flow through to courts and tribunals, as distinct from enhancing general Government revenue. But what is not clear from the Commission’s analysis is why the principle of full costs recovery should be accepted as the default position. To characterise the civil justice system as simply a service to litigants for which they should collectively pay in full, overlooks the broader role played by courts and tribunals in preserving and protecting the rule of law, developing legal principles and maintaining both an orderly society and predictable outcomes in commercial transactions. It is undeniable that economic theory has much to contribute to the law and the legal system. The collaboration between economists and lawyers over the last few decades in particular has been enormously influential in shaping the development of legal principles in fields as diverse as the law of torts and competition law. But the civil justice system cannot be evaluated on the basis that it is essentially just another service provider. The tension between purely economic concepts and the ethos of the legal system assists in explaining a more basic problem that bedevils discussions about access to justice. There is and always will be an irreducible tension between the understandable desire for courts and tribunals to provide an authoritative forum for swift and cheap resolution of disputes and the minimum procedural requirements of a fair and just judicial system (or, to put the matter differently, a judicial system that aims to avoid inflicting injustice). In Australia, the potential conflict between maximum efficiency and maximum fairness has been resolved in favour of the latter. Thus the principle that courts exercising or capable of exercising the judicial power of the Commonwealth must accord procedural fairness to litigants has been elevated to constitutional status.17 Procedural fairness mandates that the parties have a fair opportunity to present their case, usually including the right to adduce evidence and to test the evidence relied on by their opponent. The consequence 8


is that litigation fought out in the court system (and to a more limited extent in tribunals) will expose the parties to significant expense and, on occasion, to what observers may regard as extensive delays. The reality is that dispute resolution, even when conducted within the constraints of modern rules of court and case management systems, is a labour and time intensive business.

The Price Of Peace? Impunity, Maternus Bere, and the Pursuit of Transitional Justice in East Timor

V. A CONTINUOUS PROCESS None of this is intended to detract from the utility of the legal system being subjected to close scrutiny by external policy-making bodies such as the Productivity Commission. Nor is it intended to detract from the importance of bringing an economic perspective to the evaluation of the practices of courts and tribunals and others participate in the dispute resolution process. That perspective adds a dimension that is not always present in official inquiries and is particularly significant in assessing new developments in dispute resolution, such as the emergence of litigation funders whose activities have profoundly altered the nature of certain kinds of litigation. The legal system, despite its reputation for rigidity and resistance to change, has demonstrated in recent times a surprising capacity to embrace far-reaching reforms. Sometimes the reforms are generated by internal initiatives, as with the widespread adoption of judicial case management in the courts. Sometimes they are externally imposed, at least in the first instance, as with the application of competition policy to the legal profession. Bodies such as the Productivity Commission pay a crucial part in what must be understood and accepted as a continuous process of evaluation and, in due course, improvement. The Productivity Commission’s work has been informed by the labours of its predecessors and builds on an increasing body of empirical research related to the legal system that has been conducted by academic institutions and public agencies. This is as it should be, since constant vigilance is required if injustice is to be alleviated.

Henry Cornwell* and Hannah Lippmann*

REFERENCES: * Visiting Professorial Fellow, Faculty of Law, University of New South Wales. The full Report of the Productivity Commission is due to be released in September 2014. 1.

Productivity Commission, Access to Justice Arrangements (Draft Report, April 2014) (‘Draft Report’).

2.

The principal functions of the Productivity Commission include holding inquiries and reporting to the Minister about ‘matters relating to industry, industry development and productivity’ referred to it by the Minister: Productivity Commission Act 1998 (Cth) s 6(1)(a). The quoted expression is defined to include legislative or administrative action taken or to be taken by the Commonwealth, State or a Territory that affects or might affect the productivity performance of industry, industry development or the economy as a whole: s 6(2).

3.

Draft Report, above n 2, 77.

4.

The series of reports in Australia commences with Australian Government Commission of Inquiry into Poverty, Law and Poverty in Australia (Second Main Report, AGPS, October 1975).

5.

Draft Report, above n 2, 78.

6.

Ronald Sackville, ‘Some Thoughts on Access to Justice’ (2004) 2 New Zealand Journal of Public and International Law 85.

7.

Draft Report, above n 2, 3.

8.

This idea is elaborated in Ronald Sackville, ‘Law and Justice: Do They Meet?’ (2014) 37 University of New South Wales Law Journal (forthcoming).

9.

For states transitioning from authoritarian rule marred by human rights abuse into democracy underpinned by the rule of law, the definition of justice for past transgressions, and how that should be accessed, can be sensitive and controversial. For these states, which have suffered the stifling of justice and democracy, a tension can exist between the pursuits of peace through reconciliation, and justice through prosecutions and reparations. Both peace and justice are ideals founded upon certain values, whose meaning varies epistemologically and according to individual beliefs.1 What may mean peace and justice in one culture may stoke unrest and injustice in another.2 In East Timor, this problem came to the fore of public affairs when in 2009 Prime Minister Xanana Gusmão ordered the release of an apprehended former militia leader, Maternus Bere. This article contextualises and describes this incident, in order to shed light on some of the conflicts and complications inherent in the pursuit of access to justice for transitional societies.

Draft report, above n 2, 145–9.

10. The terms of reference are reproduced in the Draft Report, above n 2, v–vii.

II. INDEPENDENCE

11.

Early in 1998, simmering tensions in the Indonesian province of East Timor began erupting into widespread violence. A referendum was scheduled for August that year, in which the population was to vote either for independence or ‘autonomy’ within the Indonesian Federation. Having been annexed by Indonesia in 1975,

Draft Report, above n 2, 329, 500.

12. Ibid 136–40. 13. Ibid 137. 14. Ibid 139. 15. Ibid 141. 16. Ibid 468. 17. See generally Wainohu v New South Wales (2011) 243 CLR 181.

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I. INTRODUCTION

mere days after being granted independence by Portugal, its colonial leader of over 400 years, the prospect of lasting political independence for the people of East Timor was real at last. Needless to say, many within the Indonesian establishment were loath to see that happen. The 1975 invasion and the intervening 24 years had been marked by widespread violations of international humanitarian and human rights law.3 Throughout the occupation, over 180 000 people – more than a quarter of the country’s population – were killed by famine, violence and other direct results of Indonesian military policy and action.4 Indonesian sovereignty over its entire archipelago was a point of pride for military leaders, and many feared that East Timorese independence would put wind in the sails of separatists throughout the nation, including in such provinces as Aceh and West Papua. In the hope of intimidating the population into voting to stay with Indonesia, officers based in East Timor began funding, arming and lending operational support to proIndonesian militia groups. When the time for the referendum ultimately came, 78.5 per cent of the population voted in favour of independence.5 The militias’ response to this outcome was violence characterised by rape, murder, assault and the destruction of property, which lead to the deaths of over 1000 independence supporters, and the displacement of 250 000 civilians,6 most of whom were forcibly deported to West Timor.7 It was only once the United Nations (‘UN’) intervened that violence ceased.8 In its aftermath, the UN Transitional Administration in 10


East Timor (‘UNTAET’) was established to temporarily govern East Timor and assist with state-building practices and the establishment of accountability mechanisms to allow the East Timorese people to access some form of justice.9

III. TRANSITIONAL JUSTICE IN EAST TIMOR A Accountability in International Criminal Law Accountability for violations of international criminal law (‘ICL’) is broadly understood to be necessary for peace and the maintenance of international stability.10 In ICL, this is enshrined in the Preamble of the Rome Statute, which calls for an ‘end [to] impunity’ – the antithesis of accountability – for the perpetrators of the ‘most serious crimes of concern to the international community as a whole’.11 Whereas impunity keeps perpetrators from legal accountability through either the granting of amnesties or the failure of states to enforce international norms,12 legal accountability sees individuals held responsible for their violations of ICL. Under the logic of ICL, criminal accountability is central to achieving justice for victims of serious crimes13 and deterring further violations of human dignity.

B Alternative Understandings of Accountability For transitional states, ICL alone may not always be a ‘vehicle for peace’.14 While accountability may be intrinsic to legal justice, experience demonstrates that its achievement may be compromised by other interests.15 Whereas amnesties may help to bring warring parties together in the name of reconciliation, or for the purpose of maintaining a viable polity or economy, the emphasis of ICL on accountability complicates this process. Some argue that non-criminal mechanisms alone are insufficient to achieve meaningful justice.16 On the other hand, ICL’s focus on criminal prosecutions in order to achieve accountability may reflect its predominantly Western conception and influence.17 Indeed, for some non-Western states, prosecution may be a process divorced from local culture, values and dispute resolution mechanisms.18 Heavy emphasis upon westerncentric views of accountability may leave non-Western states little room for flexibility when it comes to achieving a localised form of transitional justice. These considerations account for the rise of truth and reconciliation commissions that often incorporate hybridised approaches to penance and justice that attempt to balance pragmatism, indigenous values, and formal justice. 11

“What may mean peace and justice in one culture may stoke unrest and injustice in another.

” C East Timor’s Approach to Accountability In transitional states, a range of accountability mechanisms may be adopted in pursuit of a holistic notion of justice that balances pragmatism, international standards, and local demands and mores. In East Timor, the approach taken was determined by a range of economic, policy and geopolitical factors. It struck a balance between criminal and non-criminal approaches to justice by implementing a truth and reconciliation process, the Commission for Reception, Truth and Reconciliation (usually referred to by its Portuguese acronym, ‘CAVR’), and engaging in selective criminal prosecutions through the Special Panels for Serious Crimes within the District Court of Dili (‘Special Panels’). CAVR was established by UNTAET on 13 July 2001.19 Its purpose was to promote national reconciliation and healing by examining the patterns of violence that occurred between 1974 and 1999.20 CAVR had a dual function: to establish the truth about human rights violations that were committed under Indonesian rule, and to assist with the reintegration into East Timorese society of individuals accused of committing less serious crimes during the conflict.21 To determine whether crimes disclosed during reconciliation were less or more serious, the CAVR exercised a quasi-judicial function.22 To ensure CAVR operated in line with international legal standards, regulations were passed protecting individuals’ rights to legal representation,23 and allowing participants to refuse to incriminate themselves.24 The CAVR’s objective of reintegration was enshrined in its Community Reconciliation Process. The Community Reconciliation

Process allowed perpetrators of less serious crimes to gain immunity from civil and criminal prosecution, on the provision that they assumed responsibility for their actions and carried out community service.25 Inherent in this process was the recognition that in order to prevent future conflict and rebuild local populations, a mechanism was needed to encourage the thousands of East Timorese who had committed acts of violence and fled to West Timor in fear of apprehension, to return to East Timor.26 The Special Panels were established by UNTAET Regulation No. 2000/15 (‘2000/15’). Their mandate was to prosecute ‘serious criminal offences’27 ‘committed… between 1 January 1999 and 25 October 1999’.28 The Panels were a ‘hybrid tribunal’, presided over by two international judges and one East Timorese judge.29 According to Geoffrey Robertson, former President of the Special Court for Sierra Leone, Although the obvious solution was for the Security Council to establish a war crimes tribunal for East Timor, under the Hague umbrella which already covered Yugoslavia and Rwanda, China made clear that in defence of Indonesia’s sovereignty it would veto any such proposal – so none was made.30 Legally, this issue was overcome by 2000/15’s adoption of the text of those Tribunals’ founding statutes. Logistically, however, the disparity in resources and logistical support between the Hague tribunals and the Panels would chronically undermine the latter’s efforts at justice.31 2000/15 confers the Panels with ‘universal jurisdiction’ over genocide, war crimes, crimes against humanity and torture.32 While the validity of universal jurisdiction as a concept remains controversial,33 delimiting its reach to these four crimes is consistent with its traditional exercise.34 Pursuant to this doctrine, section 2.2 establishes the Panels’ jurisdiction over these crimes regardless of the territory on which they were committed, or the nationality of perpetrators or victims. Section 14.3 provides for multiple modes of criminal liability, while section 15 establishes the ‘irrelevance of official capacity’, explicitly denying impunity even to ‘Head[s] of State or Government’. Section 16 applies the doctrine of command responsibility, extending liability for the actions of subordinates to ‘commanders and other superiors’. To the extent that it was consistent with principles of human rights and subsequent UN regulations and East Timorese law, the panels were to

apply the law that operated in East Timor prior to 25 October 1999, mutatis mutandis35, which raised a host of interpretative complications.36 On 20 May 2002, ‘the UN handed over its authority to the new democratic institutions’ of East Timor.37 UNTAET regulations continued to apply until repealed or replaced by Timorese law, and the panels continued to operate under the new Constitution.38 Resolution 1543 mandated the panels’ conclusion, along with UNMISET, in 2005. Their caseload transferred to East Timor’s ordinary courts.39 The work of the Special Panels has been frequently lamented as a lost opportunity, marked by a failure to prosecute Indonesian commanders and commanders of the pro-Indonesian militias.40 The pursuit of accountability was further disabled by legal uncertainties that plagued the courts.41 Despite being rushed, overworked and underfunded, the Special Panels pursued a policy of fullest possible accountability, which resulted in 55 trials involving 87 accused – 83 of whom were convicted – taking place over a period of four years.42

IV. MATERNUS BERE’S ARREST AND RELEASE One alleged perpetrator who was charged but never tried was Maternus Bere. Maternus Bere was a Danki, or Commander, of the Suai43 sub-group of the Laksaur Militia,44 which was formed in April 1999.45 In 2003, he was indicted by the Special Panels for alleged participation in numerous attacks against the civilian population of Cova Lima between 27 January 1999 and 4 September 1999.46 His long list of crimes is purported to have included torture,47 enforced disappearance,48 extermination,49 deportation50 and persecution.51 The indictment on which he was named accuses 14 individuals with a total of 51 charges.52 Such an unwieldy method of charging, impractical for trial purposes, is speculated to have been borne of recognition that a lack of time, political will and resources would limit the prospects of bringing to trial all those who had committed crimes against humanity between January and October 1999.53 The purpose of such indictments may have been to contribute to the conflict’s historical record,54 and to guide East Timor’s ordinary courts in their prosecution of serious crimes after the handover period. Unwieldy as it may have been, the indictment provided the basis for Bere’s arrest in 2009. The indictment is often general in its terms, and it may not meet the standards of evidence seen in international courts and tribunals such as the International Criminal 12


Having settled in West Timor after independence, the CAVR process did not tempt Bere into returning to either clear his name or make peace with his neighbours. But in August 2009, he returned to Cova Lima to attend a religious ceremony.55 He was arrested and incarcerated, before being returned to Indonesian custody by order of Xanana Gusmão, the then Prime Minister of Timor Leste.56 By October, he had returned to Indonesia, where he resumed his career as a civil servant.57 It has been argued by Amnesty International and La’o Hamutuk, an East Timorese NGO, that Bere’s release contravened East Timor’s obligations under the Rome Statute.58 While the release was contrary to that treaty’s normative framework of ending impunity,59 the Rome Statute cannot be applied to this situation. States parties are obliged to co-operate ‘with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’60 However, the International Criminal Court (‘ICC’) can exercise jurisdiction only over crimes committed after the Rome Statute’s entry into force,61 which was on 1 July 2002.62 Having occurred in 1999, the crimes discussed in the Indictment are not within the ICC’s jurisdiction. Nevertheless, Bere’s release was unlawful. Section 160 of East Timor’s Constitution mandates that ‘Acts committed between the 25th of April 1974 and the 31st of December 1999 that can be considered crimes against humanity of genocide or of war shall be liable to criminal proceedings with the national or international courts.’ Bere’s release without trial directly contravenes this provision. Although the President has the power to issue pardons,63 this was neither purported to have been exercised nor applicable, as a pardon presupposes a conviction. The legislative power of the Prime Minister does not extend to the issue of non-statutory ‘orders’.64 According to section 118(3), ‘Court decisions shall be binding and shall prevail over the decisions of any other authority.’ The Panels sat within the District Court of Dili.65 As the Court had issued an arrest warrant, this decision should have prevailed over any orders for Bere’s release issuing from any other authority. Bere’s release was unquestionably unconstitutional.

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V. IMPUNITY – AN AID OR HINDRANCE TO TRANSITIONAL JUSTICE? Maternus Bere was not held accountable through either of the transitional justice mechanisms operating in East Timor. Besides, perhaps, the sympathetic eyes of posterity, his victims have been denied access to justice on any individually experienced level. Bere’s release was reportedly ordered under diplomatic pressure from the Indonesian government.66 Despite political independence, much of East Timor’s fledgling economy depends upon imports from or through Indonesia. It therefore epitomises a broader dilemma facing the nation since independence: the moral, legal and political question of whether and how to weigh access to justice against development. Arguably, the exigencies of international relations and Timor’s economic reliance upon Indonesia demand a more conciliatory approach to its powerful neighbour than would satisfy many notions of justice.67 Accordingly, Indonesia has not extradited any of its citizens indicted by the Panels; nor has this been demanded by East Timorese politicians.68 Of the 373 defendants called before the Panels, 279 remain at large in Indonesia.69 United Nation Development Programme (‘UNDP’) reports from the early years of independence indicated slow progress on key indicators of health and poverty.70 In light of this, the East Timorese Government may be justified in focussing on its political, diplomatic and economic resources rather than transitional justice.71 It should also be noted that 2009, the year of Bere’s return and release, was the first of five-and-a-half consecutive years without widespread bloodshed or political crisis, despite parliamentary and presidential elections having taken place in 2012. Moreover, it is possible that criminal convictions would not serve the interests of East Timorese society more broadly. According to Scheeringa, East Timorese respondents to field research have frequently expressed the importance of ‘leav[ing] the past behind and mov[ing] on.’72 Indigenous notions of justice are further blurred by the widespread opinion that militia members were ‘forced or bribed to commit crimes’, leading to public preference for amnesty for such offenders.73 Indeed, while according to some reports, Bere was attacked upon his return to Suai,74 according to others, he was welcomed.75 Victims’ justice, however, is not always concerned with the immediate priorities of the population at large. It provides individuals with the opportunity for healing

responsible to account has left behind wounds. In the absence of meaningful accountability, they will not heal, and may be inflicted afresh. Image by Hans-Peter Grumpe

Court or the International Criminal Tribunal for Rwanda. It is occasionally unclear in its use of language. Nevertheless, it ties, at numerous points, acts he allegedly committed to recognised crimes against humanity listed in 2000/15.

REFERENCES Henry Cornwell* Combined Law Candidate, UNSW Hannah Lippmann* Combined Law Candidate, UNSW

and closure. As Scheeringa points out, ‘As long as perpetrators of serious crimes remain unpunished, the victims will continue to feel bitter and… put the past before them, and not behind them.’76 Indeed, prosecuting such perpetrators may be essential to the principle of accountability key to building citizens’ faith in democratic institutions. In contravening the Constitution, Xanana Gusmão disregarded the rule of law and undermined the nation’s democratic credibility. Moreover, if impunity is normalised, stable peace may be unattainable.77 On a regional level, as Geoffrey Robertson points out, ‘One consequence of Indonesia’s failure’ to address impunity ‘is that its army commanders continue persecution in West Papua’.78 Providing access to justice for Maternus Bere’s victims would therefore have served more than their interests alone. The unsatisfactory outcome of this predicament is encapsulated in the words of M Cherif Bassiouni. Justice is all too frequently bartered away for political settlements. Whether in international or purely internal conflicts, the practice of impunity has become the political price paid to secure an end to the ongoing violence and repression. In these bartered settlements, accountability to the victims and the world community becomes the object of political trade-offs, and justice itself becomes the victim of realpolitik.79

VI. CONCLUSION Accountability is inextricably linked to peace and reconciliation. For East Timor to develop into a safe and democratic society that gives access to justice for the victims of crimes against humanity, commitment to the rule of law is essential. While the fledgling nation has achieved peace and is on its way to reconciliation, the failure to hold those most

1.

Mahmoud Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’ (2001) 3 The Global Community (Yearbook of International Law and Jurisprudence) 383, 387.

2.

Catherine Gegout, ‘The International Criminal Court: Limits, Potential And Conditions For The Promotion Of Justice And Peace’ (2013) 34(5) Third World Quarterly 800, 801.

3.

Carsten Stahn, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’ (2001) 95(4) The American Journal of International Law 952, 952.

4.

Damien Kingsbury and Michael Leach, ‘Introduction’ in Damien Kingsbury and Michael Leach (eds), East Timor: Beyond Independence (Monash University Press, 2007) 1, 1.

5.

Geoffrey Robinson, ‘If You Leave Us Here, We Will Die’: How Genocide Was Stopped in East Timor (Princeton University Press, 2011) 158.

6.

Stahn, above n 3, 953.

7.

Ben Larke, ‘‘ … And the Truth Shall Set You Free’: Confessional Trade-Offs and Community Reconciliation in East Timor’ (2009) 37(4) Asian Journal of Social Science 646, 653.

8.

SC Res 1264, UN SCOR, 54th sess, 4045th mtg, UN Doc S/ RES/1264 (15 September 1999), authorised the establishment of a multinational force under Ch VII of the UN Charter.

9.

SC Res 1272 UN SCOR, 4057th mtg, UN Doc S/RES/1272 (25 October 1999); Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2nd ed, 2010) 189.

10. Bassiouni, above n 1, 384. 11.

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’) Preamble.

12. Bassiouni, above n 1, 398. 13. Rome Statute, above n 11, Preamble. 14. Jeremy Rabkin, ‘No Substitute for Sovereignty’ in Edel Hughes, William A Schabas and Ramesh Thakur (eds), Atrocities and International Accountability: Beyond Transitional Justice (United Nations University Press, 2007) 98, 116. 15. Alette Smeulers, ‘Review Essays – Punishing the Enemies of All Mankind’ (2008) 21 Leiden Journal of International Law 971, 988. 16. Edel Hughes, William A Schabas and Ramesh Thakur, ‘Introduction’, in Edel Hughes, William A Schabas and Ramesh Thakur (eds), Atrocities and International Accountability: Beyond Transitional Justice (United Nations University Press, 2007) 2. 17. Ibid. 18. Ibid. 19. SC Res 1272, UN SCOR Regulation 2001/10 pursuant to SC Res 1272 UN SCOR, 4057th mtg, UN Doc S/RES/1272 (25 October 1999). 20. UNTAET/REG/2001/10 (13 July 2001). 21. Stahn, above n 3, 952. 22. Section 25.3 of UNTAET/REG/2001/10 (13 July 2001) provides that

14


‘the power of the Office of the General Prosecutor to institute criminal proceedings is stayed in relation to acts which are the subject of a Community Reconciliation Process,’ once the commission has delegated the community reconciliation to a regional commissioner.

48. Ibid Count 12. 49. Ibid Count 27. 50. Ibid Count 50. 51. Ibid Count 51.

23. UNTAET/REG/2001/10 (13 July 2001) ss 18.1, 18.3.

52. Indictment.

24. See UNTAET/REG/2001/10 (13 July 2001) s 17.1.

53. de Bertadano, above n 36, 911.

25. Stahn, above n 3, 964.

54. Ibid 912.

26. Ibid 967.

55. Lindsay Murdoch, ‘How an Alleged War Criminal in East Timor Escaped Justice’, Brisbane Times (online), 5 November 2009 <http:// www.brisbanetimes.com.au/opinion/politics/how-an-alleged-warcriminal-in-east-timor-escaped-justice-20091105-hyn1.html>.

27. 2000/15 s 1.1. 28. 2000/15 s 2.3. 29. Geoffrey Robertson, Crimes Against Humanity (Penguin Books, 4th ed, 2012) 591. 30. Ibid. 31. David Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (East-West Center Special Reports No 9, June 2006) 18–25. 32. 2000/15 ss 2.1, 2.2, 10.1(a), (b), (c), (f). 33. Cryer et al, above n 9, 50; A Hays Butler, ‘The Doctrine of Universal Jurisdiction: A Review of the Literature’ (2000) 11 Criminal Law Forum 353. 34. Cryer et al, above n 9, 50; Institut de Droit International, Seventeenth Commission: Universal Jurisdiction over Genocide, Crimes Against Humanity and War Crimes (2005) 2; Prosecutor v Furundžija (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-17/1, 10 December 1998) [156].

56. Ibid. 57. Gordon Peak, ‘The Two Reckonings of Maternus Bere’, The Interpreter: Lowy Institute for International Policy (online), 23 February 2012 <http://www.lowyinterpreter.org/post/2012/02/23/ The-two-reckonings-of-Maternus-Bere.aspx>. 58. Amnesty International, ‘Timor-Leste Law Allows Amnesties for War Criminals’ (online), 28 June 2010 <http://www.amnesty.org/ en/news-and-updates/report/timor-leste-law-allows-amnestieswar-criminals-2010-06-28>; La’o Hamutuk ‘Maternus Bere indicted for Crimes Against Humanity in Suai Church Massacre and other Laksaur Militia activities: Arrested by PNTL, Then Released to Indonesia by Timor-Leste Political Leaders’ (online), 13 November 2009 <http://www.laohamutuk.org/Justice/99/ bere/09MaternusBere.htm>. 59. Rome Statute, above n 11, Preamble. 60. Ibid Art 86.

35. UNTAET/REG/1999/1, ss 2–3; 2000/15 s 2.4.

61. Ibid Art 11(1).

36. See Butler, above n 33; The Prosecutor v Armando dos Santos (Decision) (District Court of Dili Special Panels for Serious Crimes, Case No 16/2001, 15 July 2003); Sylvia de Bertadano, ‘Current Developments in Internationalized Courts: East Timor – Justice Denied’ (2004) 2 Journal of International Criminal Justice 910, 917.

62. Cryer et al, above n 9, 169. 63. Constitution of the Democratic Republic of East Timor s 85(i). 64. Ibid ss 95, 96. 65. 2000/15 s 1.1.

37. Cryer et al, above n 9, 192.

66. Murdoch, above n 55.

38. Ibid.

67. Sandra Scheeringa, ‘Enhancing the Local Legitimacy of Transnational Justice Institutions: Local Embeddedness And Customary Law in CAVR’ in Damien Kingsbury and Michael Leach (eds), East Timor: Beyond Independence (Monash University Press, 2007) 132, 132.

39. Cohen, above n 31, 91–4. 40. Robinson, above n 5, 214. 41. For instance, in order to be consistent with international law, subsequent UN regulations and East Timorese law, the panels were to apply the law that operated in East Timor prior to October 25, 1999, mutatis mutandis. While this was initially believed to be Indonesian law, in July 2003 the Court of Appeal’s decision in dos Santos held that, due to the fact the Indonesian occupation was unlawful, Portuguese law was to be applied instead. Statutory intervention was required to correct the confusion that ensued, and the legal intrigue that followed impaired the credibility of the Special Panels in the eyes of many. The Special Panels achievement of ‘justice’ was arguably correlative to the resources invested in it, which was very little. 42. Ibid. 43. Suai is a sub-district of the district of Cova Lima, on the south coast of East Timor. It is not far from the border with West Timor, an Indonesian province. 44. The Deputy General Prosecutor For Serious Crimes v Egidio Manek (Indictment) (District Court of Dili Special Panels for Serious Crimes, Case No 09/CG/TDD/2003, 28 February 2003) (‘Indictment’) [16]. 45. Ibid [12]. 46. Ibid. 47. Ibid Count 8, 22.

15

68. Suzannah Linton, ‘Prosecuting Atrocities at the District Court of Dili’, (2001) 2(2) Melbourne Journal of International Law 414, 456. 69. Kelly Askin, Stefanie Frearse and Sonja Starr, Unfulfilled Promises: Achieving Justice for Crimes Against Humanity in East Timor (Open Society Institute and the Coalition for International Justice, 2004) 34. 70. See UN Development Programme, Human Development Report 2006 (Oxford University Press, 2006); UN Development Programme, Human Development Report 2009 (Oxford University Press, 2009). 71. UN Commission on Human Rights, Situation of Human Rights in East Timor, UN GAOR, 53rd sess, 16th mtg, E/CN4/RES/1997/63 (16 April 1997) 13. 72. Scheeringa, above n 67, 135. 73. Ibid. 74. Murdoch, above n 55. 75. Peak, above n 57. 76. Scheeringa, above n 67, 138. 77. Ibid. 78. Robertson, above n 29, 595. 79. Bassiouni, above n 1, 386.

Looking Across The Tasman: Treaty, Not Federation! George Fermanis*

I . INTRODUCTION In ending patterns of exclusion and discrimination in Australia and accessing justice for Indigenous Australians, a treaty always struck me as an interesting idea. How would it work? Could it? From analysing other countries’ treaty experiences, we can anticipate a range of specific technical and procedural issues. But I think the most interesting idea about a treaty is its ability to introduce notions of rights and sovereignty into the dialogue between Indigenous and non-Indigenous people in a way that can affect the outcomes of that discussion. This article is a brief overview of how the Treaty of Waitangi has similarly impacted notions of ‘rights’ in the dialogue between Indigenous and non-Indigenous peoples, in the contexts of alternative dispute resolution, selfdetermination, and land rights. Australia can learn much from this.

II. THE TREATY OF WAITANGI The Treaty of Waitangi or te Teriti o Waitangi (now ‘Treaty’) was signed in 1840 by over 500 Maori Chiefs, with Captain William Hobson representing the Crown.1 However, there was always an uncertainty over what was agreed to, because the document’s three articles were expressed in both English and Maori. To the English, Article 1 entails that the Maori ceded to the Crown all the rights and powers of sovereignty, absolutely and without reservation. To the Maori,

Article 1 meant that only Crown governance was conceded, and that sovereignty (tino rangatiratanga) was retained over their treasures (taonga).2 Regarding Article 2, the English believed this meant that the Maori still retained full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties. To the Maori, Article 2 also granted the Maori the accompanying natural resources along with these lands.3 To both parties, Article 3 granted the Maori the same rights and privileges as British citizens living in Aotearoa/ New Zealand.4 However, by the late 1870s, the Treaty was declared a ‘simple nullity’ by the High Court.5 This followed decades of cultural genocide post-signing conducted through law,6 evangelism,7 and warfare.8 The Treaty was no longer a ‘simple nullity’ after the Waitangi Tribunal was established by the Treaty of Waitangi Act 1975 (NZ),9 mainly due to the efforts of Hon Matiu Rata of the Labour Party.10 The Tribunal considers claims where Maori have been prejudicially affected by legislation, Crown Policy or practice; and generally only makes non-binding recommendations to the Crown.11 Judge Durie stresses that the Tribunal is bicultural in composition and modus operandi,12 since it provides for cultural and spiritual redress for historical violations.13 In 1985, the Tribunal’s jurisdiction was extended to cover claims on or after 6 February 1840, in a context of rising Maori protest.14 By 1986, this development was supported by Treaty jurisprudence. For instance, regarding section 9 of the State Owned Enterprises Act 1986 (NZ), in the Court 16


of Appeal in 1987, Cooke P concluded that the duty to observe Waitangi’s principles,15 as the Act demanded, was ‘not a light one’,16 and ‘infinitely more than a finality’.17 This was not easily avoided; the Treaty was an ‘embryo’ whose principles could not be frozen in time.18 With over thirty or so statutes enacted with reference to the Treaty since 1975,19 the Treaty and tikanga Maori (Maori law) began to affect so many government departments.20 It now occupied a ‘legal shadowland’ in New Zealand’s unwritten constitution.21 This took place in a turbulent context of increasing Maori resentment,22 and the introduction of native title into common law.23

by non-Indigenous administration,34 and caused great socio-economic disadvantage.35 In 2005, the gap in life expectancy between Indigenous and non-Indigenous Australians was 11.5 years for men and 9.7 years for women.36 Australia is the only Commonwealth nation without a treaty with its Indigenous peoples.

III. BACK TO AUSTRALIA

What New Zealand shows is that while debates over sovereignty go on (as they do), the choice can be made to re-negotiate or revisit the fundamental settlement between peoples.37 Australia has avoided this. In fact, the two were conflated when John Howard said on 29 May 2000: ‘A nation … does not make a treaty with itself’, even when a conception of Indigenous sovereignty meant simply inherenting authority and independence.38

In contrast, while agreement-making is now a feature of the Australian policy landscape,24 our historical experience of treaties is limited.25 Only the 1835 Batman Treaty comes to mind.26

IV. ALTERNATIVE DISPUTE RESOLUTION: TREATIES AND BARGAINING POWER

By treaty, I mean a political or legal agreement between governments and Indigenous peoples, which involves three things: •

A starting point of acknowledgment;

A process of negotiation; and

Outcomes in the form of rights, obligations and opportunities.27

That being said, in 1979, the National Aboriginal Conference called for a ‘Treaty of Commitment’ (later ‘Makarrata’) to be negotiated between the Commonwealth and the Aboriginal people.28 The issue again arose with the Barunga Statement in 1988,29 and the Council for Aboriginal Reconciliation’s final report in 2000.30 Why should we care? We should care because Australia’s laws have created patterns of exclusion and discrimination towards our Indigenous peoples.31 And a treaty, like constitutional change, presents a way to end this pattern. Consider our founding document, the Australian Constitution. Indigenous Australians were not involved in its drafting. Its provisions reflected a disbelief in their long-term future in Australia, consistent with the doctrine of ‘terra nullius’, which was only overturned in 1992.32 Despite the 1967 Referendum deleting section 127 (a racist provision), now Indigenous Austrailans are not mentioned anywhere in the Constitution. In practice, all of this has promoted their exclusion from public institutions,33 the imposition of Indigenous policy 17

‘Alternative dispute resolution’ or ‘ADR’ has an essential role in dealing with Indigenous rights claims, because it allows parties to work collaboratively and determine their own procedural values and substantive considerations.39 More Indigenous rights claims are dealt out of court than in court.40 More importantly for Indigenous rights claims, ADR considers the relationship between the parties,41 alleviates the deficiencies of judicial remedies (like evidential complexity and incorporating oral evidence),42 and provides a forum free from colonial history.43 In Australia, depending on the type of dispute, federal legislation requires the Crown to enter either negotiation or mediation.44 A treaty between governments and Indigenous peoples can strengthen the power of Indigenous peoples within such processes of negotiation, so mutual goals rather than imposed goals can be advanced.45 Treaties do this by making sure that there is more accountability by governments for the promises made in treaty documents.46 This is relevant because in Australia and New Zealand, power seems heavily tipped in favour of the Crown because both countries’ minorities do not enjoy constitutional protection, leaving legislation as an alternative.47 Legislation can also override rights recognised by the courts. However, politically and numerically, the Maori are a stronger minority.48 Yet a treaty can help. Insofar as the Tribunal is a respected neutral body and embodiment of tikanga Maori and the Treaty,49 power is tempered by accommodating Indigenous values and culture in the

negotiation process.50 New Zealand adopts a direct negotiation model, where negotiations begin only after claims are filed with an independent tribunal which has the power to hold hearings and make recommendations about the merits and implications of claims.51 For claims between the Crown and Maori, this meshes the Waitangi Tribunal closely with negotiation.52 It judges a claim’s validity by a culturally neutral standard.53 That is, claims that one party has violated the principles of a Treaty agreed to by both, so both the Maori and English texts are valued. In contrast, Australia only draws concepts from the dominant settler legal system.54 For instance, Indigenous claimants feel disadvantaged under adversarial and ‘alien concepts’ of rights, when the Australian Federal Courts determine whether meditation is appropriate.55 Indeed, the breadth of the Waitangi Tribunal’s mandate to review its breaches also leads to a wider range of outcomes than in Australia, which can better accommodate the needs of the dispute.56

V. SELF-DETERMINATION: TREATIES AND CO-MANAGEMENT A treaty can give rise to stronger and more capable institutions of Aboriginal governance.57 Aboriginal governance – governance is, who has influence, who decides, and how decision makers are held accountable58 - is essential to recognising Indigenous peoples’ right to self-determination.59 Self-determination is not necessarily secession,60 but rather the ‘freedom to determine their political status and freely pursue their economic, social and cultural development’.61 By contrast, what we tend to see today, at best, is only consultation with Aboriginal people.62 Self-determination is important because it promotes economic prosperity,63 better community mental health,64 and better leader accountability.65 Leaders are more likely to produce decisions ‘in tune with the cultural values of the community’.66 ‘Selfdetermination’ is dynamic,67 and is about creating a harmony between Indigenous and non-Indigenous communities, necessary for the functioning of society,68 not a particular institutional relationship.69 Putting this in practice takes many different forms. Self-administration and self-management, as has occurred in Australia (under Aboriginal and Torres Strait Islander Commission) is one,70 and setting aside seats for Indigenous voters (New Zealand set four aside in 1867) is another.71 However, this article will mainly focus on the co-management and joint management self-determination model.

Co-management and joint management is where a commission or board is established with both Indigenous and government appointees to facilitate collaborative relationships.72 This is a necessity because Indigenous communities often need access to land beyond what they have been allocated.73 Co-management is acknowledged to be a softer model of sovereignty: final decisions often remain with government, who generally loath acknowledging Indigenous consent.74 The co-management model in Tongagiro National Park (established 189475) in New Zealand demonstrates the impact of the Treaty in promoting Indigenous self-determination and participation. Ruru terms it a significant ‘mind-shift’ from monetary gain through tourism.76 Tongagiro is a volcanic mountain that lies in the middle of the North Island and its peak is sacred to the Ngati Tuwharetoa iwi,77 because mountains are tupuna (ancestors).78 Mountains are mainly managed by the National Parks Act 1980 (NZ) and the Conservation Act 1987 (NZ).79 Section 4 of the Conservation Act 1987 (NZ) states that: ‘This Act shall so be interpreted and administered as to give effect to [the Treaty’s] principles’.80 In recent years, the Treaty mention in statute has compelled the Department of Conservation and other associated bodies with national park management responsibilities to contextualise that direction.81 Besides partnerships (arguably narrower

... the absence of constitutional protections for Indigenous land rights ...means that there are no domestic legal impediments to extinguishment or infringement of those rights by legislatures that have constitutional authority over them.

” 18


than hoped) like committing staff to undertake Maori cultural and language training,82 positive trends have occurred with regard to national park management plans.83 For instance, 2003 draft plans for the Tongariro, contain extensive reference to Treaty principles and how they should be applied. For example, it lists ‘development issues’ which need to be ‘resolved to the satisfaction of iwi and the department’.84 Despite falling short of Australia’s co-management,85 and giving equal recognition to the Maori environment management ethic,86 it is dramatic progress. In Australia, there have been extensive negotiations over the joint management of parks. Consider the Uluru-Kata Tjuta National Park and the Anangu community.87 Hopefully through a Treaty, Australia can have its own unforeseen progressions in its current models.

VI. TREATY INFLUENCE ON EXECUTING INTERNAL SELF-GOVERNANCE As well as covering interactions with the nation-state, self-determination also encompasses how the Indigenous community manages itself internally.88 New Zealand’s increasing acceptance of the value of cultural norms, as caused by the Treaty, have put it one step ahead to the challenge of reconciling best practices in both Indigenous and non-Indigenous cultures to determine self-governance. For instance, tikanga Maori references have been applied consciously for the resolution of disputes in the charters of Maori governance entities like the Wakutu Incorporation and the Te Runanga a Iwi O Ngaphui.89 While cultural mismatches can be exploited, or an awkward fit, this type of application is a step in the right direction.90 The acceptance of Maori norms is caused by the incorporation of the Treaty in wider society and government departments. In fact, judges have been prepared to apply Maori custom even without a statutory reference, where custom is a relevant fact or the Treaty of Waitangi is a relevant consideration, forming the basis of fishing rights and title in land.91 However, this introduces new, unavoidable issues, like clearly defining such concepts for the purpose of commercial certainty.92 Also, whereas Western culture tends to make a clear distinction between morality and the law, the Maori legal system sees values, practices and rules as being very much interrelated (despite Western values obviously also being values based).93 For instance, good Maori governance principles include aroha and 19

In New Zealand however, the 1840 Treaty of Waitangi begins a series of jurisprudence so land rights include those of ‘traditional law and customs’ as well as those ‘under [Maori] custom and usage’, encompassing tikanga Maori.106 As explained, the English version of the Treaty guaranteed the Maori ‘the full exclusive and undisturbed possession’ of land and resources,107 which was affirmed in Queen v Symonds in 1847.108 The idea of Maori ‘custom and usage’ was affirmed by the NZ Court of Appeal in Attorney-General v Ngati Apa,109 after the Privy Council challenged it in Nireaha Tamaki v Baker.110 Moreover, it does not appear to be necessary in New Zealand to prove continuous observance of tikanga Maori from the time of British assertion of sovereignty to the present.111

rangatiratanga, which mean ‘charity, generosity’ and ‘effective leadership’ respectively.94 In contrast, Australia often draws upon the federal nature of the Commonwealth Constitution as its major example of ‘legal pluralism’.95 Despite federalism containing structural features like a sharing of power, it remains a weak form of legal pluralism as both arms of the federation remain components of a single order.96 Interestingly, in New Zealand, having a single government with which to negotiate rights can have advantages, like when the claim to rights is a single claim over the whole of the State.97

VII. TREATIES AND SOURCES OF INDIGENOUS LAND RIGHTS In Australia, as per section 223(1) of the Native Title Act 1993, Indigenous laws and customs at the time of Crown acquisition of sovereignty have to be maintained to the present day to confirm native title.98 This is the ‘doctrine of continuity’. The Act adopts Justice Brennan’s statements in Mabo.99 Prior to Mabo, only legislation was judicially acknowledged as providing Indigenous land rights,100 supporting its effective denial in Milirrpum v Nabalco Pty Ltd.101 In practice however, the ‘doctrine of continuity’ has limited the content of rights to only specific laws and customs.102 Strange results eventuate: it avoids acknowledging the unavoidable change to customs, caused by time or dispossession.103 Post-Mabo, native title does not distinguish between Aboriginal title and other Aboriginal land rights.104 In the event of a conflict, the third party interests generally prevail.105

Regarding extinguishment, however, the Treaty’s role in protection should not be overstated. This is because the absence of constitutional protections for Indigenous land rights in both countries, unlike Canada,112 means that there are no domestic legal impediments to extinguishment or infringement of those rights by legislatures that have constitutional authority over them.113 For instance, in 2004, the New Zealand Parliament enacted the Foreshore and Seabed Act (NZ),114 extinguishing most Maori Rights to coastal lands. United Nations institutions had little binding power,115 or persuasive value,116 especially against a unicameral parliament.117 Similarly, it is suggested the Howard government legislated away Indigenous rights by ‘‘constantly rationali[sing]’ it as ‘impediments to the free working of market forces’.118

VIII. CONCLUSION While a treaty is only a piece of the puzzle, and great socio-economic disadvantage still remains in both countries’ Indigenous communities; a treaty is certainly a neat way to address the practical, day-to-day issues of co-existence. Australia can learn a great deal from New Zealand’s treaty experience and the way it has affected conceptions of land-rights, bargaining power imbalances, and effective self-determination. Our Trans-Tasman rivalry in all things should be a great motivator!

REFERENCES George Fermanis* Combined Law Candidate, UNSW 1.

Treaty of Waitangi Act 1975 (NZ) sch 1.

2.

Ibid.

3.

Ibid.

4.

Ibid.

5.

Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, 78.

6.

See New Zealand Settlements Act 1863 (NZ), and Suppression of Rebellion Act 1863 (NZ).

7.

James Belich, ‘The Governors and the Maori (1840–72)’, in Keith Sinclair (ed), The Oxford Illustrated History of New Zealand (Oxford University Press, 2nd ed, 1996) 80.

8.

See James Belich, The New Zealand Wars (NZ Penguin, 1998).

9.

Treaty of Waitangi Act 1975 (NZ) s 6.

10. Jacinta Ruru, ‘The Ma–ori Encounter with Aotearoa: New Zealand’s Legal System’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 119 (‘The Ma–ori Encounter with Aotearoa’). 11.

Dora Alves, The Maori and The Crown: An Indigenous Peoples Struggle for Self-Determination (Greenwood Press, 1999) 60.

12. Ibid. 13. Ruru, The Ma–ori Encounter with Aotearoa, above n 10, 120. 14. See Bastion Point: Day 507 (Directed by Merata Mita, Awatea Films, 1980). 15. NZ Maori Council v Attorney-General [1987] 1 NZLR 641, 667. 16. Ibid. 17. Ibid 863. 18. See Attorney-General v New Zealand Maori Council (No 2) [1991] 2 NZLR 147. 19. Jacinta Ruru, ‘Indigenous Peoples’ Ownership and Management of Mountains: The Aotearoa/ New Zealand Experience’ (2004) 3 Indigenous Law Journal 111, 120 (‘Indigenous Peoples’ Ownership and Management of Mountains’). 20. Ibid 122. 21. Sean Brennan et al, Treaty (The Federation Press, 2005) 97. 22. Ruru, The Ma–ori Encounter with Aotearoa, above n 10, 125; Ranginui Walker, Ka Whawahi Tonu Matou. Struggle without End (Penguin Books, 1990) 12. 23. Ruru, The Ma–ori Encounter with Aotearoa, above n 10, 126; Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. 24. Expert Panel on Constitutional Recognition of Indigenous Australians, ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’ (Report, January 2012) 195 (‘Expert Panel’). 25. Ibid 191. 26. Ibid. 27. These ideas are developed in Brennan et al, above n 21, ch 1. 28. Expert Panel, above n 24, 192. 29. Ibid 193. 30. Ibid 194. 31. George Williams, ‘Does True Reconciliation Require A Treaty?’ (2014) 8 Indigenous Law Bulletin 3, 4. 32. Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’). 33. Jennifer Clarke, ‘Australia: The White House with Lovely Dot Paintings whose Inhabitants Have ‘Moved On’ from History?’, in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 95.

Detail from ‘Governor Davey’s Proclamation to the Aborigines,’ 1830

34. Ibid 99.

20


35. Expert Panel, above n 24, 40.

above n 19, 133.

36. Ibid 314.

77. Ibid 122.

37. Sean Brennan et al, ‘‘Sovereignty’ and its Relevance to Treaty-Making between Indigenous Peoples and Australian Governments’ (2004) 26 Sydney Law Review, 307, 351.

78. Ibid 114.

38. Ibid 314, 372. 39. Michael Coyle ‘ADR Processes and Indigenous Rights: Comparative Analysis of Australia, Canada and New Zealand’, in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 374; Ibid.

79. Ibid 128. 80. Conservation Act 1987 (NZ) s 4. 81. Ruru, Indigenous Peoples’ Ownership and Management of Mountains, above n 19, 132. 82. Ibid 131. 83. Ibid 132. 84. Ibid 133.

40. Ibid 372.

85. Ibid.

41. Ibid 387.

86. Ibid 136.

42. Ibid; Brennan et al, above n 21, 99.

87. Imai, above n 65, 304.

43. Coyle, above n 39, 373.

88. Ibid 306.

44. Ibid, 387, 390.

89. Joseph, above n 58, 12–13.

45. Brennan et al, above n 21, 99; ibid 392.

90. Ibid 14.

46. Coyle, above n 39, 393.

91. Ibid 12–13.

47. Ibid 390, 397.

92. Ibid.

48. Ibid 392.

93. Ibid 8.

49. Ibid 393.

94. Ibid 10.

50. Ibid 397. 51. Ibid 393.

95. Alexander Reilly, ‘A Constitutional Framework for Indigenous Governance’ (2006) 28 Sydney Law Review 403, 411.

52. Ibid 393.

96. Ibid 412.

53. Ibid 397.

97. Ibid 414.

54. Ibid 398.

98. Amended by the Native Title Amendment Act 1998 (Cth) and the Native Title Amendment Act 2007 (Cth).

55. Ibid 393. 56. Ibid 394. 57. Williams, above n 31, 3. 58. Robert Joseph, ‘Contemporary Maori Governance: New Error’ (2005) University of Waikato 2. 59. Ibid 5–7. 60. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002 (Report, Human Rights and Equal Opportunity Commission, 21 January 2003) 25. 61. Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 458; United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st Session, 107th plen mtg, Agenda Item 68, UN Doc A/ RES/61/295 (2 October 2007, adopted 13 September 2007). 62. Williams, above n 31, 4.

99. (1992) 175 CLR 1. 100. Kent McNeil ‘Judicial Treatment of Indigenous Land Rights in the Common Law World’, in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009), 263 (‘Judicial Treatment of Indigenous Land Rights’). 101. (1971) 17 FLR 141. 102. McNeil, Judicial Treatment of Indigenous Land Rights, above n 100, 270. 103. Ibid. 104. Ibid. 105. Ibid. 106. Ibid 265; see K McNeil, ‘Legal Rights and Legislative Wrongs: Maori Claims to the Foreshore and Seabed’, in Andrew Erueti and Claire Charters (eds), Maori Property Rights in the Foreshore and Seabed: The Last Frontier (Victoria University Press, 2007) 83.

63. The Harvard Project on American Indian Economic Development, Overview <http://hpaied.org/about-hpaied/overview>.

107. Treaty of Waitangi Act 1975 (NZ)

64. Ibid.

109. [2003] 3 NZLR 643.

65. Shin Imai, ‘Indigenous Self-Determination and the State’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 289.

110. [1901] AC 561.

66. Ibid 309. 67. Ibid 292. 68. Ibid. 69. Ibid.

108. [1840–1932] NZPCC 387.

111. Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008) 172–5. 112. Constitution Act 1867, 30 and 31 Vict, c 3 (UK). 113. McNeil, Judicial Treatment of Indigenous Land Rights, above n 100, 279. 114. Foreshore and Seabed Bill (10 July 2014) <http://beehive.govt.nz/ foreshore/129bar1.pdf>.

71. Ibid 304.

115. Elizabeth Evatt, ‘Realising Human Rights: Utilising UN Mechanisms’, in Sam Garkawe, Loretta Kelly and Warwick Fisher (eds), Indigenous Human Rights (Southwood Press, 2001) 181.

72. Ibid 301.

116. Ibid.

73. Ibid.

117. McNeil, Judicial Treatment of Indigenous Land Rights, above n 100, 283.

74. Ibid 302.

118. Deirdre Howard-Wagner, ‘Legislating away Indigenous Rights’ (2008) 12 The Protection of Law 44, 63.

70. Ibid 299.

75. See Tongagiro National Park Act 1894 (NZ). 76. Ruru, Indigenous Peoples’ Ownership and Management of Mountains,

21

Access to Justice: How Much Do We Really Care? Luke Griffin*

The access to justice debate is dominated by the overwhelming cost of legal services. Legal aid, community legal centres and pro bono services have been described as ‘current but incomplete answers’ to the problem.1 Proponents of economic rationalism support the use of litigation funders; the NSW government recently increased court costs to encourage people to choose alternative dispute resolution (ADR) over litigation, and courts will refer matters to mediation wherever possible to minimise their case load.2 All of these solutions attract varying degrees of controversy within the legal profession. However, even the staunchest ideological opponents seem to agree on one thing: if people want access to justice they will have to go through a lawyer first. There are, however, other considerations beyond adding more lawyers. Access to information and legal empowerment both play an important role in promoting access to justice.

I. ACCESS TO JUSTICE MEANS ACCESS TO INFORMATION The rapid decline of the newspaper industry shows how difficult it can be to capitalise on information that is already available to the general public. Similarly, if people already knew how to solve their own legal problems they would have no reason to pay for professional advice. According to Barendrecht, the legal profession has managed to overcome this problem by selling information ‘in the form of tailor made advice … which makes it more difficult to copy, or by combining it with carrying out the advice.’3

Complexity is a common justification for this practice – the legal system is so complex that people need help understanding the law and navigating it. Although this is true in many circumstances, it is not a valid justification for a number of reasons. First, many problems that the legal system deals with are actually uncomplicated issues with simple solutions. Second, simple issues are often obfuscated by lawyers.

1. Uncomplicated legal problems are encountered on a regular basis.4 Legal advice is typically sought after an issue has escalated to an intolerable level. This makes it more difficult to resolve than if it was dealt with earlier. Moreover, people often recognise that an injustice has occurred but ‘do not see it as a matter for which the law can provide redress’.5 A national survey in Britain found that consumers ‘lack a rudimentary knowledge of their legal rights, and are ignorant of official bodies, such as consumer agencies, which may be able to assist them.’6 This research provides a strikingly accurate depiction of Australian consumers, even though the survey was carried out four decades ago. Mobile phone companies, for example, charge excess data fees at a rate that is several thousand times above market value and habitually fail to notify customers who are about to exceed their limit. Approximately 80 per cent of people who complain to the Telecommunications Industry Ombudsman (TIO) will have this issue resolved after the initial phone call; yet a majority of people have either never heard of the TIO or are unaware of its regulatory power.7 22


opponents seem to agree on one thing: if people want access to justice they will have to go through a lawyer first.

” It is not just the private sector that exploits people’s general lack of understanding about their own legal rights. The police will issue a hefty fine and a 3 month licence suspension for particular driving offences. This automatically results in an additional fine and suspension from the Roads and Maritime Services (RMS) under its demerit point scheme.8 The select few who have enough time and patience to take this matter to their local court will discover that the penalty issued by the RMS is unenforceable because it breaches the double jeopardy rule.9 The penalty can also be reduced by seeking an internal review, but this is likely to be done under the pretence of clemency rather than an acknowledgment that the penalty was issued without lawful authority. These examples demonstrate how an understanding of basic legal principles and mechanisms can provide access to justice by balancing ‘the skewed distribution of power’ that is frequently responsible for creating conflicts within society.10 Research that was conducted in five countries consistently showed that the power imbalances that exist in important relationships (including lawyer-client relationships) were responsible for generating ‘disbelief in perceived personal capabilities for using the law to solve problems’.11 Lawyers fail to effectively address this problem because they focus on the remedy stage of a dispute. Gramatikov and Porter argue that this ‘is a form of treating the symptoms [of injustice] and overlooking the causes of the disease’.12

23

2. Lawyers create the complexity and then charge people for a simple explanation. There is a viable argument that professional advice is not needed to resolve summary offences and consumer law violations because they are relatively simple matters. According to McBarnet, however, ‘minor offences are characterised by simple facts and straightforward cases because lawyers are so rarely involved.’13 Both of the examples discussed above could be easily obfuscated by considerations of statute and case law. If, for example, the issue of excess data fees were the subject of litigation, lawyers would carefully dissect the contract to assess whether the terms could be considered unusual or onerous. Both parties would also need lawyers to construct persuasive arguments about the specific knowledge and notice requirements of the transaction by examining the circumstances in painstaking detail. The outcome might turn on whether the red hand rule is satisfied if a salesperson says that excess data will by charged at 5.2c/MB; or whether sending an email notification to customers when they exceed their data limit amounts to reasonably sufficient notice. These issues were entirely constructed by the legal profession through the common law. Given the significant complexity this creates, it is not hard to understand why so many people assume that the law cannot provide redress to their problems. Simply finding new ways of increasing the availability of lawyers or reducing the cost of litigation does not

Drei Anwälte im Gespräch by Honoré Daumier, 1843-1848

“...even the staunchest ideological

improve access to justice because it ‘ignore[s] the much more fundamental structural and ideological realities which lie behind the courtroom situation.’14 This does not mean that lawyers do not have an essential role to play. After all, the ability for one person to avoid the effect of a widespread injustice does not amount to a just outcome. Complaining to the TIO or seeking a review of an RMS penalty does nothing to prevent these things from continuing to affect other people. It may, therefore, be argued that access to justice in such matters can only be achieved through the judicial process because a judgement can publicly declare that the conduct is unlawful and make such orders that are necessary for it to discontinue; in addition to providing a remedy to the complainant. However, this overlooks the practical realities of litigation where complaints can be easily ‘bought off’ in out-of-court settlements by an offending party so as to avoid an unfavourable judgment.15 This is also true of representative proceedings which were intended, inter alia, to provide access to justice by making litigation a financially viable option for people with relatively minor claims.16 Finkelstein J explains that representative proceedings usually end with a settlement, rather than a judgement ‘because of the uncertainty of their result, difficulties of proof, complexities in the assessment of damages, as well as the expense of a long trial’.17

II. LEGAL EMPOWERMENT Legal empowerment is broadly defined as ‘the process through which the poor become … enabled to use the law to advance their rights and their interests [in] the state and in the market’.18 The notion that people cannot successfully comprehend or navigate the legal system without formal training or access to legal advice does not hold up to scrutiny. Although education and financial status are strongly correlated with the ability to invoke the law, it is by no means an essential requirement. The defining characteristic appears to be whether the litigant has had some prior experience in dealing with the legal system. This leads to ‘better record keeping, more anticipatory or preventative work, more … skill in pertinent areas, and more control over counsel’.19 Prior experience, even in relatively minor areas, has also been shown to enhance procedural justice, as people are more likely to know what will happen in the process.20 Unsurprisingly, the opposite appears to be true for people whose first experience in dealing with the legal system

involves a serious issue that is not easily resolved. This tends to result in the lawyer ‘tak[ing] over the process from the client, negotiating with [opposing counsel] and only asking the client for consent to the deal.’21

III. CONCLUSION In the previous edition of Court of Conscience, Michael Legg stated that ‘the main obstacle to access to justice in 2013 is cost.’22 I respectfully disagree. The main obstacle – then, and now – is the legal profession and the monopoly it has on information. REFERENCES Luke Griffin* Juris Doctor Candidate, UNSW 1.

Michael Legg (ed) The Future of Dispute Resolution (Lexis Nexis, 2013) 4.

2.

Michael Legg ‘Federal Courts Fees Up – Access to Justice Down’ [2013] Court of Conscience 7, 38; See also Higgins v Higgins [2002] NSWSC 455 (Austin J).

3.

Maurits Barendrecht, ‘Legal Aid, Accessible Courts or Legal Information? Three Access to Justice Strategies Compared’ (Working Paper No 010/2010, Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems, 10 November 2010) 12.

4.

Paula Baron and Lillian Corbin, Ethics and Legal Professionalism In Australia (Oxford University Press, 2014) 207.

5.

Roger Cotterrell, The Sociology of Law: An Introduction (Oxford University Press, 1992) 250.

6.

Ross Cranston, Regulating Business: Law and Consumer Agencies (McMillan, Oxford Socio-legal Studies, 1979) 5.

7.

Telecommunications Industry Ombudsman, ‘2012-2013 Annual Report: An Independent Voice’ (2013) 17, 50.

8.

Roads and Maritime Services, Government of New South Wales, Demerit Points Scheme (31 December 2013) <http://www.rms.nsw. gov.au/usingroads/penalties/demeritpoints/index.html>.

9.

Road Transport Act 2013 (NSW) s 181.

10. Martin Gramatikov and Robert B Porter, ‘Yes I Can: Subjective Legal Empowerment – Tisco Working Paper Series on Civil Law and Conflict Resolution Systems’ (2011) 18 Georgetown Journal on Poverty Law and Policy 169, 197. 11.

Ibid 196.

12. Ibid 197. 13. Doreen J McBarnet, Conviction: Law, the State and the Construction of Justice (Palgrave Macmillan, 1981) 147. 14. Ibid 152. 15. Cotterrell, above n 5, 253–4. 16. New South Wales, Parliamentary Debates, Legislative Council, 24 November 2010, 28066–7 (John Hatzistergos). 17. P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 102, [2] (Finkelstein J). 18. Martin Gramatikov and Robert B Porter, above n 10, 170 quoting Commission on Legal Empowerment for the Poor, Making the law work for everyone (2008) vol 1, 26. 19. Cotterrell, above n 5, 255. 20. Barendrecht, above n 3, 14. 21. Ibid 13. 22. Legg, ‘Federal Courts Fees Up – Access to Justice Down’, above n 2, 38.

24


between feeding a family, getting to work, saving a business, or filing for bankruptcy.

Why Representation and Resources are Critical to Access to Justice in Minor Civil Jurisdictions: The Experience of Advisory Services in Minor Civil Claims Margaret Castles, David Caruso and Anne Hewitt*

ABSTRACT This article argues that appropriate involvement of the legal profession in minor civil proceedings, rather than its exclusion, will best facilitate efficient proceedings and ensure rectitude of outcome. We recommend that initiatives are implemented to: (i) ensure that legal advice is more accessible to parties; (ii) provide more targeted, matter specific advice regarding the utility, process and benefits of ADR to individuals involved in litigation; and (iii) facilitate the provision of unbundled legal advice on an ‘as needs’ basis. These recommendations partly derive from the experience of the authors in administering pro bono legal advisory clinics in the Adelaide Magistrates Court and the work of the litigation research unit within the Law School of the University of Adelaide.

I. INTRODUCTION This article derives from a submission made by the authors to the Productivity Commission’s Access to Justice Arrangements Issues Paper.1 Our focus is on the question of access to justice in minor civil jurisdictions. Our arguments and recommendations are based on over a decade of experience operating the Magistrates Court Legal Advice Service (“MCLAS”), a free legal clinic run by the University of Adelaide Law School,2 and the work of the Advocacy and Justice Unit,3 a research unit of the Faculty of the Professions at the University of Adelaide. We here critique reforms that are intended to create 25

more efficient and streamlined processes in minor civil jurisdictions by limiting involvement of the legal profession. We examine the consequences of these reforms for access to justice in minor civil claims, and argue that appropriate involvement of the legal profession in minor civil claims can contribute to, rather than diminish, efficient and just outcomes. We conclude with recommendations for the practical implementation of what we advocate.

II. THE PROBLEM OF ACCESS TO JUSTICE IN MINOR CIVIL JURISDICTIONS The Honourable Justice Ronald Sackville observed that: …like other catchphrases, such as ‘fairness’ and ‘accountability’ … the expression ‘access to justice’ survives in political and legal discourse because it is capable of meaning different things to different people.4 We contend that access to justice means more than access to a courtroom. It also means access to a system which enables participants to understand the legal and factual issues involved in their dispute and to reach a fair and equitable outcome. We believe that barriers to accessing justice arise in minor civil jurisdictions where litigants must represent themselves. In South Australia, the upper limit for a minor civil claim is $25,000. This is, in any terms, a significant sum and may mean the difference

MCLAS is a pro bono legal clinic for unrepresented litigants in the minor civil claims jurisdiction of the South Australian Magistrates Court. The service provides advice on process, merit, compromise and case management to approximately 120 litigants each year. Free advice is offered by selected undergraduate students supervised by a solicitor. In almost all cases, it is our experience that the parties do not understand the legal issues involved in the matter they seek to agitate. This affects both their capacity to bring the case to an effective trial and to reach satisfactory outcomes through alternative dispute resolution. The barriers presented by lack of understanding are uniformly noted across selfrepresented jurisdictions in Australia and internationally.5 Jurisdictions such as the minor civil claims jurisdiction of the South Australian Magistrates Court, and numerous Commonwealth and State Tribunals, are designed to minimise involvement of lawyers. The policy goals of these jurisdictions are to minimise the costs of litigation for participants and to streamline proceedings by reducing preliminary legal arguments or arguments on procedural or evidential points of law which do not go to the final outcome of the actual issue in dispute.6 To this end, many of these courts and tribunals act in an inquisitorial rather than adversarial manner, with tribunal members or magistrates having explicit powers to inquire and direct parties during the hearing.7 There are good reasons for ‘de-legalising’ and simplifying minor civil claims jurisdictions; the most obvious being that the low value and (often) very simple nature of claims does not warrant legal representation expenses that may easily exceed the value in dispute. The difficulty with this proposition is that for those cases where the law and court process remain complex, it is too difficult for litigants to manage alone.8 The unrepresented litigant faces difficulties in: recognising legal issues; identifying law relevant to resolving the dispute; understanding ADR and trial procedure. We next examine these difficulties with a view to answering the broader question - is restricting the involvement of legal practitioners in minor claims jurisdictions facilitating access to justice?

III. RECOGNISING THE LEGAL ISSUE In 2012 the Australia Institute reported that 88 per cent of Australians agreed that ‘the legal system is too complicated to understand properly’;9 a conclusion

which is supported in a number of recent investigations in Australia and overseas.10 Whilst parties to litigation may have a broad understanding of what is ‘right and wrong’ they often do not have the capacity to identify the legal principles that underpin this intuition nor the capacity to understand which facts are legally relevant to their claim. As a consequence, we have found that many claims do not resolve early because parties have unrealistic views of their prospects of success. This lack of understanding results in wasted court time and party dissatisfaction with process.11 Even in an inquisitorial process, by the time a magistrate identifies particular evidence as being useful, it is often too late for it to be located or used. Too often litigants attend for hearing without relevant evidence or witnesses, or the capacity to even identify important facts or legal argument. Nerves, confusion, and the lack of understanding or capacity to articulate a case can also impede justice being achieved.

IV. INEXPERIENCE OF LITIGANTS A range of primarily online information is available to parties about the general processes to be followed in most jurisdictions.12 The Magistrates Court in South Australia also requires parties to attend a directions hearing where a Deputy Registrar attempts to isolate the legal issues involved in the dispute and directs the parties to focus on these. Often the Registrars will suggest that the parties seek legal support from MCLAS or a lawyer if the issues are sufficiently complex. The ready availability of information and the support offered by the court go some way to addressing the real disadvantage that many litigants face in coming to grips with the law. However recent surveys of litigants in Australia suggest that this is not enough and more dynamic and interactive support is needed.13

V. RELEVANCE OF LAW Many cases in small claims jurisdictions will be resolved by parties with little reference to legal principle. But it is a fallacy that the law is not important in minor claims jurisdictions. In a significant proportion of cases, a just 26


outcome requires articulation of legal rights and the calling of evidence or fact to support claimed rights. Justice is not served by parties landing in court illequipped to understand the legal parameters of their case and unprepared to argue it effectively. Nor is it served by parties compromising their claim without understanding its strength. Despite the comparatively small amounts in dispute, the legal issues in minor civil jurisdictions can be as complex as in any other court and are often complicated by difficult factual circumstances.14 Litigants in such cases often need legal advice to assist them to understand the law governing the dispute. They may also require advice regarding a case management strategy in light of the legal and evidentiary issues. Such assistance would invariably include advice about early settlement and compromise. As we have mentioned, most cases in the small claims jurisdiction are resolved through negotiation and compromise. Often settlement in these claims is the product of the parties being more concerned with personal, commercial and business outcomes than they are with achieving an outcome that is correct under the law. But these considerations also drive outcomes and the decisions of parties in complex and substantial litigation. Parties concerned with small claims should have equal opportunity as those claiming larger sums to understand how the law relates to their dispute. Understanding how the law relates to a dispute is critical to a party ‘accessing justice’ because it is the means by which a party can understand what the law, to which society adheres, considers relevant, fair and reasonable bases to resolve the dispute. A party should have the opportunity to gain that understanding from legal professionals so the party can consider, in light of that understanding, the outcomes they wish to achieve and the methods by which they might be achieved, be it through adjudicative or compromise based processes. Understanding how the law affects a dispute, even if the legally correct outcome is secondary to the outcome primarily desired by the party, should and must be the expectation of a society governed by the rule of law. The consequence of restrictions on lawyers’ role in a system that remains legally and procedurally complex is to diminish the extent to which hearings allow for clear and full exploration of the relevant legal issues and factual circumstances in a manner that individuals can appreciate and understand. A trial at which parties could, but for the lack of basic legal understanding, have more clearly made their case, is unlikely to give rise to a just outcome. 27

Similarly, a compromise settlement that is expedient at the expense of legal rights is not a fair outcome. That proceedings may be concluded more quickly, is a hollow achievement if they have not afforded justice.

VI. UNDERSTANDING ALTERNATIVE DISPUTE RESOLUTION In the experience of the MCLAS, of equal importance as readiness for trial, is the need for parties to be able to realistically assess their case early in the dispute so as to facilitate engagement with ADR processes. The focus of minor claims jurisdictions is often on early settlement.15 However, ADR literacy in the community is low, with few first-time litigants understanding the processes, the way to prepare or the way ADR might work in their case. The resources to facilitate early settlement consist almost entirely of written pamphlets and written instructional material. There is an assumption that parties will want to talk to each other to resolve the dispute pretrial. The experience of MCLAS is that this assumption is wrong. Parties are very often averse to talking to each

“...appropriate involvement of the legal profession in

other; they distrust each other, they lack the vocabulary to negotiate effectively, and do not appreciate that compromise is part of negotiation. Parties also fail to understand that mediation is not a ‘mini-trial’ but a process in which discussion and compromise is key. Parties often believe that negotiation must be positional and based on ‘zero-sum outcomes’ and are ill-equipped to engage in more imaginative and extensive bargaining. We find that giving litigants at MCLAS more detailed and practical explanations of ADR, couched in terms of how it might work in their case, usually results in willingness or even enthusiasm to negotiate or mediate. There is a systemic barrier to be overcome to persuade people to prepare for and engage in effective mediation. Once in the hands of a skilled mediator, parties will very often negotiate a reasoned settlement; getting parties to the mediator is the real challenge.

VII. CONCLUSION We have sought to briefly identify a number of misconceptions about minor claims. It is the experience of MCLAS and the authors, borne out by recent investigations in this area, that there are a number of challenges that remain to be met in lawyer-free jurisdictions if they are to offer a consistently credible dispute resolution process and just outcomes. Based on this experience, we recommend the following to ensure meaningful access to justice for minor claimants in South Australia.

minor civil proceedings,

A. Recommendation One: Ensuring parties receive adequate legal advice

rather than its exclusion,

Assisting litigants to understand the legal and factual issues at the outset is critically influential in enabling them to effectively progress (or compromise) their case. Being able to articulate the nature of the case with reference to simple legal principle and relevant fact both confines the matters to be pursued and provides a roadmap for litigants to follow.

will best facilitate efficient proceedings and ensure rectitude of outcome.

B. Recommendation Two: Providing parties with better education regarding ADR Current information about ADR does not address fundamental issues relevant to its nature or assist parties to effectively prepare for ADR. Personalised discussion about ADR is often required; lawyers are critical in

providing education on ADR and hence meaningful and just resolution.

C. Recommendation Three: Facilitating the provision of legal advice ‘as needs’ We appreciate that minor claims may require more limited legal advice than claims where sums are greater. The traditional structure of legal advice, where a lawyer is responsible for a client’s whole case, inhibits provision of limited, issue-specific advice. Services like MCLAS provide ‘as needs’ services. A typical MCLAS case might involve these services: •

hearing the background to a litigant’s case,

discussing settlement options,

helping to draft pleadings or letters or offers of settlement, and

providing step-by-step guidance outlining: the law, the issues, and the prospects of success, information about how ADR processes could work, an explanation of the facts needed to support the client’s legal position, and the evidence they should gather.

In some cases much more work is needed. But in the majority of cases this approach is sufficient to assist a litigant to be prepared for negotiation or trial. There are very few community based legal services that offer this type of ‘as needs’ legal support. Duty solicitor services that provide advice, drafting, and pre-trial counselling are an effective option, but restricted by legal aid thresholds. Private solicitors are understandably reluctant to act on limited retainers for reasons of risk management.16 Structures that enable lawyers to provide ‘as needs’ services while also addressing risk management issues, such as unbundled legal services, provide a workable option which should be pursued so as to ensure the legal profession can provide appropriate services to minor claimants.17 If such legal services are appropriately accessible, and lawyers are able to provide ‘as needs’ advice, many clients could see the benefit of paying a small sum to assist them navigate the court system efficiently and effectively. Paying for whole-of-case representation over a disputed sum of $20,000 is unlikely to be cost effective. Paying for limited or task specific legal advice for a $20,000 claim is much more likely to be attractive to the uninformed litigant. 28


In sum, exclusion of lawyers from Australian legal process is not the answer to achieve cost effective justice. Attention should be directed to refining the role of lawyers within the process to ensure access to justice means more than having ‘your day in court’. This would require the support of Law Societies and the profession, and may require recasting of professional practice rules to facilitate a more flexible approach to meeting client needs. Easy assumptions about the importance and complexity of minor civil cases and about the efficacy of measures designed to inform litigants about law and process need to be challenged. Experience and recent evaluative studies suggest that whilst inroads have been made, challenges still remain.

REFERENCES * The authors are colleagues at Adelaide Law School, the University of Adelaide. Margaret Castles is a Senior Lecturer and Director of Clinical Legal Education. David Caruso is a Lecturer and Director of the University’s Litigation Law Unit. Anne Hewitt is an Associate Professor who has worked in the School’s pro bono legal advice clinics. The authors acknowledge the assistance derived from the comments of the reviewers. 1.

2.

David Caruso, Margaret Castles, Anne Hewitt, the Magistrates Court Legal Advice Service (MCLAS) and the Advocacy and Justice Unit, Submission to Productivity Commission, Access to Justice Arrangements Issues Paper, 31 October 2013. The minor civil jurisdiction of the Magistrates Court in South Australia is fixed at $25 000. Most other minor civil jurisdictions in Australia are fixed at $10 000.

3.

Now the Litigation Law Unit.

4.

Justice Ronald Sackville, ‘Access to Justice: Assumptions and Reality Checks’ (Keynote address to the NSW Law and Justice Foundation’s Access to Justice Roundtable, NSW Parliament House, July 2002) <http://www.lawfoundation.net.au/ljf/site/ articleIDs/52183CCAB00DB476CA2572730018E0C8/$file/AJR_book. pdf> 19.

5.

Elizabeth Richardson and Tania Sourdin, ‘Mind the Gap: Making Evidence Based Decisions about Self-Represented Litigants’ (2013) 22 Journal of Judicial Administration 191, 192; Deputy Chief Justice Faulks, ‘Self-Represented Litigants: Tackling the Challenge’ (Managing People in Court Conference: National Judicial College of Australia and the Australian National University, February 2013) 4–5.

6.

The costs of accessing justice are broadly recognised to be of concern in Australia. For example, in its submission to the Productivity Commission the Law Council of Australia stated ‘[i] t is clear that the cost of accessing the justice system impacts significantly on the capacity of many people to seek justice on equal terms’: Law Council of Australia, Submission No 11 to the Productivity Commission, Access to Justice Arrangements Issues Paper, 13 November 2013, 37 (136).

7.

Magistrates Court Act 1991 (SA) s 38.

8.

Justice Faulks emphasises this fundamental structural challenge when he suggests that the only way to manage the self represented litigant is to get them a lawyer, make them into a lawyer, or change the system, so that they don’t need to have or be a lawyer to manage it: Faulks above n 6, 2.

29

9.

Richard Dennis, Josh Fear and Emily Millane, ‘Justice for All: Giving Australians Greater Access to the Legal System’ (The Australia Institute Issue Paper No 8, 2012) 22.

10. Julie Macfarlane, ‘The National Self Represented Litigants Project: Identifying and Meeting the Needs of Self Represented Litigants’ (Treasurer’s Advisory Group on Access to Justice Working Group Report, May 2013) 552; Tania Sourdin and Nerida Wallace, ‘The Dilemmas Posed by Self Represented Litigants – The Dark Side’ (2014) Access to Justice (Paper 32) 10; Deborah L Rhode, ‘Whatever Happened to Access to Justice’ (2008–2009) 42 Loyola of Los Angeles Law Review 869, 881. 11.

Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s Self–Representation Services: A Model for Other Courts and Tribunals’ (2011) 20 Journal of Judicial Administration 225, 227 report that 82 out of 100 clients at the QPILCH selfrepresentation service did not proceed to court.

12. For example, see the following online information for unrepresented litigants in the Small Claims Division of the South Australian Magistrate’s Court: Courts Administration Authority of South Australia, ‘$25 000 or Less’ <http://www.courts.sa.gov.au/ RepresentYourself/CivilClaims/MinorClaims/Pages/default.aspx>.

Australian Asylum Law: Cuts to Funding a Threat to Access to Justice and a Burden on the System Rebecca Leabeater* and Genevieve Wilks* in collaboration with the Refugee Advice and Casework Service

13. Woodyatt, Thompson and Pendlebury, above n 11. 14. Examples in the MCLAS include employer liability for negligent acts of employee, the legal duty of a local council for damage to property from falling trees in a public space, and questions of evidence and proof in complicated contract and indemnity disputes. 15. In the Magistrates Court of SA mediation, conciliation, arbitration and settlement options are considered in Magistrates Court (Civil) Rules 2013 (SA) rr 73(2). 16. Faulks above n 5, 10; Andrea de Smidt and Kate Dodgson, ‘Unbundling Our Way to Outcomes: QPILCH’s Self Representation Service at QCAT, Two Years On’ (2012) 21 Journal of Judicial Administration 246, 247. 17. Rhode, above n 10, 897–8.

INTRODUCTION Australia receives an incredibly small percentage of the world’s refugees. According to the Australian Human Rights Commission, in 2012 the applications for asylum received by Australia constituted just 2.2% of the number of applications for asylum worldwide.1 This fact is at odds with both the rhetoric employed to describe those seeking asylum in Australia and also with Australia’s legal and policy approach. The creation of a two-tiered system giving preference to those who arrived with a valid visa, and the frequent and complex changes in law and policy in the past eighteen months would generally be characteristic of a system under stress. The removal of the Immigration Application and Assistance Scheme (IAAAS) funding which provided for legal representation to asylum seekers is a matter of significant concern, considering the special vulnerabilities in general of self-represented litigants, compounded by the further vulnerabilities of asylum seekers and the complexity and changeability of the law. The consequences of a lack of legal assistance funding, as seen in the United States, raises concerning questions as to access to justice, and in the context of refugee law, of Australia’s compliance with its international law obligations.

ASYLUM LAW IN AUSTRALIA Asylum law in Australia has progressively become an uncertain and unpredictable area of law. Australia currently assesses applications for protection based on

mode of arrival.2 While individuals who travel to Australia by plane with a visa are able to apply for protection in Australia, those who arrive by boat are prevented from making a claim for asylum in Australia through the use of off-shore processing in Nauru and Manus Island.3 Not only does this two-tiered system put those asylum seekers who arrive by boat at a disadvantage, but it further contributes to the complexity of refugee law in Australia. In the past two years alone, refugee law and policy in Australia have changed frequently and significantly, with the current government determined not to allow boat arrival asylum seekers who are found to be refugees to be granted permanent protection.4 Without legal assistance, navigating these changes to the law is a difficult task, and asylum seekers in this context are at an even greater disadvantage. The UNHCR has commented that “[a]sylum seekers are often unable to articulate the elements relevant to an asylum claim without the assistance of a qualified counsellor because they are not familiar with the precise grounds for the recognition of refugee status and the legal system of a foreign country.”5 Significantly, this policy is out of step with international law and state practice. While similar policies of turning back boats exist elsewhere in the world – for example, in the United States,6 Italy7 and Thailand8 – they have been the subjects of international criticism where no protection assessment has been made prior to deportation.9 Aside from the boat turn back, Australian asylum law has attracted international criticism of its 30


´two-tiered system´ of legal obligations based on mode of arrival.10 Not only does assessment based upon arrival create a criterion non-existent in the definition of a refugee contained in the Convention Relating to the Status of Refugees,11 but it also is contrary to international refugee law, which prohibits the penalising of refugees because of the manner of entry, even if such mode of arrival is not authorised under domestic laws.12

REMOVAL OF FUNDING FOR LEGAL REPRESENTATION Given the multifarious changes to refugee law and policy in recent times, it is particularly alarming that funding for legal representation of people who come by boat seeking asylum has been removed. Asylum seekers are a particularly vulnerable group in Australian society. Not only do they face cultural and linguistic challenges when engaging with the legal system, but many may also be illiterate in any language. This is compounded by the severe trauma that many asylum seekers have been through, which may affect their ability to recount their stories13 and contribute to a lack of trust in authority figures and a fear to tell the entire story. Organisations such as the Refugee Advice and Casework Service (RACS) devote their services to assisting asylum seekers in the process of applying for protection in Australia. Established in 1987, RACS works with other legal and non-legal support services to ensure that asylum seekers are supported and have access to representation before the law.14 In March 2014, the Federal government followed through with its pre-election promise15 and formally withdrew legal aid for asylum seekers arriving without a valid visa under the Immigration Advice and Assistance Scheme (IAAAS). In place of legal assistance, the government indicated that it would instead provide instructions in different languages to explain the protection visa application process.16 This meant that IAAAS providers such as RACS have had significant cuts to their funding, severely impacting their ability to provide legal assistance to asylum seekers.

THE SELF-REPRESENTED LITIGANT Self-represented litigants (SRLs) have been long been identified as a vulnerable group in the judicial system. SRLs have been found to experience difficulties understanding procedural requirements, the concept 31

of evidence and identifying and focusing on pertinent evidence.17 The draft Productivity Commission report into Access to Justice found that in situations where a SLR comes up against a represented litigant, the SRL inevitably is forced to settle for less than their unpaid legal entitlements and for a less favourable outcome.18 Asylum seekers as SRLs face these challenges to a greater extent, due to the special vulnerabilities of their position. They often lack the cultural and linguistic background to understand Australian refugee law, especially in the current context of frequent policy changes. The Law Council of Australia has expressed concern in relation to access to justice for asylum seekers without the IAAAS funding. According to the Council, the IAAAS funding allowed for the modest allocation of funding to assist asylum seekers prepare their claims. This funding, according to the Council, was not directed towards challenging negative decisions in courts, but rather functioned as a base line level of assistance for the initial application, which the Council considered to be ‘critical to an effective and efficient system of processing.’19 This touches on the secondary consequences of selfrepresentation - the effect on the justice system as a whole. While there is no complete evidence as to the effect of SRLs on the justice system, multiple studies suggest that they increase the financial and logistical burden on the courts.20 Cases involving SRLs can take longer to hear, due to their lack of preparation and understanding of court process, and delays due to incorrectly completed documents.21 In the context of asylum cases, this transfers to a significant burden on the Department of Immigration officials, tribunal members and judges making the determinations, as well as further costs due to detention. The Commission of Audit report into costs of detention and processing found that the cost to hold one asylum seeker in offshore detention costs $400 000 a year, in comparison to $239 000 for onshore detention and $100 000 for community detention.22 Delays in decision-making will contribute to increase these costs. The situation in the United States is a testament to this, with the financial burden of denying legal representation costing taxpayers more, not less, in the long-term.23

THE UNITED STATES AND ASYLUM SEEKERS – A WARNING The situation of asylum seekers in the United States is a cautionary tale for the removal of low-cost competent

The deleterious effects of the removal of lowcost legal assistance for asylum seekers in the United States should be treated as a warning for Australia should legal funding not be reinstated.

” legal assistance. Except for asylum seekers eligible for a ‘U Visa’ – a visa for immigrants who have been victims of gender related crimes – there is no legal assistance available for asylum seekers in the United States.24 This leaves them particularly vulnerable as not only may they have limited understanding of the US legal system, but also, as a consequence of this barrier to justice, deplorable ethical and professional standards have developed.25 In the US, legal practices have evolved which are at best unprofessional and at worst, fraudulent and unethical.26 On the crooked end of the spectrum, so-called ‘travel agency lawyers’ have been found to mislead clients as to charges for services, or in other cases, fail to complete documentation for their application correctly.27 The inclusion of false information, included perhaps under the misapprehension of assisting the claim of a client, can be ultimately detrimental to a claim. Other examples of poor practice include initiation and charging of frivolous legal proceedings or the abrupt abandonment of proceedings.28 This is in part due to the nature of asylum arrival. Many individuals arrive in debt to those who organized their passage to the United States.29 Such individuals are often coached by their smugglers with fictional stories to tell immigration officials. As continuity of evidence is vital for a successful claim in the US system, this places such applicants in a disadvantaged position, even if they are subsequently able to gain adequate legal representation. Considering the financial burden asylum seekers are

generally already shouldering before the additional burden of legal costs, and their special vulnerability in discerning the quality of representation given, questions are raised as to the equitable and just nature of this system.30 A Stanford Law Review study of US asylum practices found that 46% of persons who appeared with representation were granted asylum, compared to 16% of those who were unrepresented.31 This correlation suggests that self-representation in the context of refugee law raises further concerns of equality of access than which self-representation generally generates; a worrying finding considering the grave consequences for individuals when a case is incorrectly decided – being sent back to the place they fled.

ASSISTANCE DESPITE THE DIFFICULTIES: THE RACS LEGAL HELP FOR REFUGEES CLINIC In Australia, the removal of IAAAS legal aid for asylum seekers who came by boat and are in Australia and in turn, funding cuts to IAAAS providers such as RACS, has severely restricted the provision of legal assistance to those who really need it. Lawyers at RACS have seen firsthand the negative impact that delays and uncertainty can have on a client’s ability to articulate their claims of being a refugee. In response, services have had to draw on their own resources and a large volunteer base to meet the legal needs of asylum seekers. An example of this is the RACS Legal Help for Refugees Clinic. 32


Significant changes have already been made recently to Australian refugee law and policy, and it appears likely that more changes will occur soon. In response to both the current policy settings and funding cuts, the RACS clinic has begun to help the large cohort of unrepresented asylum seekers who have been living in legal limbo, barred from lodging a valid application for a permanent protection visa, unsure of what their future holds, by offering them time with a lawyer to talk about their claims for protection. Prior to an appointment at the Legal Clinic, RACS obtains, under Freedom of Information, the clients’ documents held by the Department of Information. At their RACS appointment, the clients meet with a legal student volunteer who collects personal information. Then the clients see a volunteer lawyer who helps them to draft a statement to document their claims to be a refugee within the meaning of the Refugee Convention. For many, an appointment with a volunteer lawyer at the Clinic is the first time an asylum seeker has had the opportunity in Australia to articulate and recount their claims to being a refugee and the reasons why they had to leave their home country. They are most likely on a Bridging Visa E with no work or study rights, receiving only a small amount of financial assistance. They may be a non-English speaker, lacking family or social support structures in Australia. Often, this is an emotional experience for not only the client, but also the volunteer students and lawyers who are assisting the client.

Image by Russavia

Regardless of what Refugee Status Determination process there will be in the future, empowering asylum seekers to articulate their claims for protection is a vital task. The hope is that a session at the Clinic, which provides people with their documents and a legal statement documenting their claims, will one day assist them in making a protection application, particularly if there is a continuation of the policy to defund legal assistance for boat arrival asylum seekers. While the Legal Clinic is providing important legal assistance, this is far short of the legal representation necessary to ensure access to justice for asylum seekers and prevent individuals falling through the system.

33

CONCLUSION The future of refugee and asylum seeker law and policy in Australia remains uncertain. If history is any indication, it will continue to be subject to frequent changes. For now, the withdrawal of IAAAS funding to service providers such

as RACS has made it impossible to provide adequate legal assistance to all those in need without drawing on a large volunteer support base. The RACS Legal Help for Refugees Clinic is a positive example of the ability of legal assistance to promote access to justice for asylum seekers. However, it relies heavily on volunteers in order to continue to function. While the volunteer clinic does provide vital assistance, the extent of this assistance is limited due to the inherent limitations of the volunteer model. The deleterious effects of the removal of low-cost legal assistance for asylum seekers in the United States should be treated as a warning for Australia should legal funding not be reinstated. Cutting funding to legal assistance will have consequences not only for asylum seekers’ access to justice, but also for the Australian legal system as a whole. Not only are courts and government officials being shouldered with the burden of dealing with SRLs, but furthermore, the delays will only compound the growing costs of ongoing detention both off-shore and on-shore.

REFERENCES Rebecca Leabeater* Combined Law Graduate, UNSW Genevieve Wilks* Combined Law Candidate, UNSW 1.

Australian Human Rights Commission, Asylum Seekers, Refugees and Human Rights (2 October 2013) <https://www.humanrights. gov.au/sites/default/files/document/publication/snapshot_ report_2013.pdf>.

2.

Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

3.

Migration Act 1958 (Cth) s 198AD.

4.

Migration Act 1958 (Cth) s 46A(1)(a) currently puts a legislative bar on lodging a valid application for a permanent protection visa on asylum seekers who have arrived by boat after 13 August 2012; for a chronology of legal changes affecting asylum seekers, see Refugee Advice & Casework Service, Chronology of Recent Changes Affecting Asylum Seekers <http://www.racs.org.au/wpcontent/uploads/RACS-FACT-SHEET-Chronology-of-legal-changesaffecting-asylum-seekers-8.7.2014.pdf>.

5.

UNHCR, Fair and Efficient Asylum Procedures: A Non-Exhaustive Overview of Applicable International Standards (2 September 2005) <http://www.refworld.org/pdfid/432ae9204.pdf>.

6.

United States Coast Guard, Alien Migrant Interdiction (9 March 2013) <http://www.uscg.mil/hq/cg5/cg531/amio/amio.asp>.

7.

Human Rights Watch, Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers (2009) <http://www.hrw.org/sites/ default/files/reports/italy0909web_0.pdf>.

28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1(A). 12. Ibid art 31, ´Contracting States shall not impose penalties on account of illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened…´ 13. United Nations High Commissioner for Refugees, Comments by the Office of the United Nations High Commissioner for Refugees: New Zealand Legal Aid Quality Framework (19 October 2010) <http://unhcr.org.au/unhcr/images/UNHCR%20Final%20 Submission%20Legal%20Aid%20Quality%20Framework%2019%20 Oct.pdf>; Refugee Council of Australia, ‘Denial of Legal Advice Would Put Asylum Seekers’ Lives at Risk’ (Media Release, 1 September 2013) <http://www.refugeecouncil.org.au/n/ mr/130901-Legal-aid.pdf>. 14. For more information, see Refugee Advice & Casework Service, About RACS <http://www.racs.org.au/about-racs/>. 15. See The Coalition’s Policy to Withdraw Tax Payer Funded Assistance to Illegal Boat Arrivals <http://www.sciencemedia.com.au/ downloads/2013-8-31-1.pdf>. 16. Pro Bono Australia, Legal Cuts Undermine Refugee Rights for Protection (31 March 2014) <http://www.probonoaustralia.com. au/news/2014/03/legal-cuts-undermine-refugee-rights-protectionnfp#>. 17. Judiciary of England and Wales, The Judicial Working Group on Litigants in Person: Report (July 2013) 11-12 <http://www.judiciary. gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013. pdf>. 18. Productivity Commission, Draft Report on Access to Justice Arrangements in Australia (8 April 2014) 432 <http://www.pc.gov. au/projects/inquiry/access-justice/draft>. 19. Law Council of Australia, ‘Law Council concerned by removal of IAAAS funding’ (Press Release, 2 April 2014) <http:// www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/ mediaReleases/1409_--_Law_Council_concerned_by_removal_of_ IAAAS_Funding.pdf>. 20. Productivity Commission, above n 18, 435. 21. Ibid. 22. National Commission of Audit Report, Towards Responsible Government: Appendix to the Report of the National Commission of Audit (February 2014) 113–14 [10.14] (‘Illegal Maritime Arrival Costs’). 23. Bill Frelick, ‘Asylum Seekers: The Right to Representation,’ The New York Times (online), 12 July 2011 <http://www.nytimes.com/ roomfordebate/2011/07/12/how-can-the-asylum-system-be-fixed/ asylum-seekers-the-right-to-representation>. 24. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub L No 109-162, § 104(a), 119 Stat 2960, 2978 (2006) (amending 42 USC § 3796gg-6(a) (2006)). 25. Julia Brooks, Martina Bunk and Leïla Haddouche, Navigating The Asylum Process in the US (2008) <http://www.humanityinaction. org/knowledgebase/76-navigating-the-asylum-process-in-the-u-s>. 26. Ibid. 27. Frelick, above n 23.

8.

UNHCR, UNHCR Concern at Reports of Shooting involving Rohingya Boat People (Briefing Note, 15 March 2013) <http://www.unhcr. org/5143076c9.html>.

28. Brooks, Bunk and Haddouche, above n 25; Human Rights Watch, ‘At Least Let Them Work: The Denial of Work Authorization and Assistance For Asylum Seekers in the United States’ (12 November 2013) 7 <http://www.hrw.org/reports/2013/11/12/least-let-themwork-0>.

9.

Hirsi Jamaa v Italy (European Court of Human Rights, Grand Chamber, Application No 27765/09, 23 February 2012).

29. Jacqueline Bhabha, Child Migration and Human Rights in a Global Age (Princeton University Press, 2014) 211.

10. United Nations Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant: Concluding Observations Of The Human Rights Committee, 95th sess, UN Doc CCPR/C/AUS/CO/5 (7 May 2009), [23]. 11.

Convention Relating to the Status of Refugees, opened for signature

30. Human Rights Watch, ‘At Least Let Them Work’, above n 28. 31. Jaya Ramji-Nogales, Andrew Schoenholtz and Philip G Schrag, ‘Refugee Roulette: Disparities in Asylum Adjudication’ (2007) 60(2) Stanford Law Review 295; Human Rights Watch, ‘At Least Let Them Work’, above n 28.

34


Language as a Barrier to Justice Anna Harley*

The use of language is the foundation of any legal system; courtroom engagement comes down to a battle of words and their form and their function.1 Of the many barriers to justice experienced by litigants, language is perhaps the most isolating. It is a tangible barrier to accessing the legal system and justice especially where jargon and tradition dictate proceedings. Further, language proficiency is increasingly important to access the legal system in an ever-globalising world. The criminal justice system in New South Wales will be used to explore and illustrate the effect that language can have on participation and access to the justice system.

assumption that all those involved have full knowledge of the process.5 As law is normative and guides the community on behaviours that are acceptable or criminalised, it is ‘power-conferring and duty-imposing’.6

I. LANGUAGE AS FORMALITY

Further, laws are validated by reference to each other and in that way work in tandem.7 Without expertise as to how the legal system works as a whole in conjunction with each of its limbs, it is difficult to understand the process as it evolves and the requisite steps needed for dispute resolution.8 It is inevitable therefore that a lack of knowledge or understanding of the courtroom’s formal language, format and structure of a defence, or understanding of rights is disadvantageous to those who lack the skills or knowledge assumed by the law.9

Language in the law sets boundaries and acceptable forms of conduct through statute, judgment and convention.2 As parameters are set by the words used and the systematic classification of certain behaviours is constructed in relation to other aspects of language, either written or oral, it can be difficult for those without the requisite training or knowledge to understand how the system impacts their particular legal problem.3 Lack of knowledge or understanding is a significant barrier to engagement and participation in the legal process, as it becomes exclusive and the domain of experts.4

The most salient example is that of an unrepresented accused. Whilst the criminal justice system is supposed to aim to balance the relationship of inequality between State agencies and citizens, it is evident that an adherence to due process – coupled with a need for efficiency – often means unrepresented accused are afforded very little time to advocate for themselves.10 Often judges in Local or District Courts need to balance the desired efficiency of proceedings with ensuring that unrepresented parties receive adequate legal advice and understand the consequences of the charges against them.

Language used within the criminal justice process is pervasive and operative at every point of access to the system itself. It dictates and communicates the proceedings and rules of the game based on the broader

The language of law has become the domain of experts and courts appear reluctant to allow the same level of engagement with those who lack the requisite knowledge or communication skills.11 This is true for any

35

profession and could be seen as a form of nepotism. However, the reluctance of courts to engage directly with unrepresented defendants can also be seen as an indication of the complexity of the legal process and the need to aid people in their engagement with the law.12 Self represented litigants are increasingly engaging with courts at all levels, and how the courts respond is recognised as a significant challenge in case management and procedure.13

afforded to those with language difficulties.26 However, the relationship between adequate command of English so as to understand rights, be able to receive advice and give instructions is becoming ever more tenuous as drives for efficiency become key performance variables.27 Language proficiency is a pivotal issue in the evaluation of voluntariness in terms of consent to searches, admissions of guilt, understandings of rights and the ability to give and receive advice.28

Representation by a legal professional with language training and communication skills offers much needed expertise.14 Paradoxically, however, representation also raises other barriers to access.15 There are costs and time constraints involved with seeking legal advice and despite programs like Legal Aid there are systemic pressures on the resources of services to provide adequately and fairly for all who wish to seek legal advice.16

It is often noted that the use of interpreters causes considerable delay in proceedings. This is despite increasing uses of technology and utilising translators over the phone. There are still considerable delays and this affects the large volume of proceedings in lower courts and the time in which they are dealt with.

II. LANGUAGE PROFICIENCY Access to adequate and appropriate language services where English is a second language is vital in order to ensure sufficient engagement with and access to the legal process.17 Language proficiency and understanding is requisite in order to have the capacity to take and give advice, and to ensure understanding of the consequences of decisions.18 New South Wales (NSW) is ‘the most culturally and linguistically diverse community in Australia with a complex range of people from numerous cultural, ethnic, linguistic and religious backgrounds.’19 Approximately one quarter of the population speak a language other than English at home.20 16.1 per cent of people in NSW were born in a non-English speaking country.21 The NSW justice system has increasing demands to accommodate non-English speaking witnesses, suspects and accused without compromising due process.22 The pressure to implement technocratic justice processes impacts on the ability of participants to adequately understand their position and the options afforded to them.23 There is a greater amount of time needed when language is a barrier.24 Efficiency quantifies time as a commodity – the greater time taken to access the appropriate interpreter, the more expensive the process becomes.25 It is argued that due process is the only protection

Correspondingly, language is contested; this is the very foundation for submissions. Opposing views are pitted against one and other and this often becomes more complicated where one party has interpreted a defined term or word in a different manner, or if there is more than one possible meaning.29 Semantic levels change the meaning of individual words or the context within which these occur.30 Furthermore, cultural implications

“Language proficiency and understanding is requisite in order to have the capacity to take and give advice, and to ensure understanding of the consequences of decisions.

” 36


“Barriers to access are not merely physical and language has real impact on people’s experience of their place and space within the legal system.

” REFERENCES

around particular words and their meanings can compromise technical semantics.31 If there is found to be an error in the interpretation of particular documents or testimony, this has tangible consequences on time and money spent on a trial and also the evidence that has been previously tendered.32 The contentious nature of translation is evident in two ways. The first is in relation to the translation of particular words in documents or transcripts and the impacts particular meanings may have had. As words and their subsequent meanings can greatly affect the impact certain evidence has, establishing the intended meaning is a vital part of the adversarial process. The second is the interpretation of a word that does not translate literally from one language into another. In many languages there are words that do not translate adequately into English. Further, there are cultural and social connotations that cannot be adequately expressed and are often lost in translation. Judges and counsel often misunderstand the role of interpreters.33 Regularly interpreters are not regarded or treated as experts, and whilst the judicial system demands a high standard of interpreting skill it does not support or incentivise the development of such a system through remuneration or professional recognition.34 There are tensions between what does and what does not get interpreted or translated.35 While there is a 37

general right to a fair trial, there is no automatic right to an interpreter.36 This raises the question: is it possible to have a fair trial if the accused is not ‘linguistically present’ or divorced from proceedings due to a language barrier?37 The pressures on the legal system are numerous and in a period of budgetary constraints it is understandable that some aspects of the system are prioritised over others. However, that is not to say that budgetary pressures do not have significant impacts on those trying to access the system with English as a second language, or with little or no experience of the formality and structure of the language used within the system itself. Systemic pressures alienate and isolate defendants and those trying to gain access to the legal system. Barriers to access are not merely physical and language has real impact on people’s experience of their place and space within the legal system. Further, the ability of the person to actively engage with the legal system is inhibited by language barriers that have the possibility, without the protection of due process measures, to lead to a miscarriage of justice.

Anna Harley* Juris Doctor Candidate, UNSW

18. Ibid.

1.

19. Ibid 3.

Timothy Endicott, ‘Law and Language’, Stanford Encyclopedia of Philosophy (2010) <http://plato.stanford.edu/archives/fall2010/ entries/law-language/>.

2.

Ibid.

3.

Louis Schetzer, Joanna Mullins, and Roberto Buonamano, ‘Access to Justice & Legal Needs: A Project to Identify Legal Needs, Pathways and Barriers for Disadvantaged People in NSW’ (Background Paper, Law & Justice Foundation of New South Wales, August 2002) 6.

4.

Michael King, ‘A Status Passage Analysis of the Defendant’s Progress Through the Magistrates’ Court’, (1978) 2 Law and Human Behaviour 183, 199.

5.

Endicott, above n 1.

6.

Ibid.

7.

Ibid.

8.

Ibid.

9.

Ibid.

10. Herbert L Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968), quoted in David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 5th ed, 2011) 231. 11.

Doreen McBarnet, ‘Magistrates’ Courts and the Ideology of Justice’ (1981) 8 British Journal of Law and Society 181, 186.

12. Schetzer, Mullins, and Buonamano, above n 3, 10. 13. E Richardson, T Sourdin And N Wallace, ‘Self-Represented Litigants: Gathering Useful Information’ (Final Report, Australian Centre for Justice Innovation, June 2012) <http://www.ag.gov.au/ LegalSystem/Documents/2012%20Report%20Self-Represented%20 Litigants%20Report%20-%20Gathering%20Useful%20 Information%20Monash%20University.PDF>. 14. Ibid 9–10. 15. Schetzer, Mullins, and Buonamano, above n 3, 10. 16. Packer, above n 10, 231. 17. NSW Department of Justice & Attorney General, ‘Attorney General’s Division Culturally Diverse Communities’ Access Plan 2009-2012’ (Access Plan, Department of Justice & Attorney, 2010) 3 <http://www.diversityservices.lawlink.nsw.gov.au/agdbasev7wr/ divserv/documents/pdf/cdcap2009_2012.pdf>.

20. Ibid. 21. Ibid. 22. Schetzer, Mullins, and Buonamano, above n 3, 27; Linda Friedman Ramirez, Leslie Nori Kay, and Katherine Weber, ‘When Language is a Barrier to Justice: The non-English-Speaking Suspect’s Waiver of Rights’ (1994) 9(2) Criminal Justice 2. 23. Schetzer, Mullins, and Buonamano, above n 3. 24. Ibid. 25. David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (Federation Press, 5th ed, 2011) 117. 26. Schetzer, Mullins, and Buonamano, above n 3. 27. Ramirez, Kay and Weber, above n 22. 28. Ibid. 29. ABC Radio National, ‘Interpreters in the Courtroom’, The Law Report, 16 September 2008 (Damien Carrick) <http://www.abc. net.au/radionational/programs/lawreport/interpreters-in-thecourtroom/3184678>. 30. ABC Radio National, ‘Courtroom Interpreters’, The Law Report, 6 December 2011 (Damien Carrick) <http://www. abc.net.au/radionational/programs/lawreport/courtroominterpreters/3713316>. 31. ABC Radio National, ‘Interpreters in the Courtroom’, above n 29. 32. Ibid. 33. ABC Radio National, ‘Courtroom Interpreters’, The Law Report, 6 December 2011 (Damien Carrick) <http://www. abc.net.au/radionational/programs/lawreport/courtroominterpreters/3713316>. 34. Ibid. 35. Ibid. 36. Nicole Choolun, ‘Lost in Translation? An Examination of Court Interpreting in Australia’ (2009) 2 Queensland Law Student Review 21, 22–3. 37. Ibid.

38


Prisoner photos from the Tyne & Wear Archives & Museums

Access to Justice Graeme Innes AM*

Our daughter (let’s call her Julie) loves pretty calendars and greeting cards. In her thirties, she has an intellectual disability. She lives independently. During a four year period she was convicted of shoplifting such cards seven times, and was at risk of going to gaol. The duty lawyer always told the Magistrate ‘my client … has an intellectual disability, her parents and guardians are present in the court today’. Transcripts indicate that the Queensland courts were acutely aware of her intellectual disability, yet it was never given due consideration. Nor was it ever suggested that her hearings be adjourned so that her disabilities could be further investigated. Julie’s parents report that she doesn’t comprehend any part of the court process, and that she acquiesces just to get it over and done with. In Queensland, if charges are ‘indictable’ they can be referred to the Mental Health Court, but for summary offenses, there is no alternative procedure. This encourages pleas of guilty. Unfortunately, things escalated. Julie began to refuse to attend court, became traumatised, and had panic attacks requiring medical intervention. Her refusal to attend left her at risk of arrest. The story of Rosie Fulton, of which I am sure you are all acutely aware, is similar. A Northern Territory resident, she was found unfit to plead by a WA Court after being charged for offenses relating to a motor car. She has spent the last 18 months in Kalgoorlie prison, hardly 39

appropriate accommodation for a woman in need of support due to her cognitive disability. Thank you to the Northern Territory Law Society for asking me to speak today. Julie’s and Rosie’s experiences are typical of the experiences of people with disabilities across Australia. Australians who need communications supports, or who have complex and multiple support needs, are not having their rights protected, and are not being treated equally, in the criminal justice system. This must change. Hence the work of the Australian Human Rights Commission in this area, and our report ‘Equal Before the Law: Towards Disability Justice Strategies’1 launched in February. Last year the Commission identified five key barriers which limit or prevent access to justice for people with disabilities. We heard from victims, witnesses, those accused of crime and offenders. The first barrier concerns programmes, assistance and other community supports addressing violence, prevention and disadvantage, which may not be readily accessible to those with disabilities. One submission told of Sarah, an Aboriginal woman with cognitive impairment, psychosocial disability and health conditions. Sarah began a long pattern of contact with criminal justice and human service agencies at age 12. What became obvious was that there is a lack of appropriate support outside the criminal justice system, and responsibility for addressing her needs was often left to the police and the juvenile justice system. At the

age of 18, she was provided with 24 hour supported accommodation through a Community Justice Program.2 If Sarah had had access to community assistance from an earlier age, would she have had such continual interaction with the criminal justice system? It is often police services which are the fall back position in times of crisis, rather than appropriate community and health services. As was reported in one submission: ‘The police have become the emergency mental health response … for many individuals and families, and they are ill-equipped for the job.’3 The second barrier dealt with the supports people may need to participate in the criminal justice process. Maria, for example, has cerebral palsy and little speech. She wanted to tell police about a sexual assault, but there was no communication support worker to help with the statement. The police relied on Maria’s parents to provide communication support. Maria was uncomfortable giving personal details of the assault to police in front of her parents, so her evidence was incomplete. This caused problems for the investigation, and during the court process. Clearly it is inappropriate for family members to act in the place of communication support workers. Barrier three concerns negative attitudes and assumptions about people with disabilities, which often result in us being viewed as unreliable, not credible or not capable of giving evidence, making legal decisions or participating in legal proceedings. For example, we were

told at our Geelong public meeting that ‘when I attended the police station, the police officer thought I was dumb at first and he didn’t take it seriously.’ Similarly, a disability advocate in Tasmania told us that ‘a victim won’t even get their day in court as the DPP won’t run the case.’ The fourth barrier deals with accommodation and programmes for people deemed ‘unfit to plead’. These people are often detained indefinitely in prisons or psychiatric facilities, without being convicted of a crime. The well-known case of West Australian man Marlon Noble demonstrates this; I invite you to look at one of the Commission’s 20 Years: 20 Stories films entitled ‘Presumed Guilty’.4 The last barrier we identified concerns prisoners. Supports and adjustments may not be provided to prisoners with disabilities so that they can meet basic human needs, and participate in prison life. This can result in delays and difficulties exiting prison, or exiting with successful chances of re-integration. Henry has an acquired brain injury. He wanted to apply for support from Legal Aid to appeal his conviction, and needed help to fill in forms. He found the language complex and difficult to understand. He did not receive assistance in prison to fill out the forms, and filled them out incorrectly. This delayed his application. By the time Henry filled out the forms correctly, his application was outside the time limit. 40


To get a better handle on the impact of these barriers to justice, the Commission undertook a consultation, with public meetings in capital cities and regional areas. From Newcastle in NSW to Roebourne WA, and from Adelaide to Katherine in the NT, we spoke with people with disabilities, their families, carers and advocates, practitioners from police, the courts and corrections services, and Attorneys General. We also received 88 written submissions from individuals, advocacy groups and experts, many of which may be accessed on the Commission’s web site. And the statistics back up what we were hearing. One report found that 90 per cent of Australian women with an intellectual disability have been subjected to sexual abuse at some time during their lives.5 There are currently at least 20–30 people in our prison systems who have not been convicted of an offence, but have been found unfit to plead, and gaols are the only accommodation option. From 1989 to 2011, 105 people were shot by police, and 42 per cent had a mental illness.6 Our evidence also suggests that it is women, children, Aboriginal and Torres Strait Islander people, and people from a culturally and linguistically diverse background

with disabilities, who are even less likely to have equitable access to justice. The case for change is clear. Not only is there a human rights imperative to ensure equality before the law, there is also a strong economic imperative. Cost-benefit analyses indicate significant savings for governments when support is provided early, and diversion options from the criminal justice system are available. For every dollar spent on diversion, between $1.40 and $2.40 in government costs is saved7 – big money when the Australian community spends $11.7 billion annually on the criminal justice system.8 The costs of violence, both personal and economic, are significant. Violence prevention efforts will have positive impacts on both people with disabilities and society as a whole. Our report considers each step of engagement with the criminal justice process – prevention, police, courts and prisons. The report makes 12 general findings. These include that the inability to access effective justice compounds disadvantage experienced by people with disabilities, and leaves them at risk of ongoing violence. It was reported to us that: ‘[a]s a victim of sexual assault I did not have access to sexual assault services … and experienced ‘blame and shame’ from disabil[ity] workers and services’.9 We also found that there is widespread difficulty identifying disability, recognising the need for adjustments and support, and providing that support. A justice from the Queensland Mental Health Court told us: ‘[t]he reality of the Magistrates Court is that it is fast and furious. They have limited resources to detect and identify disability.’ People with disabilities are not being heard because of perceptions we are unreliable, not credible, or incapable of being witnesses. On top of that, erroneous assessments are being made about the legal competence of people with disabilities.

41

available, or not effective due to lack of appropriate supports and services. The NSW Law Reform Commission reported that the formal court process does not provide adequate scope to explore diversionary options due to time constraints and multiple parties required.11 So what does Equal Before The Law conclude? The Commission has formed the view that, in light of the substantial challenges which exist, each jurisdiction in Australia should develop a holistic, over-arching Disability Justice Strategy; these strategies must be developed with the participation of people with disabilities. It is not enough that people with disabilities identify the barriers, it is critical that they are involved in the development and implementation of solutions. Adopting a human rights based approach, those strategies should focus on 5 key outcomes: I. Safety of people with disabilities and freedom from violence; II. Effective access to justice for people with disabilities; III. Non-discrimination; IV. Respect for inherent dignity and individual autonomy, including the right to make one’s own decisions; and V. Full and effective participation in the community. The principles and actions in any such strategy should address: I. Appropriate communication; II. Early intervention and diversion; III. Increased service capacity; IV. Effective training; V. Enhanced accountability and monitoring; and VI. Better policies and frameworks.

A further finding concerned styles of communication and questioning techniques used by police, lawyers, courts and custodial officers which can confuse a person with disabilities. A person with ABI said ‘It’s really scary, they ask you so many questions, pumping too much information into you – it would be great to have an advocate; someone to explain things to take the time.’10

Of course, criminal justice is primarily the province of the states and territories. For this reason, the report does not take the usual course of making recommendations. Rather, it seeks to point out the barriers to justice, highlight existing services and programs, and propose possible actions towards the development of disability justice strategies.

Diversionary measures, too, are underutilised, not

There is great work being done in South Australia with the development of its Disability Justice Plan. The

Australians who need communications supports, or who have complex and multiple support needs, are not having their rights protected.

” South Australian Government intends to use this plan to safeguard the rights of all people with disabilities in their interactions with the criminal justice system, and they have been careful to involve people with disabilities from the outset. I urge governments around Australia to consult with South Australia, and to learn from experiences there. If we coordinate, inform and monitor in a planned manner, barriers will be removed faster, and gaps bridged sooner. The services we have will be improved and new and better ones developed. The human rights of people with disabilities will be better respected, their standard of living will improve, and the criminal justice system will become less of a presence in their lives. Following on from the Report, the Commission has uploaded to its website a database of existing services and programs which provide a more positive pathway through the criminal justice system for people with disabilities. This database will be a useful resource for all practitioners. It will showcase solutions that have been tried in one jurisdiction, and that might work to provide better access to justice for people with disabilities in other settings. The database lists such programs as the Northern Territories’ ‘Sentenced to a Job’ trial program. Low security prisoners are sent to work in real jobs in the local community for award wages. They learn vocational 42


and life skills, and earn money which is available for them upon release. New South Wales’ Life on Track is a case management service that tailors personalised plans for people with disabilities appearing in courts, and links them to appropriate supports and services in the community. And in Queensland the Mental Health Intervention Project is a collaboration between Queensland Police, Health, and Ambulance services. The three agencies regularly meet to identify mental health issues in the local area, discuss complex cases, and develop preventative interventions.

All By Myself: Access to Justice for Self-Represented Applicants in Merits Review Tribunals

Please feel free to access this database via our website. We plan soon to migrate the database to a relevant university or centre of research so that it can continue to be updated and maintained. There is one further matter which I want to raise. It relates more to the civil than the criminal justice system, but is still very relevant to Australians with disabilities. It is the Australian Law Reform Commission’s current inquiry on equality capacity and disability, for which I am a part-time commissioner. It deals with legal barriers for people with disability in decision-making, in various aspects of our lives. Whilst again a federal inquiry in an area where jurisdiction sits primarily with the states and territories, it will propose a set of new decision-making principles, and consider how they might be applied in areas of federal law such as social security law, the national disability insurance scheme, electoral law and federal criminal proceedings to name a few. The same decision-making principles could be applied in state and territory areas of law such as guardianship and administration. Let me return to Equal before the Law. This report does not provide the simple solution for Australians with disabilities of which we may dream. However, the development of disability justice strategies by all jurisdictions, in partnership with people with disabilities, will recognise the impact of disability within the criminal justice system, and provide for better co-ordination of services to address that impact. Systematic change in this area is vital, and it is the responsibility of all of us to work to bring about that change. Australians with disabilities must get an equal chance in our criminal justice system. As Julie’s parents told the Commission, ‘[n]o one should be punished because they have a disability, no one should go to gaol because they have a disability, and their disability certainly should not be criminalised.’

43

By Fatima Paras*

REFERENCES: Graeme Innes AM* Human rights advocate and former Disability Discrimination Commissioner 1.

Australian Human Rights Commission, Equal Before The Law: Towards Disability Justice Strategies, Report (2014).

2.

Australian Human Rights Commission, Access to Justice in the Criminal Justice System for People with Disability, Issues Paper (2013) 6.

3.

Submission No 35 to Australian Human Rights Commission, Access to Justice in the Criminal Justice System for People with Disability.

4.

Marlon Noble: Presumed Guilty (Directed by Paul Bell, Feral Films, 2013) <www.youtube.com/watch?v=Jn8BEyBNdTY>.

5.

Victorian Health Promotion Foundation (VicHealth), Preventing Violence Against Women in Australia (Research Summary, Victorian Health Promotion Foundation, October 2011) <http:// www.vichealth.vic.gov.au/Publications/Freedom-from-violence/ Violence-against-women-in-Australia-research-summary.aspx>.

6.

Australian Institute of Criminology, Police Shootings of People with a Mental Illness (Research in Practice No 34, Australian Institute of Criminology, May 2013) <http://www.aic.gov.au/publications/ current%20series/rip/21-40/rip34.html>.

7.

Ruth McCausland et al, People with Mental Health Disorders and Cognitive Impairment in the Criminal Justice System: Cost-Benefit Analysis of Early Support and Diversion, (Report, University of New South Wales and Price Waterhouse Coopers, August 2013) 12 <http://www.humanrights.gov.au/sites/default/files/document/ publication/Cost%20benefit%20analysis.pdf>.

8.

Australian Institute of Criminology, Australian Crime: Facts and figures: 2011, Chapter 7: Criminal justice resources (2012). At <http://www.aic.gov.au/publications/current%20series/ facts/1-20/2011/7_resources.html>.

9.

Submission No 15 to Australian Human Rights Commission, Access to Justice in the Criminal Justice System for People with Disability, 3.

10.

Victorian Coalition of ABI Service Providers, Submission No 57 to Australian Human Rights Commission, Access to Justice in the Criminal Justice System for People with Disability.

11.

NSW Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System, Report No 135 (2012).

Court proceedings can often be an intimidating process for individuals, particularly for those who appear before courts without legal representation. An alternative body which has been developed to assist socially vulnerable groups are merits review tribunals (‘tribunals’). Tribunals encourage socially disadvantaged groups to seek a review of administrative decisions through their costeffective, informal nature which emphasises fair and just outcomes. With this in mind, it is common for selfrepresented applicants to appear before tribunals. This article will investigate whether tribunals are an effective body to seek justice for self-represented applicants. It will argue that tribunals are effective institutions which effectively break down many of the barriers to justice faced by self-represented applicants, but that improving legal support and addressing some administrative issues will improve tribunals’ ability to cater to self-represented applicants. The argument will focus on examining the procedures and policies of tribunal hearings. This article is divided into two sections. First, the development of Australian tribunals will be discussed in order to explain how tribunals were developed to assist self-represented applicants. Second, analysis into the procedures and policies of a tribunal hearing will be conducted. It is through this analysis that any difficulties experienced by self-represented applicants will be identified. Bringing these issues to the fore can assist tribunals to improve access to justice for self-represented applicants in a tribunal hearing.

A. THE HISTORICAL RELATIONSHIP BETWEEN TRIBUNALS AND DISADVANTAGED GROUPS IN SOCIETY Tribunals began to develop in 19th Century Britain, but, the current structure of tribunals did not emerge until the early 20th Century, as a response to the rise of the welfare state.1 Adjudicative functions were transferred from the courts to tribunals following criticism of the courts from trade unions in relation to the courts’ treatment of claims under the Workmen’s Compensation Act and other legislation that dealt with the hours of work for child factory workers.2 Tribunal structures were further developed by the appointment of a ‘court of referees’ to examine appeals decisions pertaining to unemployment insurance and the National Insurance Act 1911. These two developments were catalysts in tribunals’ non-adversarial and informal nature.3 The Honourable Justice Baker argued that such developments which were in response to the welfare state led to greater access to administrative justice.4 Tribunals were established to be free of political direction other than public decision-makers, have experts from the area of law reviewing disputes and were likely to be quicker, cheaper and friendlier in their dealings with applicants. The role played by tribunals in the legal system changed following the Committee on Administrative Tribunals and Enquiries (Franks Committee) Review into tribunals. 44


Representation will minimise issues arising from tribunal members tempting the possibility of becoming partial in their attempt to inquire during a hearing.

” The Franks Committee shifted the aspirational objectives of tribunals – namely, cheapness, accessibility, freedom from technicality, expedition and the expertise of presiding members – to become their permanent characteristics.5 The shift meant that aims of cost, access, informality and decision-makers from the field in question were no longer aims of tribunals which could be brushed to the side, but, something which had to be embodied by the tribunal. On a theoretical level, self-represented applicants are able to effectively seek justice in tribunals because of their characteristics of specialised knowledge, informality, quick and minimal restriction from technicality and rules of evidence.6 Most selfrepresented applicants do not have the legal expertise to be able to effectively argue their case before a court. Tribunals are an appropriate body to resolve legal issues faced by self-represented applicants because they were established to alleviate many of the problems faced by self-represented applicants in dealing with the technicalities of court processes. Characteristics of UK tribunals heavily influenced the features and structures of Australian tribunals. Most Australian tribunals bear the common principles of ensuring that procedures are carried out in a ‘fair, just, economical, informal and quick’ manner.7 However, there is a conflict between the statutory objectives of tribunals.8 Attempts to have a quick solution to an issue may not 45

result in a fair or just outcome whilst trying to provide a fair hearing may not be economical for the tribunal or any of the parties involved. Meeting the objective of tribunals continues to be a point of contention among administrative law actors as the elements of the objective of tribunals should be weighed equally against each other.9 Questions must be raised regarding whether the objectives of tribunals assist or hinder selfrepresented applicants’ ability to succeed in their appeal. The next section will analyse how tribunals aim to minimise the barriers to justice for self-represented applicants in hearings.

B. PROCEDURES AND POLICIES OF TRIBUNAL HEARINGS WHICH ARE DESIGNED TO ASSIST SELFREPRESENTED APPLICANTS This section will focus on two features of tribunal hearings – the duty to inquire, and the nonapplicability of the rules of evidence – and analyse whether these features hinder access to justice for self-represented applicants in tribunals.

1. The duty to inquire Tribunals are bodies with inquisitorial features. One such inquisitorial feature of a tribunal is its procedural power to ‘inform itself on a matter as it thinks fit’.10 It is a discretionary power of the tribunals.11 There is no obligation on tribunals to apply the power and the circumstances of the matter will dictate when it may need to probe into an issue or fact in order to better inform its decision. Matters where self-represented applicants appear before a tribunal may be a circumstance where a tribunal will use its power to inform itself as it sees fit. As a matter of procedural fairness, tribunals often assist self-represented applicants by helping them frame the legal issue/s at hand and directing them to evidence that legally and logically bears on their argument.12 The need to help self-represented applicants in identifying legal issues by cross-examining witnesses was emphasised in Winn v Blueprint Instant Printing Pty Ltd.13 However, it must be noted that the assistance to be given by the tribunal to applicants is often dependent on the requirements placed on a decision-maker by statute. A more active role played by a tribunal member in proceedings involving self-represented applicants raises the issue of partiality. Groves identifies the possible

conflict:14 a tribunal member could provide procedural fairness by assisting self-represented applicants, yet, it could also make the decision-maker more partial to one party than the other. The conflict essentially stems from a tribunal member attempting to balance two roles: being an investigator and acting as a neutral decision-maker.15 Empirical research conducted into inquisitorial processes in Australian tribunals by Bedford and Creyke revealed that tribunal members are aware of the possibility of acting partially.16 Current safeguards against tribunal members acting partially ensure tribunal members are conscious of their procedural fairness obligations and that they do not extend their assistance to become a form of advocacy for the applicant.17 It is a rather weak preventative measure because it is solely relies on tribunal members to be cautious of their actions during a hearing. A better safeguard must be implemented as tribunal members are only human and balancing the role of decision-maker and investigator is difficult as the line between the two can be blurred in some circumstances. Possible alternatives could include expanding assistance given by legal aid or other community legal centres to self-represented applicants.18 Legal aid has support programs with many tribunals where their solicitors go to a tribunal to give advice to self-represented applicants. Having representatives for applicants removes the need for a tribunal member to be more active in the hearing and can rely on a representative for the applicant to provide the relevant information and issues.

2. Not bound by the rules of evidence One of the procedural rules of tribunals is that they are not bound by the rules of evidence.19 Tribunals are able to examine any evidence that they see fit in order to make a correct or preferable decision. They can also attach varying degrees of ‘weight’ to evidence based on reliability. Self-represented applicants can be disadvantaged by the ability of tribunal members to examine any evidence that it sees fit to make a correct or preferable decision. Applicants may volunteer information to the tribunal that may impact on matters that they may have before the tribunal in the future. It is likely that the information that they communicate to the tribunal will be based on a minimal level of legal knowledge. A legal representative can articulate information to the tribunal that has been considered in relation to other laws and the applicant’s circumstances. This was a problem faced by the applicant in Filsell.20 Mr Filsell was an employee of the Department of Finance

and Administration. In 1995, he suffered an injury which resulted in pain in his neck and shoulders. He claimed for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) and the claim was approved by Comcare. Mr Filsell made another claim for compensation in 1997 for a psychological injury stemming from his employment with the Department. Comcare denied the application and the Administrative Appeals Tribunal (AAT) affirmed the original decision by way of a consent order. In 2006, Mr Filsell made a further claim for compensation for depression and anxiety – it was subsequently denied by Comcare. Mr Filsell appealed the decision and presented medical evidence that certified that his conditions were a consequence of the injury that he suffered in 1995 and work stress. Comcare’s decision in 2006 was affirmed by the authorised review officer (ARO) on the grounds that Mr Filsell did not satisfy the definition of suffering a disease under the SRC Act. In 2007, an ARO revoked the AAT’s affirming decision based on its own reconsideration on the grounds that the 2006 claim for compensation was the same injury claimed in the 1997 compensation. A decision was not substituted in place of the revoked decision because the 1997 claim had already been decided and consequently provided Comcare’s response to the 2006 application. In a review of the ARO’s 2007 decision, Jarvis DP ruled that Mr Filsell’s application should not be dismissed in light of new medical evidence.21 The new evidence differed from one of two medical opinions relied upon by the ARO to reject the 1997 application. Mr Fisell also made reference to having acted under duress when he signed the agreement that gave rise to the consent decision of the Tribunal.22 The presiding member held that claim should be explored separate to the issue raised in the 2009 hearing. Mr Filsell was self-represented in the 2009 hearing. In 2010, the Tribunal considered whether the affirmation of the Tribunal in the 1999 matter, by way of a consent order, was made under duress.23 Transcripts and other pieces of evidence of communication between Mr Filsell and Comcare relating to the 1999 hearing were relied upon by Senior Member Dunne in making the decision. The claim that the consent order was made under duress was dismissed by Senior Member Dunne as Mr Filsell accepted the agreement as he considered other opportunities open to him against the respondent.24 Mr Filsell was able to make a decision, albeit under extreme pressure and reluctance, and the decision 46


was not made with illegitimate pressure from Comcare’s representatives. For self-represented applicants, such as Mr Filsell, legal representation could protect them from providing possibly detrimental evidence to the Tribunal. In the case of Mr Filsell, a review of duress would not have arisen if he was legally represented in the 2009 hearing. A legal representative could have inquired about the circumstances surrounding Mr Filsell’s agreement with Comcare and also considered Mr Filsell’s claim in light of a legal definition of duress. Though Mr Filsell had the assistance of an advocate in the 2010 matter, the advocate was not a legal representative and could not give legal advice to Mr Filsell in relation to the strength of his argument. Essentially, legal representation provides a safeguard for applicants by not providing the tribunal with evidence which is detrimental to the applicant in any future related matters between the same parties. Tribunals should encourage selfrepresented applicants to appear before the tribunal with legal representation for this very reason. Encouragement can be in the form of explicitly asking the applicant to find legal representation or even building better relationships with legal aid or community legal centres.

C. CONCLUSION Tribunals have been designed to assist society’s most vulnerable and to encourage them to bring forward cases against government departments with as little hassle for the applicant as possible. It is for this reason that most applicants before a tribunal appear without legal representation. The process involved in appealing an administrative decision and the tribunal itself ensures that it is not an intimidating environment towards selfrepresented applicants. This essay examined various tribunals to determine their capacity to provide self-represented applicants access to justice. It was argued that tribunals are bodies which effectively provide justice for self-represented applicants but providing legal support and improving small administrative matters will enhance tribunals’ ability to cater for self-represented applicants. After a discussion of the historical background of tribunals, this essay focused on tribunal hearings, in particular a tribunal’s duty to inquire and the fact that tribunals are not bound by evidence. The importance of having legal representation to support applicants was explained because of the inherent problem that self-represented applicants have a minimal level of legal knowledge. Representation can minimise any 47

problems faced by self-represented applicants in relation to the partiality of tribunal members or communicating detrimental evidence to the tribunal.

REFERENCES Fatima Paras* Juris Doctor candidate, UNSW 1.

See also Chantal Stebbings, Legal Foundations of Tribunals in Nineteenth-Century England (Cambridge University Press, 2007).

2.

Paul P Craig, Administrative Law (Sweet & Maxwell, 7th ed, 2012) 48.

3.

Rachel Bacon, Amalgamating Tribunals: A Recipe for Optimal Reform (PhD thesis, University of Sydney, 2004).

4.

Michael Baker, ‘The Emergence of the Generalist Administrative Tribunal in Australia and New Zealand’ (Paper presented at 8th Annual AIJA Tribunal’s Conference, Sydney, 9–10 June 2005) 8.

5.

Hazel Genn, ‘Tribunal Review of Decision-Making’ in Genevera Richardson and Hazel Genn (eds), Administrative Law & Government Action: The Courts and Alternative Mechanisms of Review (Oxford University Press, 1994).

6.

Hazel Genn, ‘Tribunals and Informal Justice’ (1993) 56(3) Modern Law Review 393, 395–6.

7.

See, eg, Administrative Appeals Tribunal Act 1975 (Cth) s 2A; Civil and Administrative Tribunal Act 2013 (NSW) ss 3, 36(1); ACT Civil and Administrative Tribunal Act 2008 (ACT) s 7.

8.

Robin Creyke, ‘Tribunals and Merits Review’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 393, 413.

9.

Garry Downes, ‘Tribunals in Australia: Their roles and responsibilities’ (2004) 84 Reform 4.

10.

See, eg, Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(c); Civil and Administrative Tribunal Act 2013 (NSW) s 38(2); Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(c).

11.

Affirmed in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (French CJ and Bell J).

12.

Matthew Groves, ‘The Duty to Inquire in Tribunal Proceedings’ (2011) 33 Sydney Law Review 177, 194.

13.

[2002] VSC 295 (2 August 2002) [9].

14.

Groves, above n 12, 195.

15.

Genn, above n 6, 406.

16.

Narelle Bedford and Robin Creyke, ‘Inquisitorial Processes in Australian Tribunals’ (Report, The Australian Institute of Judicial Administration, 2006) 25.

17.

Downes, above n 9, 8.

18.

See Legal Aid New South Wales, Help at NSW Courts and Tribunals <http://www.legalaid.nsw.gov.au/get-legal-help/help-at-court/listof-courts>; Legal Aid ACT, Lawyers at Court <http://www.legalaidact. org.au/whatwedo/lawyersatcourt/>; Migration Review Tribunal/ Refugee Review Tribunal, Support Organisations <http://www.mrt-rrt. gov.au/Apply-for-review/Support-and-advice/Support-organisations. aspx>.

19.

See, eg, Civil and Administrative Tribunals Act 2013 (NSW) s 38(2); Administrative Appeals Tribunal 1975 (Cth) s 33(1)(c); Queensland Civil and Administrative Tribunals Act 2009 (Qld) s 28(3)(b).

20. Re Filsell v Comcare (2010) 53 AAR 476. 21.

Filsell v Comcare (2009) 49 AAR 506.

22.

Ibid [63].

23.

Re Filsell v Comcare (2010) 53 AAR 476.

24. Ibid [30]–[32].

Equality Before the Law: Including for Asylum Seekers? Joyce Chia*

All persons shall be equal before the courts and tribunals.1 Equality before the law is a fundamental principle both of human rights law and in the common law. In Australia, however, this principle has increasingly been challenged in relation to asylum seekers. Perhaps most starkly, asylum seekers who arrive by boat are treated differently from those who arrive by plane. Asylum seekers are also subject to distinctions that do not apply to other non-citizens. Finally, non-citizens including asylum seekers are treated differently from citizens in ways that are difficult to justify ‘on objective and reasonable grounds’.2 This article reviews the main ways in which Australian refugee law and policy challenge the principle of equality, focusing on three main aspects: access to the territory, access to the legal system (including courts and tribunals), and equality of arms.

I. ACCESS TO THE TERRITORY The most significant challenge for asylum seekers has been their physical exclusion from Australia itself. This is not a new practice; between 2001 and 2006, the Australian Government adopted the well-known policy of ‘turning boats back’ to Indonesia.3 This practice was reinstated on 18 September 2013 under Operation Sovereign Borders, a military-led joint taskforce charged with intercepting boats of irregular migrants. Irregular migrants intercepted under Operation Sovereign Borders have been mainly transferred to

detention centres in Nauru or Papua New Guinea under the ‘offshore processing’ policy. These centres were reopened in September and November 2012 respectively.4 However, these gained new significance on 19 July 2013, when the Australian Government announced that asylum seekers arriving irregularly would no longer be resettled in Australia.5 Under arrangements with these countries, Australia funds the costs of offshore processing (including detention and resettlement), but those countries are formally responsible for administering them.6 Australia also conducts physical exclusion in the lesser known form of screening at airports.7 This has been built upon more recently in ‘enhanced screening’, principally for Sri Lankan Tamils.8 Both forms involve departmental officials ‘screening in’ people who raise protection claims, with review by a second departmental officer, and returning those ‘screened out’ rapidly. Both processes involve little independent scrutiny, with access to legal advice provided only upon request.9 This physical exclusion is complemented by strict control of legal migration routes. Under Australia’s universal visa regime, visas are imposed on all noncitizens10 and this visa regime is enforced by sanctions on airlines or other carriers that carry unauthorised passengers.11 The Australian government has also encouraged other countries to impose their own visa 48


restrictions, such as influencing Indonesia to cancel visa on arrival arrangements for Iranians, in an attempt to reduce the numbers of irregular asylum seekers arriving from Indonesia.12 Denying access to the Australian territory does not mean Australia is absolved of all legal responsibility. International legal obligations relating to the law of the sea, for example, continue to apply to Australia’s actions in turning asylum seekers back to Indonesia,13 and Australia remains jointly and severally responsible with Papua New Guinea and Nauru for any violations of the Refugee Convention or human rights in relation to offshore processing.14 Australia also retains other general legal obligations, including under tort law for breaches of the duty of care in relation to detained asylum seekers.15 Nevertheless, offshore activities create very real legal problems. For example, although asylum seekers are detained in PNG under arrangements with the Australian Government, the constitutional challenge to those arrangements failed in June 2014 principally because the Australian legislation spoke only of transferring asylum seekers, and did not expressly require their detention or resettlement overseas.16 In the same case, an argument that this detention offended the principle of exclusive judicial power under the Australian Constitution also failed 49

because the detention was authorised under PNG and not Australian law.17 Denying access to the territory also significantly restricts access to justice in practice. Although asylum seekers in Australia have very limited access to legal representation (as discussed below), access to legal representation and the courts in Papua New Guinea and Nauru is even more restricted.18 There are also concerns about the strength of the rule of law in these countries. In 2014, the Chief Justice of Nauru resigned after its government deported its Chief Magistrate following an adverse ruling in relation to Australian asylum seekers.19 The Papua New Guinean government has intervened to forestall an inquiry initiated by a local judge into the human rights of detainees on Manus Island,20 and has also amended the right to liberty in the PNG Constitution.21

II. ACCESS TO THE LEGAL SYSTEM Australian law also denies irregular asylum seekers access to the legal system — that is, to the entire system of refugee status determination set out in the Migration Act 1958 (Cth) (‘Migration Act’). Again, this is not a new practice. In 2001, the legislation effecting the ‘Pacific solution’ introduced the concept of ‘excising’ the parts of Australian jurisdiction outside of the Australian

mainland.22 Persons who arrived on ‘excised’ places were barred from applying for a protection visa (the visa for refugee protection) unless the Minister chose to exercise a personal, non-compellable power in the asylum seeker’s favour (known as ‘lifting the bar’).23 Prior to 2011, asylum seekers in excised places were subject to a non-statutory refugee status determination process known as Refugee Status Assessment, with an appeal to an Independent Merits Reviewer. However, a High Court decision found that procedural fairness applied to these processes, and that such assessments still had to apply Australian law, including court decisions interpreting the Refugee Convention.24 This led eventually to a government decision that from March 2012 the statutory process, including access to the Refugee Review Tribunal, would apply to both irregular and regular asylum seekers.25 In 2013, the logic of preventing applications for protection visas was extended to all persons arriving irregularly, including those who made it to the Australian mainland.26 This legislation was intended to effect the recommendations of an ad hoc report by a specially commissioned Expert Panel in 2012.27 The result is that no irregular asylum seeker has any legal avenue to claim protection in Australia, unless the Minister chooses to

allow the person to do so. While, in the past, Ministers did choose to exercise this discretion, the present Minister has indicated that it will not be used until the Government succeeds in introducing temporary protection visas.28 This is, perhaps, the clearest breach of the principle of equality before the law between irregular boat arrivals and asylum seekers who arrive by plane. Similar clauses apply to other categories of people. For example, people granted temporary safe haven visas are also barred from applying for other kinds of visas.29 Following the Australian Government’s failed attempts to re-introduce temporary protection visas, these temporary safe haven visas, originally introduced for Kosovar and East Timorese refugees, have been granted to asylum seekers instead of permanent protection.30 Another section prevents subsequent applications for protection visas by people who have previously been refused a protection visa or had one cancelled.31 Under legislation currently being considered by the Australian Parliament, this bar would extend to minors or people who, by reason of mental impairment, could not understand their original application.32 There is also a current Bill before Parliament which proposes to automatically deny protection visas to asylum seekers in cases where a decision-maker 50


“... asylum seekers who arrive by boat are treated differently from those who arrive by plane. Asylum seekers are also subject to distinctions that do not apply to other non-citizens.

is satisfied that they have provided false identity, nationality or citizenship documents.33 This would also be a clear breach of the principle of equality before law in relation to irregular asylum seekers, as well as a direct breach of article 31 of the Refugee Convention which prohibits penalising irregular asylum seekers. For those who can be assessed under the Migration Act, their access to courts and tribunals is significantly limited. The Act provides for an initial decision by a Departmental official, followed by independent merits review by the Refugee Review Tribunal and judicial review by the courts.34 However, if a person has not applied within the statutory time limit of 28 days,35 the Tribunal cannot extend this time, even if the person’s lawyer has been negligent.36 This deprives the asylum seeker of a merits review, with their only remedy the more limited (and more expensive) judicial review in the courts. A similar non-extendable time limit applies to noncitizens applying for review to the Migration Review Tribunal.37 In contrast, time limits to the Administrative Appeals Tribunal are extendable,38 raising the question of whether this distinction can be objectively and reasonably justified. There have also been attempts, some more successful than others, to limit the ability of courts to review decisions. In 2001, for example, a privative clause was inserted into the Migration Act which provided that most migration decisions were not reviewable by the courts,39 except for the High Court’s constitutional power of judicial review. However, the High Court interpreted this clause in a way that greatly limited the application of the section.40 In another High Court case, a clause inserting non-extendable time limits on the federal courts was held to be constitutionally invalid in relation to the High Court,41 after which the time limits for federal courts were also made extendable.42 Perhaps the starkest challenge to the principle of equality, however, is the fact that non-citizens are unable to substantively challenge their detention under the Migration Act,43 which is also a clear breach of Article 9(4) of the International Covenant on Civil and Political Rights (‘ICCPR).44 In the famous case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, where Australia’s first mandatory detention regime was challenged, the High Court expressly acknowledged that administrative detention would not be constitutional in relation to citizens, but was in relation to non-citizens.45

51

III. EQUALITY OF ARMS The principle of equality of arms ‘means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.’46 There are two main challenges to this principle: legal advice and representation, and the provision of information. Asylum seekers in Australia have very limited access to legal advice and representation. The principal form of government funded legal assistance has been through the Immigration Advice and Application Assistance Scheme (IAAAS). However, from 31 March 2014, the Scheme no longer provides funding for merits review or for irregular migrants (whether arriving by air or by boat).47 This has threatened the sustainability of specialist legal services.48 Even before these cuts, asylum seekers who were represented were not always accompanied to the interview with the Departmental official – which forms the basis of the critical initial decision – or to the Refugee Review Tribunal. Few asylum seekers are represented at the court level.49 Further discouraging litigation, those who fail at the Refugee Review Tribunal are required to pay a ‘fee’ of $1,54050 while, in court, costs are awarded against those who fail. Another challenge is that asylum seekers are not automatically given access to relevant information held by the Department. Instead, they must file freedom of information requests to access their own information. Nor does an asylum seeker have equal access to the objective information about the country of origin relied upon by the Department of Immigration. Since 1 July 2013, this has been compiled by the Department of Immigration itself rather than the independent Refugee Review Tribunal.51 Further, under a ministerial direction country assessments prepared by the Department of Foreign Affairs and Trade (DFAT) must be taken into account.52 Both the Department and Tribunal have regularly made specific requests to DFAT in relation to refugee applications. The Refugee Review Tribunal is not required to put country information adverse to a person’s claim to that person for a response,53 although this would be required by the common law as a matter of procedural fairness.54

The looming challenge is that of a current proposal to ‘fast track’ asylum seekers, based on a flawed UK model.55 While the details of this proposal have not yet been made clear, this compression of time clearly has implications for both access to the courts and tribunals, and the principle of equality of arms.

Equality before the law: but not for asylum seekers? The guarantee of equality before the law in Article 14(1) of the ICCPR applies to asylum seekers and refugees.56 It includes within it the concepts of access to the courts, equality of arms, and non-discriminatory treatment of parties.57 Article 31 of the Refugee Convention also prohibits contracting States from imposing penalties on account of the illegal entry or presence of refugees, provided they present themselves without delay and show good cause for their illegal entry or presence. There are real questions about whether the distinctions in Australian refugee law between regular and irregular asylum are compatible with these obligations. Finally, Article 16 of the Refugee Convention guarantees refugees ‘free access to the courts of law’. It is true, however, that international law has generally countenanced a lesser standard of procedural protection for asylum seekers. Article 13 of the ICCPR provides that in expulsion decisions, aliens lawfully in the territory have the right to submit reasons and have the case reviewed by, and be represented for the purpose before, competent authorities, except where compelling reasons of national security are otherwise required. This is mirrored in article 32(2) of the Refugee Convention, which also provides some other limitations on the power to expel. The Council of Europe procedural guarantees – afforded by the equivalent article 6 of the European Convention on Human Rights – have not been extended to immigration proceedings.58 The common law has provided more fertile ground; in 1985 the High Court reversed its earlier decision that procedural fairness did not apply to asylum seekers,59 and more recently these common law principles were applied to a ‘non-statutory’ assessment process.60 However, the common law remains susceptible to frequent legislative amendment in this contested policy area. Perhaps the attitude to equality before law for asylum seekers (and other non-citizens) is most clearly shown in the fifteen provisions of the Migration Act codifying or excluding natural justice.61

52


19.

Jane Lee, ‘Nauru Chief Justice Quits, Citing Rule of Law Breach’ The Age (online), 12 March 2014 <http://www.smh.com.au/federal-politics/ political-news/nauru-chief-justice-quits-citing-rule-of-law-breach20140312-34n3c.html>.

20. Australian Associated Press, ‘Manus Island: judge launches new inquiry after PNG accuses him of bias’ The Guardian (online), 22 March 2014 <http://www.theguardian.com/world/2014/mar/22/manus-islandjudge-launches-new-inquiry-after-png-accuses-him-of-bias>; Michael Gordon and Sarah Whyte, ‘Papua New Guinea Aims to Stop Manus Island Inquiry as New Legal Bid Begins’, Sydney Morning Herald (online), 25 March 2014 < http://www.smh.com.au/federal-politics/ political-news/papua-new-guinea-aims-to-stop-manus-island-inquiryas-new-legal-bid-begins-20140324-35e89.html>. 21.

Australian Broadcasting Corporation, ‘PNG Amends Constitution to Protect Manus Detention Centre’ NGPacific Beat, 3 April 2014 (Loani Henao) <http://www.radioaustralia.net.au/international/radio/ program/pacific-beat/png-amends-constitution-to-protect-manusdetention-centre/1290320>.

22. Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). 23. Migration Act s 46A, as inserted by Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) sch 1, item 4. 24. Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (‘Offshore Processing case’).

REFERENCES: Joyce Chia* Senior Research Associate at the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW. 1.

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.

8.

See also Savitri Taylor, ‘Rethinking Australia’s Practice of ‘Turning Around’ Unauthorised Arrivals: The Case for Good Faith Implementation of Australia’s Protection Obligations’ (1999) 11 Pacifica Review: Peace, Security & Global Change 43.

25. Australian Government Department of Immigration and Citizenship, Implementation of a Single Process for Illegal Maritime Arrivals (Questions and Answers) <https://www.immi.gov.au/visas/ humanitarian/_pdf/implementation_single_process_ima.pdf>.

Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: ‘Enhanced Screening’ and ‘Fast Track Policies’ (7 November 2013) <http://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre. unsw.edu.au/files/enhanced_screening.pdf>.

26. Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) sch 1, items 10–14.

2.

Human Rights Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to Fair Trial, 90th sess, UN Doc CCPR/C/GC/32 (23 August 2007) 3[9].

3.

For a brief summary, see Andrew & Renata Kaldor Centre for International Refugee Law ‘Turning Back Boats’ (,4 August 2014). <http://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu. au/files/turning_back_boats_factsheet_04.08.14.pdf >; for a detailed history, see David Marr and Marian Wilkinson, Dark Victory (Allen & Unwin, 2003).

9.

Senate Legal and Constitutional Affairs Legislation Committee , Budget Estimates, above n 7, 62.

10.

Migration Act ss 13–14. Most New Zealand citizens, however, are granted a ‘special category visa’ which deems them to have a visa under s 32.

11.

Migration Act ss 213–214.

James Grubel, ‘Australia Reopens Asylum Detention in Nauru Tent City’ Reuters (online), 14 September 2012 <http://www.reuters.com/ article/2012/09/14/us-australia-asylum-idUSBRE88D07120120914>; Simon Cullen, ‘First Asylum Seekers Arrive on Manus Island’, ABC News (online), 21 November 2012 <http://www.abc.net.au/news/201211-21/first-asylum-seekers-arrive-on-manus-island/4383876>.

12.

Tanya Plibersek, ‘Australia Must Work to Improve Its Image in Indonesia’ The Guardian (online), 5 March 2014 <http://www. theguardian.com/commentisfree/2014/mar/05/australia-must-work-toimprove-its-image-in-indonesia>.

4.

5.

6.

7.

53

Asylum Seekers Arriving in Australia by Boat to be Resettled in Papua New Guinea’, ABC News (online) 20 July 2013 <http://www.abc.net. au/news/2013-07-19/manus-island-detention-centre-to-be-expandedunder-rudd27s-asy/4830778>. Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues, Australia–Papua New Guinea, signed 6 August 2013; Regional Resettlement Arrangement between Australia and Papua New Guinea, Australia–Papua New Guinea, signed 19 July 2013; Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues, Australia–Nauru, signed 3 August 2013. Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Estimates (2013) 45–7 (‘Budget Estimates’).

13.

14.

Andrew & Renata Kaldor Centre for International Refugee Law, Submission No 1 to Senate Standing Committee on Foreign Affairs Defence and Trade, Inquiry into the Breach of Indonesian Territorial Waters, (19 March 2014). Andrew & Renata Kaldor Centre for International Refugee Law, Submission No 9 to the Senate Standing Committee on Legal and Constitutional Affairs, Incident at the Manus Island Detention Centre (2 May 2014) 6.

27. Angus Houston, Paris Aristotle and Michael L’Estrange, ‘Report of the Expert Panel on Asylum Seekers’ (Report, Expert Panel on Asylum Seekers) (August 2012) <http://expertpanelonasylumseekers.dpmc. gov.au/sites/default/files/report/expert_panel_on_asylum_seekers_ full_report.pdf>. 28. Jonathan Swan, Mark Kenny, and Michael Gordon, ‘Scott Morrison Being ‘Mean for the Hell of It’ to Asylum Seekers: Labor’, Sydney Morning Herald (online), 4 December 2013 <http://www.smh.com.au/ federal-politics/political-news/scott-morrison-being-mean-for-the-hellof-it-to-asylum-seekers-labor-20131204-2ypst.html>. 29. Migration Act s 91K. There are similar provisions in relation to those who have rights in relation to ‘safe third countries’: s 91E, and dual nationals with access to protection in the other country of nationality: s 91P. On the use of temporary safe haven visas, see Andrew & Renata Kaldor Centre for International Refugee Law Temporary Humanitarian Concern Visas (25 July 2014) <http://www.kaldorcentre.unsw.edu. au/sites/kaldorcentre.unsw.edu.au/files/temporary_humanitarian_ concern_visa.pdf >. 30. Ibid 1. 31.

Migration Act s 48A.

15.

Ibid 5–6.

32. Migration Legislation Amendment Bill (No 1) 2014 sch 1, item 3.

16.

Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 690, 697 [32].

33. Migration Amendment (Protection and Other Measures) Bill 2014.

17.

Ibid 698 [37].

18.

For Nauru, see Law Council of Australia, Q & A on Access to Legal Advice on Nauru (2014) <http://www.lawcouncil.asn.au/lawcouncil/ images/LCA-PDF/a-z-docs/QA_on_Legal_advice_for_Asylum_Seekers_ on_Nauru.pdf>. For Papua New Guinea, the Human Rights Law Centre has advised the author of difficulties in finding reasonable legal advice and representation in PNG.

34. Migration Act pt 2, div 3 and pt 7, div 2.The Refugee Review Tribunal will be merged with other federal administrative tribunals by 1 July 2015: Migration Review Tribunal and Refugee Review Tribunal, Tribunals Amalgamation (1) (15 May 2014) < http://www.mrt-rrt.gov.au/ About-Us/News/Tribunals-amalgamation-(1).aspx >. 35. Migration Act s 412. 36. SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 (21 December 2012).

37. Migration Act s 347. 38. The time limits and their sections are prescribed under different statutes: Administrative Appeals Tribunal Legal and Policy Section, Time Limits List (31 December 2013) Adminisrative Appeals Tribunal < http://www.aat.gov.au/docs/TimeLimitsList31December2013.pdf> 39. Migration Act s 474. 40. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 41.

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.

42. Migration Legislation Amendment Act (No 1) 2009 (Cth) sch 2. 43. Under s 189 of the Migration Act, an officer must detain ‘unlawful non-citizens’. The court is therefore limited to reviewing whether the person is an ‘unlawful non-citizen’. 44.

A v Australia, Communication No 560/1993, UN Doc CCPR/ C/59/D/560/1993 (1997).

45. (1992) 176 CLR 1. 46. Human Rights Committee, General Comment No 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 90th session, UN Doc CCPR/C/GC/32 (23 August 2007). 47. Australian Government Department of Immigration and Border Protection, Fact Sheet 63 ImImmigration Advice and Application Assistance Scheme (7 May 2014) <https://www.immi.gov.au/media/ fact-sheets/63advice.htm>. See also Andrew & Renata Kaldor Centre for International Refugee Law, Fact Sheet: Legal Assistance for Asylum Seekers (30 October 2013) <http://www.kaldorcentre.unsw.edu.au/ sites/kaldorcentre.unsw.edu.au/files/legal_assistance_30.10.13.pdf>. 48. For example, Refugee Advice & Casework Service in NSW reports that this would result in a removal of 76 per cent of their funding: Refugee Advice & Casework Service, ‘Annual Report 2012/2013’ 17 <http://racs. org.au/RACS%20201213%20Annual%20Report_web.pdf>. 49. Data on self-represented litigants remains difficult, but at the High Court in 2009–10, 93 per cent of immigration applications in 2009–10 were unrepresented, and at the Federal Court most of those selfrepresented were mainly involved in migration appeals. The Federal Circuit Court does not capture records in respect of migration appeals: E Richardson, T Sourdin and N Wallace, ‘Self-Represented Litigants: Literature Review’ (Literature Review, Australian Centre for Court and Justice Innovation, 24 May 2012) 26 <http://www.law. monash.edu.au/centres/acji/projects/self-represented-litigants/selfrep-litigant-lit-review-accjsi-24-may-2012.pdf>. 50. Migration Regulations 1994 (Cth) reg 4.31B. 51.

‘Country of Origin Information Changes’ (29 July 2013) <http:// www.mrt-rrt.gov.au/About-Us/News/Country-of-Origin-Informationchanges.aspx>.

52. Ibid. 53. Migration Act s 424A(3). 54. Offshore Processing case (2010) 243 CLR 319, 356 [91]. 55. Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: ‘Enhanced Screening’ and ‘Fast Track Policies’, above n 8. 56. UN Human Rights Committee, General Comment No 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial above n 46, 3. 57. Ibid. 58. Council of Europe/European Court of Human Rights, Guide on Article 6: Right to a Fair Trial (Civil Limb) (1 May 2013) 11, [40]. 59. Kioa v West (1985) 159 CLR 550. This reversed the earlier decision in Salemi v MacKellar (No 2) (1977) 137 CLR 396. 60. Offshore Processing case (2010) 243 CLR 319. 61.

Migration Act ss 51A, 97A, 118A, 127A, 198AE, 198AB, 198AD, 306AG, 306AGAC, 311L, 357A, 422B, 500A, 501, 501A.

54


“... an integral component of access Does a Bill of Rights Necessitate Better Protection of the Right to Legal Representation?

to justice is that all potential litigants

Chantal Tanner*

Few countries recognise a freestanding entitlement to publicly funded legal representation.1 Rather, in most jurisdictions this right is embedded in an individual’s entitlement to a fair trial. But arguments in favour of a freestanding right to legal representation are not new concepts. In 1932, Sutherland J of the US Supreme Court stated that: ‘[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.’2 What Sutherland J describes are the philosophical underpinnings for the notion of government funded legal representation. This is that an integral component of access to justice is that all potential litigants have an unfettered opportunity to bring their case before the courts.3 The doctrine of the rule of law and principles of democracy necessitate a system that can protect society’s most vulnerable citizens. As such, it is the state’s responsibility to facilitate access to such representation. Thus, when an individual is forced to submit to legal processes in the absence of counsel, as a result of financial circumstances, this becomes an issue of public interest. A common sentiment that arises in Australian public interest discourse is that our lack of constitutional rights has significant bearing upon the country’s legal capacity to guarantee the human rights of its citizenry. Some advocates believe that these constitutional deficits 55

could be rectified if Australia were to adopt a Federal Human Rights Act.4 But calls for either the extension of constitutional guarantees or the enactment of a national statutory charter of rights are met with a fierce rhetoric of opposition and ideological rejection.5 This article considers whether Bills of Rights actually work in protecting the right to legal representation. Would the enactment of a constitutional or statutory Bill of Rights (‘BOR’) create more fertile grounds for enabling access to justice in the courts? Or are other fundamental structural factors, such as an effective judiciary and stable democratic institutions, the determinative factors in effective protection of one’s rights? In answering these questions, the case studies that will be examined are the right to legal representation in the context of South Africa, the United Kingdom (‘UK’) and Australia. The right to legal representation is critical to achieving full and effective access to justice.

APPROACHES TO RIGHTS PROTECTION The constitutional domain often functions as both a creative source, as well as an ongoing check, on government power.6 Indeed, some argue that the doctrines and mechanisms characterised in a country’s constitution are reflective of the normative values within the legal system as a whole.7

have an unfettered opportunity to bring their case before the court.

Today, a large number of countries have adopted a constitutional body of rights, which can be leveraged against abuses of government authority.8 A constitutional BOR empowers a country’s highest court to invalidate laws of parliament, which encroach upon such fundamental rights.9 The logic behind this model of rights protection is explained by leading juristic philosopher Professor Ronald Dworkin: In a real democracy liberty and minorities have legal protection in the form of a written constitution that even parliament cannot change to suit its whim or policy. Under that vision of democracy, a bill of individual constitutional rights is part of fundamental law.10 A second prominent model, which offers a halfway house between constitutional rights protections and a complete omission of domestic human rights defences, is a statutory BOR. Such legislation requires courts to interpret and develop laws accordance with human rights.11 Sometimes referred to as the ‘Parliamentary model’, a statutory BOR seeks to protect rights in a manner that is consistent with the Westminster philosophy of Parliamentary Sovereignty. In contrast to the constitutional model, a statutory BOR does not empower the judiciary to strike down legislation. This form of ‘weak Judicial Review’ is devised to counter the potential threats of an overtly activist judiciary, in order to maintain parliament’s status as the final decision maker in conflicts of law.12 This means that even if

legislation is in direct breach of a right, the courts do not have the power to abolish that law. The extent of the court’s authority is limited to issuing a ‘declaration of incompatibility’.13 Australia is an exception amongst democratic nations, as it is the only such country that has abstained from institutionalising any form of nationalised BOR.14 This omission does not mean that rights are entirely unprotected.15 Instead, Australia maintains an informal ad-hoc method of legal rights protections. Indeed, the country’s constitutional framers did provide a handful of disparate expressed rights.16 As well as this, the High Court has inferred a set of ‘silent constitutional principles’17 or implied rights18 within the text and structure of the constitutional document.19 Complementing these constitutional principles are a range of individual laws implemented to further protect human rights.20 In Australia, there is strong opposition to the enactment of a nationalised BOR in any form.21 The crux of the argument against a BOR is that the existing constitutional system is capable of guaranteeing rights protection via the country’s strong democratic institutions and a prevalent rights culture within the national psyche.22 Those who criticise the concept of enshrined rights argue that a BOR only offers illusory protections.23

56


THE RIGHT TO LEGAL REPRESENTATION UNDER DIFFERING RIGHTS PROTECTION MODELS The right to legal representation, or the entitlement to publicly funded legal counsel, is an exemplary case study against which to test these arguments. It is an issue that is particularly burdensome upon the socially and economically disadvantaged, and as such, provides fertile grounds for the advancement of public interest jurisprudence. This article will now consider particular instances of public interest litigation concerned with achieving or protecting the right to legal representation, in the context of three different constitutional rights settings.

The Constitutional Bill of Rights: South Africa The most comprehensive constitutional BOR in the world is contained in the post-apartheid South African Constitution.24 Unlike most countries, the South African BOR does provide a freestanding entitlement to legal representation. Section 35(2)(c) sets out that every person detained by the law has the right ‘to have a legal practitioner assigned … by the State and at State expense, if substantial injustice would otherwise result.’25 The inclusion of section 35(2)(c) was no doubt a great theoretical victory for the indigent accused. But what this right meant in substance was an issue that still had to be settled by the judiciary.26 This provision27 was clearly tested in the case of S v Vermaas; S v Du Plessis.28 The question brought before the court was whether this constitutional entitlement to legal representation must be provided at state expense.29 The answer provided by the Constitutional Court was a staunch affirmation that there is a positive duty placed upon the South African government to provide publicly funded legal counsel to those who could not otherwise afford such representation. The court commented that in the year since the Constitution had come into force30 neither financial nor administrative structures had been instituted to implement this provision. The judges insisted that without mechanisms of enforcement the right provided by this provision is ‘an empty gesture and makes a mockery of the Constitution.’31

The Statutory Bill of Rights: United Kingdom It was under the influence of the ‘parliamentary model’ of the BOR that the UK’s human rights legislation32 (‘HRA’) 57

was constructed.33 Taking origins from the European Convention on Human Rights,34 article 6 of the HRA is a statutory enshrinement of the right to a fair trial. In broad terms, this right entitles an accused to a hearing before an independent and impartial tribunal.35 When a charge is of a criminal nature, the accused is permitted to defend oneself ‘through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.’36 The validity of this criminal based limitation for accessing the right to legal representation was challenged in the European Court of Human Rights (‘ECHR’) in the case of Steel & Morris v The United Kingdom.37 McDonalds had sued Steel and Morris for distributing leaflets containing damaging and defaming allegations against the company. The domestic trial lasted a total of 313 days. Unable to afford counsel, Steel and Morris were refused publicly funded legal representation and were forced to represent themselves throughout the proceedings. The domestic case was found in favour of McDonalds.38 An appeal was brought before the ECHR, on the grounds that Steel and Morris were denied a fair trial due to the government’s failure to provide them with legal assistance. Whilst the appeal was not based on Article 6 of the HRA itself,39 it did require the ECHR to interpret the question of ‘whether the provision of legal aid was necessary for a fair hearing.’40 The Court determined that a failure to provide legal aid, even in a civil proceeding, was a deprivation of these two individuals’ right to effectively put their case before the court, and as such is a deprivation of the right to a fair trial. The ECHR stated that individual countries are at liberty to determine how they dispense this duty to their citizens; legal aid is one such means. Nonetheless, disparity in legal assistance will in certain circumstances give rise to an unfair trial.41

Piecemeal Rights Protections: Australia In the absence of either a constitutional or a statutory BOR, it is often insisted that the Australian common law ‘plays a role as both a source and protector’ of human rights.42 Whilst the judiciary does not function in a lawmaking capacity, they have interpretative powers that can limit the authority of those who do.43 In addition to this authority, there is a common law presumption that judges must exercise their decision-making power against the abrogation of fundamental rights.44

As a general proposition, the Australian High Court has applied the right of an accused person to access a fair trial.45 In the case of Dietrich v The Queen,46 the Court acknowledged legal representation as an essential element in a fair trial. However, they did not recognise an absolute right for an indigent accused to be provided with publicly funded legal representation.47 Instead, the majority determined that in charges of serious criminal offences, a court has the power to stay a legal proceeding that is likely to result in a miscarriage of justice or an unfair trial. Thus if a criminally accused defendant is unrepresented at trial, through no fault of his or her own, the trial cannot commence until legal representation is obtained. In short, the Australian court was unwilling to enliven a ‘new quasi-constitutional right to state funded counsel.’48

THE EFFECTIVENESS OF LITIGATING ON THE RIGHT TO LEGAL REPRESENTATION With regard to discussing the right to legal representation, Melina Buckley provides a description of the ideal model that the right should be based upon. Her description provides an apt measure to contrast against in considering the realisation of this right in the context of South Africa, the UK and Australia. Buckley states that: The objective of test case litigation would be to move away from a case-by-case approach and to obtain a systemic remedy. One possibility would be to seek … a judicial statement of principle recognising the right to legal representation where individuals, unable to retain counsel without undue hardship, are faced with a legal situation that jeopardizes their or their families’ liberty, livelihood, health, safety, sustenance or shelter.49 In short, Buckley’s position is that an ideal realisation of the right to legal representation must include state funded representation for both criminal and civil matters. Section 35(2)(c) of the South African Constitution has heeded this call. In practical terms, this has meant that in criminal matters all people are entitled to legal representation; and in civil matters, a person must pass a low means-test based upon income in order to qualify for legal assistance.50 Since the case of S v Vermaas; S v Du Plessis, independent constitutional commissions and

statutory bodies51 have been established with a mandate of protecting the rule of law and ensuring the realisation of these rights.52 According to the country’s Former Minister of Justice and Constitutional Development, the Honourable Jeff Thamsanqa Radebe, over the past decade South Africa’s Legal Aid ‘has been revamped and moulded to one of the best legal aid systems in the world.’53 Dave Holness54 examines the current state of South African Legal Aid with a more critical eye. He argues that there continues to be a significant and tangible gap between the constitutionally guaranteed right to legal representation – in matters of civil justice – and the existing status quo in the contemporary South African legal system.55 Article 6 of the UK’s HRA does not explicitly provide for this ideal realisation of the right to legal representation, as framed by Melina Buckley. The provision only affords obligatory legal representation for an indigent accused in criminal cases. Even after the ECHR’s affirmative decision in the case of Steel & Morris v United Kingdom, the UK has not seen the need to enforce an absolute right to legal representation for civil cases. There are several reasons for this. Firstly, jurisprudence from the ECHR has not affirmed the proposition that in civil cases government funded legal assistance is an absolute and indispensable condition for the realisation of effective access to justice. Rather, the ECHR has asserted that the particular circumstances of each case must be considered in order to determine whether legal representation is required.56 Based on the circumstances in Steel & Morris v United Kingdom, the ECHR found there was a need for legal representation.57 In light of the ECHR’s finding in that case, the UK’s Secretary for Constitutional Affairs stated that ‘there was no need for any specific legislative amendment or remedial order to implement the judgment.’58 Under Australian jurisdiction, no enforceable right to legal representation existed prior to the High Court’s decision in Dietrich v The Queen. In this sense, the case was a successful outcome. However, when contrasting the outcome of the case against Melina Buckley’s high-watermark description of the right to legal representation, this decision falls significantly short. There was no consideration given to the right to legal representation in civil cases. In fact, the court neglected to go so far as to declare an absolute right to legal representation in criminal matters. All that the High Court was empowered to rule was that a court can permanently stay a proceeding in instances where a 58


criminally accused is unrepresented and this factor will lead to an unfair trial.

11.

CONCLUSION Applying Melinda Buckley’s notion of moving away from a case-by-case approach to the right to legal representation, the ideal objective of litigation is to obtain a systemic remedy that is applicable for any indigent citizen in either criminal or civil legal proceedings. The standard applied under South Africa’s Constitutional BOR and affirmed by the Constitutional Court in the case of S v Vermaas; S v Du Plessis comes closest to achieving this high-watermark vision of the right to legal representation, despite continuing gaps between powerful judicial affirmations and practical enforcement. The statutory BOR enacted in the UK, undoubtedly enlivens a right to legal representation too, however, even after the successful outcome in the EHRC in Steel & Morris v The United Kingdom, this right has not resulted in an absolute systemic remedy in the form that Buckley calls for. The outcome in the Australian case of Dietrich v The Queen gives rise to the weakest level of protection for the right to legal representation. Based upon this comparison of jurisdictional approaches, the piecemeal model of rights protection adopted by Australia, offers the least substantive and effective context for a successful protection of the right. It must be acknowledged that arguments continue to be made that there is a substantial gap between the constitutional guarantee of the right to legal representation and the practical execution of this right in the existing South African legal system. Nonetheless, the explicit Constitutional protection of the right to legal representation has led to the most substantive legal entitlement, when comparing these three legal systems. Thus, the general principle that emerges is that the greater the strength of the legal protection (with constitutional guarantees being the strongest, followed by statutory BORs and finally the piecemeal approach) the greater potential for the successful realisation of the right to legal representation.

36. Ibid pt 1 art 6(3)(c).

13. Robertson, above n 9, 48.

38. For further details about the proceedings see: 5RB Media & Entertainment Law, Full Case Report: Steel & Morris v United Kingdom <http://www.5rb.com/case/steel-morris-vunited-kingdom/>; McSpotlight, ‘Victory for McLibel 2 against UK Government’ (Press Release, 15 February 2005) <http:// www.mcspotlight.org/media/press/releases/msc150205.html>; BBC News, ‘McLibel Pair Win Legal Aid Case’ (15 February 2005) <http://news.bbc.co.uk/2/hi/uk_news/4266209.stm>.

15. George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) xxx. 16. These express rights include freedom of religion (s 116), free interstate Trade and Commerce (s 92), freedom from discrimination based on State of residency (s 117), a right to acquire property on just terms (s 51(xxxi)) and a right to trial by jury (s 80): Commonwealth of Australia Constitution Act 1900 (Imp). 17. Silery v The Queen (1981) 180 CLR 353, 361 (Murphy J). 18. The presence of implied rights was first ‘found’ in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 19. Nick O’Neill, Simon Rice & Roger Douglas, Retreat from Injustice: Human Rights Law in Australia (Federation Press, 2nd ed, 2004) ch 4 (‘Implied Constitutional Rights’). 20. Key Commonwealth rights related statutes include privacy law; laws regulating administrative power; employment law; and anti-discrimination law:George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013), 14.

REFERENCES Chantal Tanner* Juris Doctor candidate, UNSW 1.

Melina Buckley, ‘The Challenge of Litigating the Rights of Poor People: the Right to Legal Aid as a Test Case’ in Margot Young, Susan Boyd, Gwen Brodsky & Shelagh Day (eds), Poverty: Rights, Social Citizenship, and Legal Activism (UBC Press, 2007) 340.

2.

Powell v Alabama, 287 US 45, 68–9 (1932).

3.

Legal Aid Board, ‘Access to Justice in South Africa: A Combined Effort Required’ (Paper presented at Iilace 10th Anniversary Conference, Windhoek, 2–5 October 2008) 2.

4.

National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) xxxiv (Recommendation 18).

5.

Jonathon Pearlman, ‘Call for Rights Act Sparks Fierce Debate’, Sydney Morning Herald (online), 9 October 2009 <http://www. smh.com.au/national/call-for-rights-act-sparks-fierce-debate20091008-goz9.html>.

6.

Tom Ginsburg and Rosalind Dixon, ‘Introduction’ in Tom Ginsburg & Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011) 4.

7.

Stephen Gardbaum, ‘The Structure & Scope of Constitutional Rights’ in Tom Ginsburg & Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011) 163–4.

8.

George Williams, Sean Brennan and Andrew Lynch, Australian Constitutional Law & Theory (Federation Press, 6th ed, 2014) 1136.

9.

Geoffrey Robertson, The Statute of Liberty: How Australians Can Take Back their Rights (Vintage Books, 2009) 43.

35. Human Rights Act 1998 (UK), pt 1, art 6(1).

12. George Williams, Sean Brennan and Andrew Lynch, Australian Constitutional Law & Theory (Federation Press, 6th ed, 2014)1141. 14. Chief Justice RS French, ‘Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons’ (Paper presented at Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association, London, 5 July 2012) 1.

10. Ronald Dworkin, A Bill of Rights for Britain (Chatto & Windus, 1990) 13.

59

Robertson, above n 9, 48.

37. Steel & Morris v United Kingdom [2005] EMLR 314.

39. It was based on Article 6 Right of the European Convention on Human Rights (which is the basis for Article 6 of the HCA) 40. European Court of Human Rights Registrar, ‘Chamber Judgment: Steel and Morris v The United Kingdom’ (Press Release No 069, 15 February 2005). 41. 5RB Media & Entertainment Law, Full Case Report: Steel & Morris v United Kingdom <http://www.5rb.com/case/steel-morris-v-unitedkingdom/>. 42. O’Neill, Rice and Douglas, above n 19, 106. 43. Malone v Metropolitan Police Commissioner [1979] Ch 344, 372 (Megarry VC). 44. Coco v The Queen (1994) 179 CLR 427, 437. 45. Chief Justice David Malcolm, ‘Does Australia Need a Bill of Rights?’ (Speech delivered at the Amnesty International Como Group, 16 July 1998). 46. (1992) 177 CLR 292. 47. Ibid 309.

21. For further discussion of this opposition, see Robertson, above n 9, 7–12.

48. Paul Ames Fairall, ‘Trial Without Counsel: Dietrich v the Queen’ (1992) 4 Bond Law Review 235, 239.

22. Robertson, above n 9, 4.

49. Melina Buckley, ‘The Challenge of Litigating the Rights to Poor People: the Right to Legal Aid as Test Case’ in Margot Young, Susan Boyd, Gwen Brodsky & Shelagh Day (eds), Poverty, Rights, Social Citizenship & Legal Activism (UBC Press, 2007) 350.

23. Bernice Carrick, ‘Freedom on the Wallaby: A Comparison of Arguments in the Australian Bill of Rights Debate’ (2010) 1 Western Australian Jurist 68. 24. Constitution of the Republic of South Africa Act 1996 (South Africa) s 2. 25.

Ibid s 35(2)(c).

26. JL Huber, ‘Notes: Legal Representation for Indigent Criminal Defendants in South Africa: Possibilities Under the 1994 Constitution’ (1995) 5 Duke Journal of Comparative & International Law 425, 426. 27. This original version of the right to legal representation was located in s 25(3)(e) of the 1993 Interim Constitution, which uses the same words as the final constitutional document adopted in 1996. 28. [1995] 3 SA 292 (Constitutional Court). 29. S v Vermaas; S v Du Plessis CCT1/94, CCT2/94) [1995] ZACC 5, 15. 30. Note that the case was litigated in 1994 when the interim Constitution had been in place for one year. 31.

S v Vermaas; S v Du Plessis CCT1/94, CCT2/94) [1995] ZACC 5, 16.

32. Human Rights Act 1998 (UK). 33.

Chief Justice RS French AC, ‘Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons’ (Paper presented at Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association, London, 5 July 2012) 26.

34. Convention for the Protection of Human Rights & Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 6 (‘Right to a Fair Trial’).

50. SouthAfrica.info, Legal Aid & Advice (3 July 2014) <http://www. southafrica.info/services/rights/legalaid.htm#.U7Tu6jm9o4Y>. 51. Such as the South African Human Rights Commission and the Public Protector. 52. Honourable Jeff Thamsanqa Radebe, ‘Some Perspectives on the Rule of Law and Legal Aid: The South African Experience’ (Speech delivered at the occasion of the meeting with Ambassadors of the United Nations Member States, 19 July 2012) 1. 53. Ibid 5. 54. Director of the University of KwaZulu-Natal Law Centre. 55. Dave Holness, ‘Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa’ (2013) 16(1) Potchefstroom Electronic Law Journal 129. 56. The ECHR considers three factors: (1) the importance of what is at stake for the applicant; (2) the complexity of the case or the procedure, particularly when legal representation is mandatory by law; and (3) the capacity of the applicant to effectively exercise his or her right of access to court: Open Society Justice Initiative & Columbia Law School Public Interest Law Institute, European Court of Human Rights Jurisprudence on the Right to Legal Aid (December 2006) 13. 57. Ibid 15. 58. Joint Committee on Human Rights, Three Cases Reviewed by the Committee in this Parliament: Steel and Morris v UK, 13th Report, United Kingdom Parliament (8 March 2006) [28]–[29].

60


I. ‘EQUALITY BEFORE THE LAW’

‘Equality before the Law’: A Barrier to Access to Justice? By Lucia Noyce*

And now what of the special principle of so-called equality before the law? All it means is that the machinery of the law should make no distinctions which are not already made by the law to be applied. If the law grants political rights to men only, not women, to citizens only, not aliens, to members of a given race or religion only, not to members of other religions or races, then the principle of equality before the law is fully upheld if in concrete cases the judicial authorities decide that a woman, an alien, or the member or some particular religion or race, has no political rights. This principle has scarcely anything to do with equality any longer. It merely states that the law should be applied as is meant to be applied. It is the principle of legality or legitimacy which is by nature inherent in every legal order, regardless of whether this order is just or unjust.

- Hans Kelsen, Pure Theory of Law1

INTRODUCTION Fundamental to the existence of ‘access to justice’ is the idea that all individuals enjoy ‘equality before the law’. This concept has proven elusive to define, and difficult to achieve. Despite this reality it is nonetheless presented as an essential foundation of the administration of justice and as a necessary element for justice to be legitimate and to be seen to be so. There is ample evidence, however, that ‘equality before the law’ is not at play in our justice system. Discrimination endemic in society based upon gender and race in particular, can be seen as manifested at both the policing and judicial processes. This paper will approach the concept of ´equality before the law´ in the context of these manifestations of discrimination, specifically in the context of policing and the courts. 61

According to the Department of Foreign Affairs and Trade (DFAT), in Australia´s legal system ‘[a]ll people – Australians and non-Australians alike – are treated equally before the law, ’2 with ‘safeguards exist[ing] to ensure that people are not treated arbitrarily or unfairly by government or officials.’3 These two concepts identified– arbitrariness and unfairness – are antithetical qualities of any structure seeking to ensure ‘equality before the law’. Davison and Devins refer to this conception of ´equality before the law´ as the ‘anti-discrimination principle’. They note that ‘equality has often been characterized as the elimination of formal legal barriers of exclusion based on immutable characteristics such as race and gender.’4 In its Bench Book for judicial officers on ‘Equality before the Law’, the Judicial Commission of New South Wales instructs: Judicial officers must treat all parties fairly regardless of gender, ethnicity, disability, sexuality, age, religious affiliation, socio-economic background, size or nature of family, literacy level or any other such characteristic.5 It adds greater nuance by noting that ‘equality’ does not mean the ‘same treatment’, as the same treatment of those in differing situations of empowerment would itself be a form of indirect discrimination.6 This broaches on another conception of equality, that of the ‘sameness’ approach. This approach defines ‘equal before the law’ as an exercise of gender and race-neutral practices, which does not recognize the equitable function of the law.7 This approach, which could be seen to amount to formal equality, does not provide substantive equality: The ‘law is sexist’ [or racist] claim assumes that a corrective could be made to a biased vision and that this corrective suggests that a law suffers from a problem of perception which can be put right such that all legal subjects are treated equally.8 This argument is also illustrated by what some contend is the conceptual contradiction of ‘equality before the law’ if understood prima facie by the meaning of the words alone.9 As previously noted, applying the law exactly the same way in every case, despite comparative difference or disadvantage, could in fact have undesirable outcomes, leading to the contradictory situation noted by Kelson where there can be “equality before the law even if there is by no means equality in the law.”10 This

suggests that as a guarantee of justice and fairness, the concept of ‘equality before the law’ is of itself an insufficient protection. Conceptualizing ‘equality before the law’ also raises the question: equality by whose standards? There is a danger, due to traditional composition of law-makers and law enforcers, that the litmus test for equality before the law and other social institutions is that which would provide equality should society be a homogenised one composed of ‘the white male.’11 As Gould comments, ‘they [white males] have become the baseline against which they themselves measure all other groups, but more importantly they have become the baseline against which criminality has been constructed.’12 Conceptualizing equality consequently further requires a critique of the dominant cultural force behind lawmaking and how this has implications for those not a part of this dominant group– in particular, non-dominant gender and race groups.

Gender, race and policing This is particularly evident in the exercise of judicial discretion and policing discretion. As the first point of contact, with the justice system, and indeed if budgetary allowance is any indication, the more widespread point of contact13, the police in large part decide who is at the receiving end of the ‘long arm of the law’. This ´long arm´ may not reach all proportionally. For example, in a 2001 study of the policing of Indigenous Australians, Chris Cunneen identified a key causational factor of the existence of distrust between the police and many Indigenous Australian women, which was the curious combination of the over-policing of public order offenses and the under-policing of domestic violence offenses.14 This perception is supported by the findings of the Royal Commission into Aboriginal Deaths in Custody, which reported on the large-scale perception amongst Indigenous Australian women that the police were indifferent to acts of violence against them. This experience of the law has multiple troubling consequences. The Royal Commission found that, as a consequence of this perception, some Aboriginal women reported a reluctance to report crimes for fear of police violence.15 One woman in Cape York was quoted as saying, “If a white women gets bashed or raped here, the police do something. When it’s us they laugh.”16 Statistics support this perception of the high proportion 62


The concept of ‘equality before the law’ does not operate as an adequate safeguard for the equal treatment of either women, racial minorities or other marginalized groups in the justice system.

” of police interaction with Indigenous Australians. The Royal Commission found that on average, 50% of women in police custody at any given time were Indigenous, despite only comprising 2% of the overall female population.17 They were also 58% more likely to be held in custody than non-Indigenous women, whilst comparatively, Indigenous men were 28% more likely to be in held in custody than non-Indigenous men.18 The Royal Commission found that Indigenous Australians as a whole were found to be 27 times more likely to be detained than those of non-Indigenous background; 43 times more likely in Western Australia.19 Two-thirds of those detentions were for drunkenness and other public order offenses.20 The police act as the gatekeepers of the criminal justice system; as the findings of the Royal Commission demonstrate, the discretion to charge in terms of the type of crimes, and the persons to pursue unfortunately can lead to minority groups disproportionately being the subject of their purview. This power, however, does not exist in a vacuum. There is an obvious ‘direct line of institutional intervention’ that begins with the discretionary powers of the police at arrest and can be seen to continue through the court system itself.21

II. GENDER, RACE AND THE COURTS The overwhelming police focus on summary offenses can be seen furthermore in the court system. The majority of 63

interests of justice by providing quick and cheap processes, there are troubling considerations in relation to how this affects minorities. For example, the lower courts hear the the kinds of public order offenses which Aboriginal Australians are disproportionately detained for. The bail process demonstrates how this can work to the great disadvantage of marginalised groups. Bail hearings are concerned with applying a necessary amount of coercion in order to ensure the accused will appear for future proceedings. In NSW, under s 32 (1) (a) of The Bail Act 1978 (NSW), the police and Courts are required to consider a number of factors before making the rebuttable presumption in favour of bail. These include family and community ties, criminal history, residence and employment.27 Those who score badly in terms of such explicit legal criteria – who in short, are socially and economically marginal – are bad risks. . . Should we be surprised that it is Aborigines, unemployed, homeless, etc. who are disproportionately incarcerated prior to trial?28

criminal adjudication in Australia takes place in the Lower Courts, comprising 97.5 per cent of criminal cases heard between 2008-2009, with similar statistics for 2010.22 Jury trials occur in only approximately 1% of criminal cases.23 Therefore, they do not ‘adjudicate guilt or innocence’ but rather make ‘procedural decisions that are not final in nature.’24 This means that ‘the legal standards which are to apply can afford to be much less strict and demanding.’25 This dichotomy is referred to by McBarnet as the ‘two-tiers of justice’: The law has created two tiers of justice, one which is geared in its ideology and generality at least to the structures of legality, and one which, quite simply and explicitly, is not. The principles of one strand have remained as the dominant image of the law and as the rhetoric of justice, but the existence of the other allows the legal system to deal with the vast majority of offenders in a way which flouts the principles of justice legally.26 While the streamlining of the process of summary offences can be seen at the macro level to serve the

This process further entrenches the disenfranchisement of such groups, by placing more strict conditions on those individuals who do not accord with the perceived hallmarks of civic responsibility. Strict bail conditions make it more difficult to obtain employment, which has trickle on affects for the ability to secure residence and maintain relationships. It ignores the demographical nature of the crimes themselves, and furthermore demonstrates how the criminal justice system contributes to the effects of institutionalisation in trapping such individuals in a cycle of crime and imprisonment.

III. CONCLUSION The resulting question that remains to be answered is how to reconcile the conceptual inconsistencies of ‘equality before the law’ itself with the inconsistencies evident in its practical exercise. It would be overly pithy to conclude that the dialectic between the two is simply a self-fulfilling prophecy doomed to fail. Ultimately, efforts to achieve a non-discriminatory justice system are not purely conceptual in nature. What is evident, however, is that the concept of ‘equality before the law’ does not operate as an adequate safeguard for the equal treatment of either women, racial minorities or other marginalized groups in the justice system. This in turn manifests as a barrier to fair and equal access to justice for certain members of our society. 64


REFERENCES Lucia Noyce* Juris Doctor candidate, UNSW 1.

Hans Kelsen, Pure Theory of Law (Lawbook Exchange, 1967), quoted in Alfonso Ruiz Miguel, ‘Equality before the Law and Precedent’, (1997) 10(4) Ratio Juris 372.

2.

Department of Foreign Affairs and Trade, About Australia: Legal System (2012) <http://www.dfat.gov.au/facts/legal_system.html>.

3.

Ibid.

4.

Davison M Douglas and Neal Devins, ‘Introduction’ in Neal Devins and Davison M Douglas (eds), Redefining Equality (Oxford University Press, 1998) 4.

5.

Judicial Commission of New South Wales, Equality Before the Law Benchbook 1103 [1.1].

6.

Ibid; see also Bob Hepple, Equality: The New Legal Framework (Hart, 2011).

7.

Amanda Burgess-Proctor, ‘Intersections of Race, Class, Gender and Crime: Future Directions for Feminist Criminology’ (2006) 1 Feminist Criminology 1, 27.

8.

K Daly, ‘Criminal Law and Justice System Practices as Racist, White and Racialized’ (1994) 51 Washington and Lee Law Review 431, 439.

9.

Miguel, above n 1, 372.

10. Kelsen, above n 1. 11.

Catherine A MacKinnon, ‘Reflection on Sex Equality under Law’ (1991) 100 Yale Law Journal 1281, 1289.

12. Larry Gould, ‘Privilege and the Construction of Crime’ in Criminology and Criminal Justice Collective of Northern Arizona University (eds), Investigating Difference: Human and Cultural Relations in Criminal Justice (Prentice Hall, 2009) 24. 13. R Hogg, ‘Policing and Penalty’ in Kerry Carrington and Barry Morris (ed), Politics, Prisons and Punishment – Royal Commissions and ‘Reforms’ [1991] Journal for Social Justice Studies 21. 14. Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Allen & Unwin, 2001). 15. Ibid 161. 16. Ibid. 17. Ibid 165; see also Hogg, above n 13. 18. Ibid. 19. Hogg, above n 13, 3. 20. Ibid. 21. Hogg, above n 13, 16. 22. David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 5th ed, 2012) 143. 23. Hogg, above n 13, 8. 24. Ibid 10. 25. Ibid. 26. Doreen J McBarnet, Conviction: Law, the State, and the Construction of Justice (Humanities Press, 1981), quoted in Brown et al, above n 23, 154.See also Doreen J McBarnet, ‘Magistrates’ Courts and the Ideology of Justice’ (1981) 8 British Journal of Law and Society 181. 27. Bail Act 1978 (NSW) s 32 (1)(a). 28. Hogg, above n 13, 7.

65

Voiceless Animals and Their Activists: Barriers Experienced in Their Attempts to Access Justice Yenee Saw*

The Oxford Dictionary defines the word ‘gag’ to mean ‘a piece of cloth put in or over a person’s mouth to prevent them from speaking’.1 This literal meaning of the word ‘gag’ can be applied to describe the recent proposals from state Parliaments in Australia. In South Australia, the Surveillance Devices Bill 2014 (SA) was introduced in early June,2 much to the consternation of animal rights groups who fear that they will be ‘gagged’ or rather, prevented from speaking up for animals because under this Bill, it will be illegal to publish footage obtained from factory farms.

advocates strive to provide a voice for animals who cannot speak for themselves but proposed legislative action from state parliaments will ‘gag’ them and prevent them from being able to do so. South Australia has taken practical steps to implement ‘ag-gag’ laws and other states in Australia may soon follow suit.5 This article intends to illustrate how animal rights advocates – and of course, factory farmed animals themselves – will experience a barrier in their attempts to access justice if ‘ag-gag’ laws, punishing people who expose animal cruelty, are passed.

Upon closer examination of the Surveillance Devices Bill, it becomes apparent that it falls under the category of ‘ag-gag’ laws because certain provisions of this Bill aim to ‘gag’ animal rights advocates by restricting their freedom to expose the morally reprehensible and often horrific nature of agricultural farming practices. Under sections 4 and 5 of the proposed Surveillance Devices Bill,3 the installation of audio and visual taping devices is prohibited which makes it a crime for animal rights activists to record what actually goes on in factory farms. However, section 8 of the Bill goes further by stipulating that any material recorded illegally will be prohibited from being used or published.4 It can be seen that ‘aggag’ laws such as the Surveillance Devices Bill, seek to silence animal rights activists because their attempts to expose animal cruelty in the agricultural industry will be criminalised. Consequently, this means that animal rights campaigners will be ‘gagged’ because they are effectively prevented from speaking out for animals. Animal rights

Animals are literally voiceless in the sense that they cannot speak for themselves. This is where animal rights activists come in: they provide a voice for animals and speak up for them by defending their rights. In Australia’s legal system, animals are not given a voice because they are considered property, their status being equivalent to that of inanimate objects and therefore they are given no legal standing.6 Under Australian law, animals only have proprietary status and are not regarded as sentient beings which lead some to justify the mistreatment of animals in factory farms.7 Without a voice in Australia’s legal system, animals cannot access justice for the harm they experience and this is why animal rights advocates are so important: they provide a voice for animals who cannot speak. It is only through the footage obtained by animal rights activists that the mistreatment of animals comes to light which leads to change. Yet, ‘ag-gag’ laws have hefty penalties assigned to those that expose what happens in factory farms. 66


“so fervently committed to animal

rights organisation Mercy for Animals recorded workers hitting, kicking and sexually abusing the cows whilst working undercover at Bettencourt Dairy in Idaho in the United States. The release of this footage on to the internet resulted in large corporations such as Wendy’s and Burger King Worldwide pledging that they would no longer use products produced by Bettencourt Dairy.9 This action also resulted in numerous other companies boycotting to reassure the public that they did not condone the physical and sexual abuse of cows. As a result, Bettencourt Dairy suffered a significant loss in profits.10 Following this, half a dozen states within the United States responded by adopting ‘ag-gag’ laws in order to safeguard the profits of factory farms.11 Moreover, criminalising whistle blowing in the interests of enabling factory farmers to retain their profits erodes transparency.

welfare, activists are unlikely to be

deterred by ‘ag-gag’ laws and will likely risk prosecution to continue exposing animal cruelty

” In South Australia’s Surveillance Devices Bill, sections 5(1) and 8(1) both stipulate a maximum penalty of $15 000 or 3 years imprisonment in the case of a natural person who publishes material covertly obtained from factory farms.8 It is evident that the work of activists must be clandestine in order to effectively capture the reality of the situation within the slaughterhouses of factory farms. The legislative approach of South Australia could be described as ‘shooting the messenger’ because the issue of animal abuse and mistreatment in factory farming is not actually dealt with. Rather, animal rights activists who expose the nature of factory farming practices are the ones being punished. However, shouldn’t animal cruelty be criminalised instead of whistle blowing? Moreover, prosecuting animal rights campaigners who expose mistreatment is a flawed approach: so fervently committed to animal welfare, activists are unlikely to be deterred by ‘ag-gag’ laws and will likely risk prosecution to continue exposing animal cruelty. In addition, ‘ag-gag’ laws seem to prioritise the interests of commercial factory farms and as a result, they have been described as ‘corporate-backed’. The recording of animal mistreatment in factory farms is criminalised because ‘ag-gag’ laws seek to keep consumers unaware of how their food is produced because if people knew, there would be a possibility that consumers would boycott products which would lead to a loss in profit. This was illustrated when a member of the non-profit animal 67

‘Ag-gag’ laws stifle the voices of animal rights campaigners and so their capacity to engage in public debate is restricted. Michael Kirby, Former Justice of the High Court, espoused this idea in his judgment: Parliamentary democracies, such as Australia, operate effectively when they are stimulated by debate promoted by community groups. To be successful, such debate often requires media attention. Improvements in the condition of circus animals, in the transport of live sheep for export and in the condition of battery hens followed such community debate … vegetarian groups are entitled, in our representative democracy, to promote their causes, enlisting media coverage.12 Kirby’s commentary substantiates the notion that these ‘ag-gag’ laws pose a threat to democracy because freedom of speech is quashed. Moreover, Kirby raises the important issue of how positive changes flow from the whistleblowing of animal rights activists. Hence, it is counterintuitive that ‘ag-gag’ laws prevent people from exposing animal mistreatment in factory farms because

such exposure would probably lead to constructive and progressive change in the way that animals are treated. However, Federal Agriculture Minister Barnaby Joyce, alongside NSW Primary Industries Minister Katrina Hodgkinson, both maintain that these proposed laws seek to actually protect the welfare of livestock rather than ensuring the silence of animal rights activists. It has been argued that these laws safeguard the welfare of animals by preventing trespass from animal rights campaigners because chickens are easily scared by strangers and may pile up into a corner, crushing other chickens to death.13 However, this statement is unlikely to hold much weight in reality as research suggests chickens are often contained in extremely cramped conditions where there is no space and rather than be crushed to death, they are more likely to suffocate.14 Attempts to justify ‘ag-gag’ laws by claiming that they will ensure the protection of farmed animals can be described as sophistry: the reasoning seems legitimate and in the interests of the animal’s welfare, but ultimately after careful research, it can be found that this reasoning is indeed erroneous. Proposed ‘aggag’ laws operate under the guise of safeguarding the welfare of animals, however it appears instead that these laws effectively criminalise the exposure of animal mistreatment and cruelty.

Image by Pouya Afshar

REFERENCES Yenée Saw* Combined Law Candidate, UNSW 1.

Oxford Dictionaries, Oxford University Press <http://www. oxforddictionaries.com/definition/english/gag>.

2.

Surveillance Devices Bill 2014 (SA) (‘Surveillance Devices Bill’).

3.

Ibid ss 4, 5.

4.

Ibid s 8.

5.

Jeremy Story Carter, ‘Farmers Push for ‘Ag-Gag’ Laws’, ABC Rural (online), 18 June 2014 <http://www.abc.net.au/news/2014-0618/farmer-support-for-ag-gag-laws/5532122>; Nicole Hasham, ‘Animal Cruelty Activists Targeted by Tough New Biosecurity Measures’, Sydney Morning Herald (online), 15 June 2014 <http:// www.smh.com.au/environment/animals/animal-cruelty-activiststargeted-by-tough-new-biosecurity-measures-20140615-zs8jt. html#ixzz39mUDzXMU>.

6.

LexisNexis, Halsbury’s Laws of Australia (at 2 June 2014) 20 Animals, ‘1 Property in Animals’ [20]–[50]; Saltoon v Lake [1978] 1 NSWLR 52.

7.

Elizabeth Ellis, ‘Our Relationship With Animals’ (2010) 74 Hot Topics 1, 4.

8.

Surveillance Devices Bill 2014 (SA) ss 5(1), 8(1).

9.

The Associated Press, ‘Idaho Workers Charged with Animal Cruelty at Bettencourt Dairies’ Dry Creek Dairy’, New York Daily News (online), 11 October 2012 <http://www.nydailynews.com/ news/national/watch-animal-cruelty-filmed-idaho-dairy-article1.1180094#WQ63F7r6k3Ui4Dcl.97>.

CONCLUSION If such ‘ag-gag’ laws are implemented in South Australia, access to justice will be denied. Not only are animal rights activists denied justice because their ability to speak up is limited but animals themselves are also denied justice, the voice of those who traditionally protected animal rights will be ‘gagged’. Therefore, it is imperative that the ‘ag-gag’ laws be repealed so that animal rights campaigners have the freedom, without fear of prosecution, to reveal and publicise the injustices faced by factory-farmed animals, in order to protect their access to justice.

10. Ibid. 11.

Will Potter, ‘Australia Risks Copying US ‘Ag-Gag’ Laws to Turn Animal Activists into Terrorists’, Sydney Morning Herald (online), 1 May 2014 <http://www.smh.com.au/environment/animals/ australia-risks-copying-us-aggag-laws-to-turn-animal-activists-intoterrorists-20140501-37k8i.html>.

12. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 218. 13. Jeremy Story Carter, ‘Farmers Push for ‘Ag-Gag’ Laws’, ABC Rural (online), 18 June 2014 <http://www.abc.net.au/news/2014-06-18/ farmer-support-for-ag-gag-laws/5532122>. 14. Neville G Gregory, Animal Welfare & Meat Production (CAB International, 2007).

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Last Judgement by Viktor Vasnetsov

The Criminal Trial: Where Law Meets Justice? Marco Olea*

“Qui si convien lasciare ogni sospetto, ogni vilta convien che qui sia morta” [Here must all distrust be left, all cowardice must here be dead]. -Inscription at the entrance to hell, Dante Alighieri’s Divine Comedy.

What is justice? In the same way that introductory quotations may be deemed as cliché and uncreative, beginning a paper with a question is often indicative of an attempt to reframe a topic in a manner to suit one’s own tangential purpose. In the circumstances before us, however, I think that this approach is rather apt – or rather, somewhat necessary. From the first day of law school, we are taught of the form of the law in our society, and how we, as future lawyers, should pursue our endeavours without ever losing sight of its interaction with justice. Indeed, adorning the walls of this law building, and scrawled onto several desks, is the grand proclamation of our faculty: “We Are Where Law Meets Justice”. Yet, apart from the daunting compulsory theoretical courses we must take on the issue, it seems that these precepts are held to be unquestionably axiomatic. Is what we actually do, or what we claim to be doing, itself congruent with such lofty ideals? This article will confront the assumptions that underlie much of what we preach and furthermore demonstrate, through an examination of the criminal trial, how the nexus between the formal law and substantive justice provides a rather opaque arena, of contested meaning and appropriated experience. However, before we can truly understand the implications of the form and function of the modern trial, 69

we must first step back and briefly look at the historical roots of our current method.

I. TEMPORA MUNTANTUR, NOS ET MUTAMUR IN ILLIS [The times are changed, and we too are changed in them] The emergence of the judicial logic paralleling that which we today hold can perhaps be observed in 17th Century English procedure. In the centuries prior, the English criminal trial derived its substantive principles through the evocation of ecclesiastical doctrine. Consequently, the role of the parties and procedures employed were conceptualised in a manner consistent with these religious rubrics, with little attention given to evidence or witness testimony.1 Insofar the outcome of such proceedings was deemed as just, or the form of the proceeding itself as legitimate, ultimate justification was provided with reference to divine portent.2 It was only with the ushering in of the age of enlightenment that a departure from these ecclesiastical bases was possible and, from a sociolegal perspective, the form and substance of modern criminal law could truly gestate.

II. LEGES HUMANAE NASCUNTAR, VIVUNT, ET MORIUNTUR [Laws of man are born, live, and die] At the crux of this transformation was the refinement of the adversarial trial and the bases upon which the adopted procedures were legitimated. Although the initial differences in ecclesiastical and secular trials should not be overstated,3 there was a distinctly new emphasis placed on according greater recognition to the individuals directly affected by the process.4 Consequently, in order to arrive at an outcome acceptable in the eyes of those whom the criminal law supervises, the adversarial system developed mechanisms and structures to implement the principles of this new ‘enlightened’ method. For instance, whereas the right to defence counsel in 16th Century England was restricted to certain types of offences,5 a statutory delineation of counsel roles and responsibilities was consolidated in the early 1800s.6 In terms of the substantive bases from which these reforms were premised, the adoption of rational procedure in the search for the truth, as opposed to the outcome itself, constituted the teleological drive.7 70


“...a balancing act is inherent in any analysis of a ‘just’ outcome, a process that involves the weighing of fair procedure with the social recognition of criminality This post-enlightenment reliance on substantive rationality further transformed the logic through which the manner and form of the trial was justified – the truth, quite apart from being the incontestable display of God’s will, was, practically speaking, the ideal end toward which a properly structured criminal trial strived.8

III. VERITAS NUMQUAM PERIT [Truth never perishes] In terms of the purposes of the criminal trial, to what extent does the modern process maintain a focus on the ascertainment of the truth? Rather than the trial adopting a form congruent with this purpose, we have before us a system of rules and structures designed to maintain a degree of fairness to be accorded to the accused. The trial is no longer about truth per se,9 but rather something of a political framework within which the rights of the accused are protected against the interests of the state. Consequently, the question before the trier of fact is not to be understood with reference to the overarching truth of the contestation, but whether the prosecution has adequately discharged their legal burden of proof.10 Although the ideals underlying contemporary jurisprudence – ˚such as the golden thread, and the concepts within which they are embodied (e.g. Blackstone’s ratio) – provide a theoretical basis for legitimation of legal form, their incorporation into procedure, via means such as a requisite legal threshold,11 signifies the disjunction between their purportedly self-evident nature and the method for their practical enactment. Thus, a balancing act is inherent in any analysis of a ‘just’ outcome, a process that involves the weighing of fair procedure with the social recognition of criminality. 71

However, whilst these societal demands may be examined in terms of the starting point of our inquiry (i.e. those behaviours to which we label ‘criminal’), they further extend to the expected outcome of the criminal trial.12 Where the outcome of the trial is not congruent with these expectations, allegations of ‘injustice’ will oft be levied against those involved in its determination – an injustice with a meaning quite distinct from its legal counterpart. Whereas the legal recognition of a ‘miscarriage’ of justice is derived with reference to rules and analyses that are, in turn, derived from the normative principles of contemporary criminal law,13 the legitimacy that society ascribes to the outcome of a criminal trial is defined primarily in terms of their culturally, as opposed to epistomologically, determined beliefs and prejudices.14 Consequently, public considerations of purpose (that is, that the criminal law exists to punish criminal wrongdoers) may serve to undermine the legal conceptualisations thereof.15 This, in turn, has the potential to threaten the theoretical foundations upon which the legal institution relies so heavily for its claim to legitimacy. Quite apart from existing in an apolitical, secular, and purely legal social vacuum, the modern criminal trial operates within a society of individuals who make demands of the law. Demands based not on understandings of legal principle or precedent, but their own idiosyncratic experiences of the world, which, consequently, influences the form of the trial independently of what any substantive notions of ‘justice’ may require.16 Whilst the sporting character of the adversarial trial had been present since the early days of William Garrow,17 the modern criminal trial has been transformed into a theatrical performance, with the script, cast, and plot all understood primarily with reference to culturally determined understandings.18

” IV. DEUS EX MACHINA [God from the machine] This theatrical character leads to the further transformation of the individuals involved in the proceedings, which holds significant implications for their existence as individuals and, in the case of the victim and the accused, the importance attached to their experiences. First of all, if adopting this dramaturgical analysis, the performance itself requires the characters to adopt a requisite form with corresponding roles and responsibilities. We have the prosecutor, a figure symbolically representative of the state, whose conduct requires a temperament and dispassion consistent with the role of a model litigant.19 Representing the accused is the defence, whose role is also governed by a script set forth by the law.20 So crucial is this actor that the State aids in their provision in some instances where an accused is otherwise unable to enlist one.21 However, it is the status ascribed to the witnesses and victims of the proceedings that I find most disconcerting – as potentially otherwise unwilling participants in the proceedings, the law often makes demands of them for the purpose of maintaining the construction of legal narrative. True, certain structural safeguards exist in order to protect those who may be vulnerable,22 but is this itself not a tacit assertion that the legal outcome exists in a stratum beyond the existential experiences of

the individuals involved?23 Experiences that derive their meaning not from the normative epistemic principles that shape the law, but the cultural norms and narratives that influence the manner in which meaning is extracted from the trial?24 It is the complexity of this trial process, a complexity predicated on the implementation of juridical principles, that may serve to compromise the public’s faith in the very same principles.25 Further, it serves to highlight the additional tension between a ‘just’ outcome as perceived by the public, and a ‘just’ outcome as determined by the law – a tension that is derived from the cultural/ epistemic distinction discussed previously. Indeed, it was during one of my court observations that I found myself at the edge of this disjunction. On the screen before the court was a 16 year old girl who was allegedly sexually assaulted by the accused.26 Mr Defence, careful not to overstep the boundaries stipulated by the law,27 began his cross-examination. Question after question, he lodged a carefully designed attack to undermine the credibility of the victim’s testimony. Question after question, the effect of such inquisition began to take a physically observable toll on the victim. Finally, she had enough. She walked off screen, and refused to continue. We were later informed that due to concerns for the complainant’s well-being, the ODPP decided not to continue with the prosecution. The accused was acquitted.

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V. ACTA EST FABULA, PLAUDIT! [The play is over, applaud!] On the one hand, the legally informed part of me accepted the outcome. The case was before the court, the parties performed their roles, and the conduct of Mr Defence, however vulgar it may be otherwise be perceived, was entirely consistent with the rules of the game. He performed his duties to his client with the diligence and fearlessness required by his role.28 On the other hand, the layperson in me was furious with such an outcome. How could such an absurd situation be allowed to pass? What kind of system would allow such despicable conduct against a vulnerable complainant who had already suffered so much? It this not an example of manifest injustice? Insofar as the procedures of the trial are followed, no. Personal biases and socially informed prejudices are not, and must not be, the foundations upon which we justify the operation of the criminal law. Whilst they may be the bases from which the layperson derives meaning from the trial, the theoretical legitimation of the process is, and must be, based on the epistemic principles from which the law itself is borne. Consistency in the law – an ideal central to the emphasised fairness characteristic of our modern trial29 – requires the outcome be assessed against the rationality inherent in substantive norms and not of the idiosyncratic nature of individual opinion.30 What, then, do we make of that final link that mediates the implementation of legal theory to the final outcome – the jury? How can we be certain that the verdict that emerges from their deliberations is a reflection of legal principle and not merely a product of 12 culturally determined opinions? Ultimately, we cannot. The entirety of the criminal trial by jury is built upon the core assumption that jurors are true to their oaths and will follow the directions of the judge.31 In the words of Lord Mansfeld, although “it is 73

the duty of the judge…to tell the jury to do right… [the jury] have it in their power to do wrong”.32 Although additional mechanisms exist through which the legal system supervises the implementation of principle into practice,33 one key implication is glaring: the efficacy of our supervisory theory is limited. Whilst the principles of criminal law serve to justify and legitimate the procedural elements and substantive content of the criminal trial, their realisation is entirely dependent not on the computational calculations of legal homunculi, but on the very same humans whom the law purports to represent and protect. In the same manner that previous societies derived legitimacy of legal outcome with reference to religious faith, the integrity of the modern criminal trial rests upon the secular faith we place in the ultimate triers of fact.

lose its focus on the individuals constitutive of that society – the very same individuals the law relies upon for the realisation of its ideals. There is manifest tension here, the significance of which, I must admit, I do not know. All I can do, perhaps all that any advocate of ‘justice’ can do, is to continue in our works with the proud commitment of a common lawyer. While it takes effort to critically analyse the theoretical flaws of a legal system, it takes Dante’s courage to acknowledge these flaws, and nevertheless pursue the ideals that the system represents.

13. For example, where flaws in the trial process are of such a character to offend the fairness accorded to the accused, the courts are empowered to direct a more acceptable course of action. See, eg, Criminal Appeals Act 1912 (NSW) s 6. 14. Nunn, above n 12, 745. 15. Craig Bradley and Joseph Hoffman, ‘Public Perception, Justice, and the ‘Search for Truth’ in Criminal Cases’ (1996) 69 Southern California Law Review 1267, 1271. 16. Nunn, above n 12, 796. 17. Beattie, above n 6, 248.

REFERENCES Marco Olea* Juris Doctor Candidate, UNSW 1.

Such procedures relied primarily on each of the parties giving a verbal account of their claims, with a religious minister adjudicating. See generally Jill Hunter and Kathryn Cronin, Evidence, Advocacy, and Ethical Practice: A Criminal Trial Commentary (Butterworths, 1995).

VI. CESSANTE RATIONE LEGIS, CESSAT IPSA LEX

2.

Ibid.

3.

Ibid.

[When the reason for the law ceases, the law itself ceases]

4.

For example, the Prisoner’s Counsel Act 1836 represented the statutory recognition of the prisoner’s right to defence counsel.

5.

For example, treason.

6.

See generally John M Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9 Law and History Review 2, 221.

What is justice? Lest this article end on a pessimistic note, allow me to confess that that is by no means my intention to be so, nor should the above be read in such a light. We have seen how the form of the trial, its substantive content, and the meaning to which society ascribes, is inextricably contingent upon the socio-historical context in which it takes place. So too are the normative epistemic principles from which law itself derives legitimacy. In terms of contemporary society, there exists a distinct incongruence between the two. On the one hand, the law seeks to impose a framework constructed from rationalised legal doctrine. On the other, those whom the law purports to protect and represent share an understanding derived from dramatically different bases – those of their individual, culturally influenced, and, ultimately, human experiences. Where such conflicts manifest in practice, society may lose faith in the integrity of the institutions and, conversely, the criminal law may

12. Kenneth Nunn, ‘The Trial as Text: Allegory, Myth, and Symbol in the Adversarial Criminal Process – A Critique of the Role of the Public Defender and a Proposal for Reform’ (1995) 32 American Criminal Law Review 743, 745.

18. Nunn, above n 12, 745. I speak here primarily of jury trials, although summary hearings could also be viewed in a similar manner. 19. See New South Wales Barristers’ Rules 2014 (NSW) rr 82–94. 20. New South Wales Barristers’ Rules 2014 (NSW). 21. Such as public defenders. 22. For example, Part 5 of the Criminal Procedure Act 1986 (NSW) deals with the use of evidence in certain sexual offence proceedings. 23. I concede, however, that certain provisions, such as section 138 of the Evidence Act 1995 (NSW), acknowledge that ‘[the] truth, like all good things, may be loved unwisely – may be pursued too keenly – may cost too much’: Pearse v Pearse (1846) 63 ER 950, 957. 24. Nunn, above n 12, 745. 25. Bradley and Hoffman, above n 15, 1279.

7.

For a discussion of the historical shift in legal form and alternate theoretical perspectives, see Patricia O’Brien, ‘Crime and Punishment as Historical Problem’ (1978) 11 Journal of Social History 4, 508.

8.

Mirja Damaska, ‘Truth in Adjudication’ (1998) 49 Hastings Law Journal 289, 294.

27. For example, section 41 of the Evidence Act 1995 (NSW) governs the exclusion of improper questioning.

9.

Thomas Weigand, ‘Is the Criminal Process About Truth? A German Perspective’ (2003) 26 Harvard Law Journal of Law and Public Policy 157, 169.

29. See generally Henry Hart Jr, ‘The Aims of the Criminal Law’ (1958) 23 Law and Contemporary Problems 3, 401.

10. For a discussion as to the status of ‘truth ascertainment’ as against other purposes, see generally Daniel Givelber, ‘Meaningless Acquittals: Do We Reliably Acquit the Innocent?’ (1997) 49 Rutgers Law Review 1317. 11.

That is, the ‘beyond reasonable doubt’ standard. This standard has been described as seeking ‘to come as close to certainty as human knowledge allows’: Laurence Tribe, ‘An Ounce of Detention: Preventive Justice in the World of John Mitchell’ (1970) 56 Virginia Law Review 371, 387.

26. In cases involving the sexual assault of minors, arrangements are made for them to be in a room separate from the accused. See Criminal Procedure Act 1986 (NSW) pt 6 div 4.

28. See New South Wales Barristers’ Rules 2014 (NSW) r 37.

30. Weigand, above n 9, 173. 31. Gilbert v The Queen (2000) 201 CLR 414, 425. 32. R v Shipley (1784) 4 Dougl 73, 99 ER 774, 824. 33. For example, certain trials can be elected to be heard by Judge alone.

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Back cover image by Rob Young


Profile for UNSW Law Society

Court of Conscience - Issue 8, 2014  

Court of Conscience - Issue 8, 2014