Equity or Fairness in the Australian Legal System - Essay Example

EQUITY OR FAIRNESS IN THE AUSTRALIAN LEGAL SYSTEM 1. INTRODUCTION Australia is one of the most developed nations in the world. It has a vibrant and rapidly growing economy, with vast natural resources. However, it has a legal system that is replete with lacunae. Albeit, Australia is a signatory to several international human rights treaties, there is marked reluctance to implement their obligations and to engender fair and equitable justice. Access to justice, and equality before the law, are the basic requirements of the right to a fair hearing. These principles have been accorded recognition across the world. Australia’s legal system is no exception to this international practice, and as a consequence, it has to recognise and adopt these principles. Despite the fact that the principles of access to justice and equality before the law do not have much influence on the decision – making process of courts, they constitute effective tools for ensuring legal aid and the unbiased application of the law1. 2. JUSTICE AND ACCESS On account of social inequalities, certain groups of people are deprived of access to specialised education and highly remunerative employment. As such, the measure of any legal system is determined by equal access for all to the legal system. Therefore, each and every person should be provided with the opportunity to resolve their disputes through the legal system. In addition, the legal system has to ensure that all members of society have the same opportunity to defend themselves against criminal charges. Furthermore, everyone should have the same prospect, in the context of the protection offered by the legal system. Accessing the Australian legal system is an expensive proposition; and consequently, it is not possible for everyone to access it2. The legal system should be fair in all respects; and it should avoid policies that prevent the people from accessing it. Fairness corresponds to equity, and can be presumed to entail other requirements, like honesty and integrity. Perhaps the most important aspect of procuring justice is to access the legal system. It is contingent upon awareness of the law, and the competence to procure pertinent information. In addition, there should be adequate access to legal representation or legal aid. Moreover, this process could be seriously compromised on account of delay in the proceedings of the court3. A major drawback with the Australian legal system lies in the fact that legal aid is provided selectively. In order to procure legal aid, it is essential to qualify in a merit cum means test and a jurisdictional test. This could lead to a serious travesty of justice. A fair trial is possible, only if the judiciary is independent of the legislative and executive, in addition to consisting of efficient federal and state courts. In most of the Australian states, impoverished defendants have to pass a means and merit test, if they are to be provided with legal aid. The ostensible reason for this test is to curtail government expenditure, in instances where the outcome would apparently be unfavourable to the defendant. However, there is no such restriction, in respect of Aborigines and Torre Island defendants4. This is an inequitable practice, because conclusions regarding the defendant’s guilt are drawn, prior to the trial; which could influence the subsequent judicial process. Moreover, legal aid is provided, without any preconditions to some sections of the populace, thereby discriminating against the rest of the population. A. Legal Assistance and Legal Aid Without access to legal services, justice cannot be rendered. Therefore, Legal Aid, which is a government, sponsored system that provides legal services to the needy, assumes great significance. These services were initiated by the Commonwealth Government in the year 1973, with the institution of the Australian Legal Aid Office. Subsequently, State Legal Aid Commissions were established, and the Australian Legal Aid Office was disbanded5. Legal aid constitutes an important facet of the right to a fair trial, and private lawyers have been representing the indigent, in countries like the UK and New Zealand. In nations, such as the Netherlands, this task was undertaken by private as well as public legal practitioners. Subsequently, many private legal practitioners, in the 1980s and 1990s, expressed their intention to discontinue this practice. It was their contention that such legal aid was time consuming and non – remunerative6. With the departure of experienced legal practitioners from legal aid, the task has been undertaken by new and inexperienced entrants to the legal profession. Australia follows a mixed model, with regard to legal aid. In other words, the participants in legal aid are private as well as public legal practitioners. The allocation of funds is shared by the federal, state and territory governments. The principal participants in legal aid are the state and territory legal aid commissions, with the Australian Government adopting a low profile7. The general trend among the private legal practitioners of the countries that provide legal aid is to withdraw from such activity. Australia has proved to be no exception to this phenomenon. By the year 1995, it was firmly established in the psyche of the Australian private legal practitioners that legal aid was unrewarding. Consequently, only a few of the legally aided clients continued to be represented by private legal practitioners. This was attributed to the reduction in fees, by the authorities8. This situation has been aggravated by the adoption of extremely stringent legal aid qualifying requirements; and an overall reduction in the funds allocated for legal aid9. The outcome of these developments has been a drastic reduction in the number of persons receiving legal aid. Persons involved in litigation and who are indigent are benefited to a great extent by Legal Aid. However, the paucity of funds available with it, severely restrict the number of people that it can assist. In addition, applicants to its munificence have to overcome a number of obstacles to acquire eligibility. Elimination of excess applicants for legal aid is chiefly achieved by the measures described below. 1. Means Test In order to clear the means test, applicants have to establish that they do not have the means to defray the expenses to be incurred in private legal action. In general, qualifying in the means test requires the client to be in receipt of Centrelink benefits and the possession of assets that are less than a specific value. If the applicant is not a beneficiary under Centrelink, then factors, such as; the applicant’s income, number of dependants and value of assets are taken into consideration for providing legal aid. Furthermore, in several instances, those provided with legal aid, were required to make payment of part of the legal costs incurred. However, this payment was in proportion to their financial status. In addition, Legal Aid could subject the applicant’s property to a statutory charge, so as to retrieve legal costs10. This test is inequitable and deprives many Australian citizens of legal representation, merely on the grounds that they have adequate means to defray the legal expenses involved, from their own resources. 2. Merit Test The merit test evaluates, whether the claimant has defence that is reasonably arguable. In other words, the claimant’s anticipation of success should be realisable. This is highly prejudicial and is tantamount to arriving at a decision, without a trial. Moreover, such aid is denied in matter, such as divorce, property disputes, traffic offences, wills, and complaints against the police and lawyers. It is also denied in cases, where the defendant’s lawyer provides services on a no win no fees basis. In several cases, justice was derailed, because of the absence of legal representation11. 3. RIGHT TO A FAIR HEARING The international human rights law regards the right to a fair hearing as a basic principle. The right to a fair hearing protects individuals from arbitrary and illegal deprivation or suppression of their basic rights and freedoms. Fair trial and just decisions are essential elements of access to justice12. The Tomasevic case is of great importance in respect of the right to a fair hearing. This case related to the criminal trial of an accused. The latter was representing himself. Bell J stated that it was the primary duty of every judge to ensure that the trial was fair. This applies to both criminal as well as civil cases. He also stated that the rule of law and the judicial process require judges to ensure a fair trial. In addition, the rights specified in the ICCPR would be guaranteed, if there was a fair trial13. In Steel and Morris v UK, the ECJ dealt with the obligation of a State to respect the right of individuals to a fair hearing, by exploring the several means at their disposal that assist in this process. The ECJ further clarified that the provision of legal aid to individuals was one of the several means to ensure a fair trial14. The Court further stated that the right of access to a lawyer was conditional and not absolute in nature. Therefore, a state may restrict such access, if some legitimate objective is achieved, by such restriction. An instance of such restriction is the grant of legal aid by a state, on the basis of the financial status of the applicant. In addition, legal aid could be granted on the basis of the prospects of success of the applicants in court proceedings. If the applicants are provided with reasonable opportunities to present their case, then the state need not provide legal aid. The chief issue to be considered is that no individual is significantly disadvantaged by not being provided with legal aid by the state15. In Currie v Jamaica, a prisoner condemned to death brought a constitutional suit against the government. The state had refused to provide legal aid to this prisoner. The Human Rights Court (HRC) stated that the refusal to provide legal aid, in this case, would constitute a denial of fair hearing. Although, the provision of legal aid is not absolute; the HRC stated that the state was required to render the proceedings in a constitutional court available and effective. This is due to the fact that the proceedings in a constitutional court are intricate. The state was under an obligation to provide legal aid to the applicant; because, the denial of legal aid effectively deprived the applicant of access to the court16. In Golder v United Kingdom, the applicant was a prisoner who had been denied access to a solicitor. The intention of the applicant was to discuss with his solicitor the prospects of legal action, in a civil suit. The state’s denial constituted a breach of the right to a fair hearing. In this case, although the state had not prevented the applicant from bringing a suit, it had prevented him from commencing legal proceedings at that time17. The ECJ held that the fair conduct of a civil proceeding, presupposes the right to file a suit in the first instance. It also stated that the convention assumes a right of access to the court, in the manner as it presupposes the very existence of the court18. Individuals should not be deprived of access to the justice system, for the mere reason that they cannot defray the expenses incurred on account of independent advice or legal representation. In Australia, indigenous people constitute the poor and marginalized communities of society. They find it difficult to access the courts due to the prohibitive cost of litigation. Moreover, the state machinery has been unable to resolve the conflicts in society that had arisen from the differences between indigenous and other groups19. Substantive law has usually been accorded greater significance than procedure. Nevertheless, even a cursory glance at international and comparative jurisprudence suggests that procedure is of considerable importance, in guaranteeing a fair hearing20. Consequently, the policies and procedures adopted by legal systems should not be at variance with the various aspects of the right to a fair hearing that are part and parcel of the ICCPR. A. Legal Representation Without adequate representation, justice cannot be achieved. In Dietrich v. The Queen, the defendant was denied legal aid. Moreover, his request for an adjournment till such time as he obtained legal representation was turned down by the lower court. Subsequently, he was declared guilty on three counts. In his appeal to the High Court of Australia, he contended that this deprival of legal representation had caused him to be convicted on three counts, whilst he had been exonerated on the fourth count. However, the High Court of Australia, refused to accept that legal aid was to be provided as a blanket provision21. This judgement was in violation of the United Nations International Covenant on Civil and Political Rights, to which Australia is a signatory22. Similarly, the European Convention on Human Rights requires every defendant to be provided with legal aid, if deemed necessary in the interests of justice23. In this manner, the accused was convicted in the absence of a fair trial, and this was condoned by the highest court of Australia. This speaks volumes for the lack of equity in the Australian judicial system. The aforementioned Dietrich24case is a telling example of the substantial harm caused to an accused, due to the denial of legal representation and consequently, the denial of a fair trial. Therefore, it is imperative to provide the necessary access to legal representation and advice, in a timely manner, to individuals. This is undeniably, indispensable for the proper functioning of the legal system. Moreover, individuals resort to litigation, only if they are beset with serious problems. The Australian Legal System is inequitable, because it does not take cognisance of this basic fact. In addition, it has scant regard for the principles of various international treaties and agreements, which require a state to provide adequate legal representation and advice to its residents. The more fortunate members of society can acquire better legal representation, thereby improving their chances of obtaining a more favourable judgment. Moreover, a person with superior education usually has better acquaintance with the legal system. In addition, such persons have a better idea regarding their rights. These factors place them at a distinct advantage, in comparison to the underprivileged and indigent members of society. It is essential for any legal system to promote justice. Accordingly, the law must be free of prejudices. This could ensure justice; however, the achievement of fairness is an altogether different matter. Fairness connotes, deciding a case on its individual merits. It requires deep consideration of the antecedents and past actions of the accused. In some areas of law fairness is of greater significance than justice25. A fair hearing through proper legal representation will assure the enhancement of equity in Australian legal system. 4. CONCLUSION It is imperative to improve access to the justice system in Australia. There are several ways to achieve this, and some of these are given in the sequel. First, the funds provided for legal services are to be increased. Second, significant simplification of the extant legal procedures is to be engendered. This will reduce costs to a major extent. There are numerous benefits that can be realised by providing adequate access to justice; for instance there will be an improvement in the public’s confidence in the legal system; and affected parties can effectively safeguard their fundamental rights and interests. The right to a fair hearing ensures several of the human rights, of individuals in detention. It is an important component of the judicial process. This right consists of various elements that promote human rights, such as the provision of equal access to the courts; equality before the courts; the right to have legal assistance and representation; the right to procedural fairness; the right to a hearing without delay; the right to a competent and unbiased tribunal established under law; the right to a public hearing; and the right to a free interpreter, if necessary. A majority of these principles are inherent in the common law. However, effective policies have to be developed to ensure the proper implementation of the right to a fair hearing26. This right should invariably be made available to all the detained persons. Furthermore, the substantive and procedural elements of the right to fair hearing have to be balanced appropriately by developing the required policies. Thus, equality before law and the right to a fair hearing are indispensable for ensuring equity in the Australian legal system. 5. BIBLIOGRAPHY 1. Articles/ Books Brassil, Belinda, Excel HSC legal studies (2001) Fleming, Don and Daly, Anne, ‘The retreat of the legal profession from legal aid: labour market change in the Australian mixed model’ (2007) 14(1) International Journal of the Legal Profession 21 Lamb, Ainslie and Littrich, John, Lawyers in Australia ( 2007) 2. Case Law Dietrich v The Queen (1992) 177 CLR 292 Golder v United Kingdom 4451/70 [1975] ECHR 1 Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1 Steel and Morris v UK, 68416/01 [2005] ECHR 103 (15 February 2005) Tomasevic v Travaglini & Anor [2007] VSC 337 3. Treaties International Covenant on Civil and Political Rights, opened for signature 16 December 1966, art 14(3) (entered into force 23 March 1976) The European Convention on Human Rights, opened for signature 4 November 1950, art 6(3)(c) (entered into force 20 January 1966) 4. Others Choudree, Rajesh, Poverty and Access to Justice: An Overview at 25 October 2009 Human Rights Law Resource Centre Ltd, The Right to a Fair Hearing and Access to Justice: Australia’s Obligations (2009) < http://www.hrlrc.org.au/files/hrlrc-submission-access-to-justice-inquiry.pdf> at 25 October 2009 Submission to Senate Legal and Constitutional Affairs Committee inquiry on Access to Justice Lawyersalliance < http://www.lawyersalliance.com.au/documents/public_affairs/submission_on_access_to_justice.pdf> at 25 October 2009 The Essential Influences of Law, at 25 October 2009 UN Doc CCPR/C/50/D/377/1989 US Department of State, Australia Human Rights Practices, (1995) at 25 October 2009 Read More