Justice for all?

In The Age today, I read an opinion by George Williams, a professor at the University of New South Wales. In summary, his opinion is that the law needs to be reformed in four ways:

  1. There needs to be more funding for legal aid and community centres. Obtaining justice is highly dependent upon being able to afford legal representation.
  2. The federal system needs to be reformed. At the moment, there is a tremendous waste of money and resources, as well as a tendency for each level of government to blame the other for problems.
  3. David Hicks needs to be given a fair trial or returned to Australia.
  4. Australia needs a national charter of human rights.

It’s interesting to read someone else’s ideas for legal reform. Let’s look at each point.

1. Legal representation

I would definitely agree that the legal system is weighted towards those who can pay for legal representation. One of my first posts on this blog was on how awful it was to be sued by our former landlords. And I am an educated lawyer, a commercial litigator and experienced advocate. How much scarier would it be if you had no legal training and no legal representation? There is a real potential for unscrupulous individuals to use litigation to bully people. Legal representation is far too expensive for most ordinary people. I know that I certainly couldn’t have afforded to hire myself at the rates at which my last firm used to charge. And I wasn’t working for a mega-firm at that time, either. When I worked for a mega-firm…well, let’s just say wounded bulls weren’t a patch on one of our firm’s bills. I suspect the six-minute billing unit is instrumental in pushing up legal bills. I continue my campaign for its abolition (mentioned in this post). I think six minute billing makes firms obsessed about meeting targets and maximise profits, and obscures the fundamental purpose of a law firm: to serve the client efficiently and effectively. It also drives legal representation out of the range of the ordinary person.

The answer is not just about providing more legal aid and funding for community legal centres, although that certainly helps. But I think it is deeper than this. I would like to see more opportunity for everyday people to learn about and understand basic concepts of the law (contracts, mortgages, wills, personal injury and the like). Unfortunately, many lawyers like the law to seem arcane and unknowable, because it keeps them in a job. I’m sure some lawyers deliberately over-complicate a matter so that they appear to be clever. Also, as I’ve mentioned in a previous post, sometimes lawyers don’t have an opportunity to sit down and think: “What’s this dispute about really?”

If a person cannot find adequate legal representation, they often have to represent themselves. I have written posts on litigants in person previously (here and here). Having worked in and around courts for most of my career, I have always found litigants in person very difficult to deal with. Litigants in person certainly use up valuable court time, often with spurious arguments, but a judge cannot just dismiss them, because there may be an argument of value in there. As I have said previously, the ideal situation is to find out what makes a litigant in person so that it can be nipped in the bud before the person becomes a fully fledged conspiracy theorist. Is it because legal advice is too expensive or difficult to obtain? Or is it because the person does not wish to take the legal advice he or she initially received? I think there needs to be more research into this.

2. The Federal System

This isn’t the first law reform that would spring to my mind, but I would also agree that the present system doesn’t really work. There is far too much opportunity for “buck-passing”. When I studied Constitutional Law many years ago, we learnt about Vertical Fiscal Imbalance – that is, the Commonwealth has all the money, and the State has responsibility for vital services like health and education. Obviously, it is a legal matter in that the High Court has construed the Federal taxation powers very broadly, narrowing the pool that the States can dip into.

I also think the taxation system in this country is very badly organised. All too often, money goes from one arm of government to another. So, as I have mentioned in a previous post, we got the baby bonus when our daughter was born, but had to pay it straight back to the Federal Government a month later because of the tax my husband had to pay after he got retrenched. And what about the first home owner’s grants? The Federal and State grants together don’t cover the amount of stamp duty a home owner has to pay to the State government – why not just give it straight to the State government instead of pretending to “give” it to us?

3. David Hicks

As I have discussed in a previous post, I don’t think Hicks should continue to be detained by the US. It is hypocritical of Australia and the US to try to force “democratic values” on other countries, but fail to practice them in one’s own country.

Nonetheless, I detect a certain amount of “bandwagoneering” on this topic. Yes, what has happened to Hicks is horrible, and it should not be allowed to continue. But lawyers should not be distracted by a high-profile “sexy” issue such as this, which affects only one person (albeit in a disasterous way). I am concerned that it is easier for lawyers to concentrate on an issue like this, and forget the smaller problems which affect many Australian people (such as the difficulties in obtaining legal representation mentioned at the beginning of this post). Everyone has a right to their case being heard.

4. Charter of Human Rights

When I was younger I was a great fan of human rights charters. I was more left-wing, less cynical and jaded. But I must confess that I’m not so enamoured of them now, although I concede that such a view is contentious and unfashionable. I come to this view after being thoroughly depressed by International Law and human rights law at university: it always seemed to me like shutting the door after the horse has bolted. Everyone looks at Rwanda and says “Genocide is an abuse of human rights” – but did anyone stop it happening at the time? A Charter of Rights just gives lawyers a reason to ponce around and act like they are good for humanity, but I don’t know whether it will really make such a difference in the long run. Feel free to castigate me for being such a nasty old curmudgeon.

I tend to think that if a government or an individual is determined to abuse someone’s rights, they’ll do it anyway. Look at the Freedom of Information laws, for example. They were designed to give the public access to government documents, but as far as I can see, the government has just devised niftier ways of hiding information from the public as a response. For example, I cite this recent High Court case on the FOI legislation. Depressing.

5. Conclusion

What would my priorities be? I like the first point made by Williams about the difficulties in obtaining legal advice. I’d also like a greater awareness of the law in the community, for legal advice to be more affordable and some research on litigants in person to be carried out.

In terms of the federalism point, I’d like there to be greater uniformity of laws across Australia (eg, Uniform Evidence Law, Uniform Torrens Acts, Uniform Criminal Codes etc). It seems stupid to have regional variation. I have some interesting arguments about ways in which Equity should be used more flexibly to make our commercial law fairer, but I’ll save them for the PhD thesis. On a more “political” level, I’d also like our taxation system to be simplified and the bureaucracy and doubling up to be reduced.

I’d like Hicks to be brought home, but I’d also like to keep in mind the plight of other everyday people in Australia who are in difficulty because they don’t understand the law and don’t know where to turn.

My main concern, I suppose, is that the law be approachable and accessible for as many people as possible, and that people have a chance to be treated fairly and equally, to obtain quality and affordable legal representation, and to have their case heard. I think all of my wishes flow from that basic tenet.

Update

An interesting opinion in The Australian about the use and abuses of a Charter of Human Rights.

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Filed under Australia, David Hicks, federalism, human rights, law, law firms, litigants in person, society, tax law

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