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Polemic: Fight the powers that be

News

Cite as: (2004) 78(9) LIJ, p. 30

Lawyers have an important role to play in holding government actions to account.
By Liz Curran

Recent governments have used the negative public perception of lawyers in a pervasive manner to enact legislation designed to stifle and deter public interest litigation and to sideline commentary of the legal profession.

It is essential to the rule of law that lawyers have a role in public life. Lawyers undertake pro bono public interest litigation that often examines the lawfulness of Executive action. They are also involved in law reform comment with the aim of ameliorating and improving negative impacts the law and its administration of which they have a working knowledge. Governments, while they might not like their authority being challenged, are elected to govern in the best interests of the people. Lawyers enable scrutiny of government action.

Illustrative of this concern are two recent examples at federal level in the area of immigration law. While on the one hand encouraging the development of pro bono, the Commonwealth announced its intention to sue the pro bono lawyers for costs[1] in relation to the Tampa litigation.[2]

The Commonwealth’s argument was that the litigation was not in the public interest and was an “unnecessary court action”.[3] In the end, the costs were only sought against the litigants, Liberty Victoria and Eric Vadarlis, rather than their legal representatives.

It would seem that to question the lawfulness of detention by the Commonwealth of asylum seekers who are incommunicado, detained by the military, goes to the core of the liberal democratic view of the need to protect the individual from the power of the State. The Commonwealth’s argument was rejected by the Full Court of the Federal Court which outlined the importance of the public interest in para 28 of the judgment.[4]

The second illustration is the threat of suit for costs against pro bono lawyers which has been proposed in new migration litigation reforms of the Minister for Immigration and the Attorney-General. The Attorney-General has stated a concern that “some unethical lawyers are encouraging unmeritorious applications ... The government ... will legislate to make it clear that courts have power to make personal costs orders against lawyers ... ”.[5] Fortunately, the power to make the determination rests with the Court.

Fundamental to the rule of law and the separation of powers is the right to representation. Section 75 of the Constitution[6] allows judicial review of the Constitution so people can pursue cases examining whether the State is acting with lawful authority. Executive claims that cases are unmeritorious are spurious when the cases are against the Executive itself and there is self-interest in such a claim.

At a Victorian state level, there is also cause for concern. In mid-May 2004, parliamentarians participating in the discussion about the establishment of a Police Anti-Corruption Standing Commission claiming that those arguing for it wanted a “wig fest”[7] or to “line their own pockets”[8] thus deflecting discussion from the issue, namely the police corruption and the independence of any inquiry.

Conclusion

The public perception of lawyers is often as “money-grubbing,” unethical, “guns for hire”,[9] although individuals often speak highly of their own lawyers.[10] Despite good work done by lawyers it barely touches the consciousness of the general population. It takes only one lawyer defalcating on a trust account for extensive media coverage[11] or critical commentary[12] to bring the whole profession into disrepute.

Arguably, the profession needs to become better at communication strategies to the broader public on their work towards improving the structures within the legal system and access to justice. This may assist in neutralising the negative perception of lawyers as being self-interested despite the extensive work the profession does for the public good.[13]

In addition, the public needs to know the implications of the federal Attorney-General’s plans as they could act as a deterrent to the public’s access to free lawyers. Today, the proposed legislation is in immigration law but is this the “thin end of the wedge”? After all, there are other sensitive areas for the Executive such as social security law.


LIZ CURRAN is a lecturer in law and legal studies at La Trobe University and is the supervising solicitor of the student clinical legal education program at the West Heidelberg Community Legal Service.

Polemic
1. adj. controversial, disputatious
2. n. practice of combative argument and controversy; disputatious attack on some opinion, idea or doctrine; aggressive controversy.
[17c: from Greek polemikos, warlike.]


[1] See media release, 21 December 2001, “Costs of the Tampa”, http://www.law.gov.au.

[2] The author is a member of the Committee of Liberty Victoria and was therefore one of the parties to the litigation taken on behalf of the asylum seekers in relation to the Tampa in the Federal Court.

[3] The Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs and the Victorian Council for Civil Liberties, Full Court of the Federal Court, 21 December 2001, Melbourne before Black CJ, Beaumont and French JJ.

[4] Note 3 above, see also para 30.

[5] See press release, 11 May 2004, Reforms to Improve Efficiency of Migration Legislation at http://www.ag.org.au.

[6] The Commonwealth of AustraliaConstitution Act (Cth) 9 July 1900.

[7] ABC TV news, Friday, 21 May 2004.

[8] ABC TV news, Monday, 24 May 2004.

[9] For a further discussion of the unsympathetic portrayal of lawyers in media and film see Y Ross, Ethics in Law, Lawyers’ Responsibility and Accountability in Australia (3rd edn), 2001, Butterworths Australia, pp13-20.

[10] Annual Report of Victorian Legal Ombudsman 2002.

[11] The Age, 20 April 2004, p4.

[12] See Dr RG Smith, “Misuse of older persons assets by professionals”, Australian Institute of Family Studies Symposium on Assets, Aging and Abuse: Emerging issues for families, 12 February 2003, http://www.aic.gov.au/conferences/other/smith_russell/2003-02-AIFS.pdf.

[13] In Australia, in the year 2001/02 law firms spent a total of 94,100 hours providing services free of charge with barristers undertaking 29,000 pro bono hours of free legal work. Survey of Legal Services, Australian Bureau of Statistics, 2001-2002 http://www.abs.gov.au.

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