10.108 It is important to distinguish between two senses in which a person may be said to have a right to a lawyer. The first (negative) sense essentially means that no one may prevent a person from using a lawyer. The second (positive) sense essentially suggests that governments have an obligation to provide a person with a lawyer, at the government’s expense.
10.109 Both of these types of rights are reflected in art 14 of the ICCPR, which provides, in part, that a defendant to a criminal charge must be:
tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
10.110 Although now well entrenched in the common law, even this first type of right does in fact not have a particularly long history. In England, people accused of a felony had no right to be represented by a lawyer at their trial until 1836. However, the right to a lawyer is now widely recognised and subject to relatively few restrictions, as discussed below.
10.111 The second type of right—to be provided a lawyer at the state’s expense—is less secure. In Dietrich v The Queen, Mason CJ and McHugh J said:
Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial.
10.112 The court held that the seriousness of the crime is an important consideration: ‘the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only’.
10.113 In this same case, Mason CJ and McHugh J said that, although ‘the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense’,
the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.
Laws that limit legal representation
10.114 The ALRC is not aware of any Commonwealth laws that limit a court’s power to stay proceedings in a serious criminal trial on the grounds that the accused is unrepresented and therefore will not have a fair trial.
10.115 Nevertheless, Commonwealth laws place limits on access to a lawyer. Under s 23G of the Crimes Act, an arrested person has a right to communicate with a lawyer and have the lawyer present during questioning, but this is subject to exceptions, set out in s 23L. There are exceptions where an accomplice of the person may try to avoid apprehension or where contacting the legal practitioner may lead to the concealment, fabrication or destruction of evidence or the intimidation of a witness. There is also an exception for when questioning is considered so urgent, having regard to the safety of other people, that it cannot be delayed.
10.116 Although these exceptions may mean a person cannot in some circumstances see a lawyer of their own choosing, the person must nevertheless be offered the services of another lawyer. The ALRC has not received submissions suggesting that these limits are unjustified.
10.117 The Law Council criticised the limited access to a lawyer for persons subject to a preventative detention order under the Criminal Code pt 5.3 div 105, which ‘enables a person to be taken into custody and detained by the AFP in a State or Territory prison or remand centre for an initial period of up to 24 hours’:
Preventative detention orders restrict detainees’ rights to legal representation by only allowing detainees access to legal representation for the limited purpose of obtaining advice or giving instructions regarding the issue of the order or treatment while in detention (Section 105.37 of the Criminal Code). Contact with a lawyer for any other purpose is not permitted.
10.118 The Australian Security Intelligence Organisation Act 1979(Cth) s 34ZO limits a detained person’s contact with a lawyer; s 34ZP allows a detained person to be questioned without a lawyer; and s 34ZQ(9) allows for the removal of legal advisers whose conduct ‘the prescribed authority considers … is unduly disrupting the questioning’ of a detained person. However s 34ZQ(10) provides that in the event of the removal of a person’s legal adviser, ‘the prescribed authority must also direct … that the subject may contact someone else’.
10.119 The right to have a lawyer of one’s own choosing may be limited by provisions in the NSI Actthat provide that parts of a proceeding may not be heard by, and certain information not given to, a lawyer for the defendant who does not have the appropriate level of security clearance. The Act also provides that the court may recommend that the defendant engage a lawyer who has been given, or is prepared to apply for, a security clearance.
10.120 This scheme was criticised by the Law Council, which submitted that it ‘may unjustifiably encroach on the right to a fair trial in two ways’:
Firstly, it potentially restricts a person’s right to a legal representative of his or her choosing, inconsistent with the rule of law, by limiting the pool of lawyers who are permitted to act in cases involving classified or security sensitive information. Secondly, the security clearance scheme threatens the independence of the legal profession by potentially allowing the executive arm of government to effectively ‘vet’ and limit the class of lawyers who are able to act in matters which involve, or which might involve, classified or security sensitive information.
Legal aid and access to justice
10.121 The positive right to be provided with a lawyer at the state’s expense is not a traditional common law right. Even if a court orders a stay of proceedings against an unrepresented defendant in a serious criminal trial, this power is of little assistance to others who seek access to justice. The focus of the fair trial rights in this chapter is on the rights of people accused of crimes, but this is not to discount the importance of access to justice more broadly.
10.122 The importance of funding for legal aid was raised by some stakeholders to this Inquiry. Women’s Legal Services Australia submitted that many of their clients cannot afford legal representation and legal aid funding is insufficient for their needs. These clients must either continue their legal action unrepresented or not pursue legal action. The Law Council said that ‘the right to a fair trial and effective access to justice is undermined by a failure of successive governments to commit sufficient resources to support legal assistance services, as evidenced by increasingly stringent restrictions on eligibility for legal aid’.
Dietrich v The Queen (1992) 177 CLR 292, 317 (citations omitted).
Crimes Act 1914 (Cth) s 23L(1)(b). See also Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Twelfth Report of 2002 (October 2002) 416.
‘[T]he investigating official must offer the services of another legal practitioner and, if the person accepts, make the necessary arrangements’: Crimes Act 1914 (Cth) s 23L(4).
Law Council of Australia, Submission 75. The Law Council also said that ‘both the content and the meaning of communication between a lawyer and a detained person can be monitored. Such restrictions could create unfairness to the person under suspicion by preventing a full and frank discussion between a client and his or her lawyer and the ability to receive relevant legal advice’: Ibid. Client legal privilege is discussed in Ch 13.
See, eg, National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 29, 39, 46.
Ibid s 39(5).
Law Council of Australia, Policy Statement: Rule of Law Principles (March 2011) principle 4.
Women’s Legal Services Australia WLSA, Submission 5.
Law Council of Australia, Submission 75.
Attorney-General’s Department, ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’ (2009).
Productivity Commission, above n 106.