8.127 A defendant’s right to a lawyer does not have a particularly long history. People accused of a felony had no right to be represented by a lawyer at their trial until 1836. Moisidis explains that ‘English criminal procedure for centuries stood for the principle that an accused charged with a felony should not be represented by counsel’. The truth, it was thought, might be hidden behind the ‘artificial defence’ of a lawyer—better for the court to hear the accused speak for themselves and judge their manner and countenance. Therefore, up until the late 18th century, defendants would typically respond to accusations in person.
8.128 The right to a lawyer is now much more widely recognised and subject to relatively few restrictions, as discussed below. However, 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, if necessary.
8.129 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.
8.130 In Australia, 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.
8.131 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’. Mason CJ and McHugh J also said that
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.
8.132 While it is within judicial power to delay a trial or set aside a conviction on natural justice or procedural fairness grounds, it is questionable whether it is part of the judicial function to order government to provide a service.
8.133 The right to a lawyer is undermined—made considerably less useful—where communications between client and lawyer are monitored or may later be required to be disclosed. Chapter 12 discusses the importance of protecting lawyer-client confidentiality and statutory limits on legal professional privilege.
Laws that limit legal representation
8.134 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.
8.135 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.
8.136 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.
8.137 The Law Council criticised the limited access to a lawyer for persons subject to a preventative detention order under pt 5.3 div 105 of the Criminal Code, which enables a person to be taken into custody and detained by the Australian Federal Police 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.
8.138 Section 34ZO of the Australian Security Intelligence Organisation Act 1979 (Cth) 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’.
8.139 The right to have a lawyer of one’s own choosing may be limited by provisions in the NSI Act that 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.
8.140 This scheme has been criticised. The Law Council, for example, submitted that it restricts a person’s right to a lawyer of his or her choosing and ‘threatens the independence of the legal profession’.
8.141 Some have suggested that ‘special advocates’—lawyers with a security clearance permitted to access classified information—could be appointed to represent defendants in certain circumstances. Special advocate regimes are found in Canada, New Zealand and the United Kingdom.
Legal aid and access to justice
8.142 As discussed above, the positive right to be provided with a lawyer at the state’s expense is not a traditional common law right, but it is nonetheless very important—particularly, as the High Court has recognised, for those on trial for serious offences. Even if a court will order a stay of proceedings against an unrepresented defendant in a serious criminal trial, this may be of little assistance to those charged with non-serious offences. It will also not help victims of crimes and others who may seek access to justice but cannot afford to pay for legal representation. 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.
8.143 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’. The Council stressed the importance of access to legal representation and highlighted some of the practical restrictions on access to legal aid, stating that ‘it is clear that under existing guidelines it is possible to convict and imprison a person who is not deemed eligible for legal aid’.
8.144 Access to justice has been the subject of many reports, in Australia and elsewhere, including recent reports by the Attorney-General’s Department and the Productivity Commission. The Law Council suggested that an ‘in-depth inquiry into the consequences of denials of legal assistance’ still needs to be conducted.
Dietrich v The Queen (1992) 177 CLR 292, 317 (citations omitted). ‘The defendant could not have the assistance of counsel in presenting his case, unless there was a point of law arising on the indictment; since the point of law had to be assigned before counsel was allowed, the unlearned defendant had little chance of professional help’: Baker, above n 14, 417. ‘So the prosecutor could tell the jury why the defendant was guilty, but there was no advocate to say why he was not’: Bingham, above n 3.
Moisidis, above n 13, 10.
Dietrich v The Queen (1992) 177 CLR 292, 311.
Crimes Act 1914 (Cth) s 23L(1)(b). See also Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, 12th Report of 2002 (October 2002) 416.
The 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. See Ch 12.
See, eg, National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 29, 39, 46.
Ibid s 39(5).
Law Council of Australia, Submission 75; Councils for Civil Liberties, Submission 142.
Law Council of Australia, Submission 75.
Gilbert and Tobin Centre of Public Law, Submission 22; Law Society of NSW Young Lawyers, Submission 69.
Gilbert and Tobin Centre of Public Law, Submission 22.
Dietrich v The Queen (1992) 177 CLR 292.
Women’s Legal Services Australia, Submission 5.
Law Council of Australia, Submission 75.
Law Council of Australia, Submission 140.
Attorney-General’s Department, ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’ (2009).
Productivity Commission, above n 124.
Law Council of Australia, Submission 140.