Election that takes us nowhere ... Legal aid only encourages the poor to be "extremely litigious" ... Removing government funded advice for "queue jumpers" ... Coalition seeking to shaft the Constitution ... Procrustes issues a pent-up moan
Pollock: told the Garter King-of-Arms where to get off
THERE was some back-biting over Procrustes' suggestions that Queensland might want to go the whole hog and bring back Serjeants-at-Law, and with them the full panoply of heraldic devices.
Attorney General Bleijie might want to contemplate the trials of one of his great predecessors.
When Lord Chief Baron Pollock was appointed attorney general in 1834, he was knighted and had to provide himself with a coat of arms.
He applied to the College of Arms but found the fees very expensive. After a good deal of negotiation a messenger from the Garter King-of-Arms called and informed him of the lowest price. Pollock answered:
"Tell Garter King-of-Arms, with my compliments, that he may go to the devil sable in flames gules with a pitchfork ardent stuck into his backside proper."
Couldn't have put it better myself.
* * *
Dazzling Daryl Williams: put the butter knife through legal aid
MEANWHILE, as I write, the farcical federal election draws to a close, leaving us time to contemplate where an Abbott Ministry might take us.
To a refurbishment of legal aid, perhaps?
Both major parties have made mewling noises about the need to ensure that the very poor have representation in the courts.
So what, you might ask, since the High Court indicated in Dietrich over two decades ago that serious offences could not be prosecuted without defence counsel being available.
Daryl Williams, as Howard's first attorney general, was required to show fealty to the values of his boss by slaughtering the legal aid budget in 1996, and duly did so.
Other wets in that cabinet, including Robert Hill and Phil Ruddock, also had to pass tests of fire and ice.
Labor in office has done nothing about returning legal aid funding to anything like pre-1996 amounts.
The same constriction has been observed in the UK, where Francis FitzGibbon QC of Doughty Street Chambers noted that the decrease in available legal aid funds led to an increase in the number of self-represented litigants.
This had occurred on a scale that caused the England and Wales Bar Council to publish A Guide to Representing Yourself in Court.
FitzGibbon concluded:
"The Guide's 70 glossy pages can be compressed into the old lawyer's adage that anyone who represents himself has a fool for a client."
FitzGibbon: denial of legal aid will increase costs FitzGibbon went on to comment on the 2012 British Legal Aid, Sentencing and Punishment of Offenders Act, which put an end to legal aid funding in areas of civil law of particular relevance to poorer members of the community, such as employment, housing, social welfare and medical negligence.
Kenneth Clarke, the Justice Minister introducing these legislative secateurs, said:
"What we mustn't do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious."
The Brits are really hitting off the back tee: this was pretty much where Dazzling Daryl Williams got us in 1996.
Noting the actual costs involved in poorly (self) run litigation (extra court time is an obvious candidate) FitzGibbon concluded said:
"The denial of legal aid seems likely to increase rather than decrease costs."
The same factors operate in this country, but both parties maintain their bullish stance against the wastrel poor becoming "extremely litigious".
* * *
IT has been a joy to observe that while George Brandis has been making the ritual noises about ensuring the very poor can have representation (for what George?), his comrade in arms, Scotty (I pray for them occasionally) Morrison has been announcing that the devilish queue jumpers will have public funding removed from the advice process regarding their refugee appeals process.
Morrison: sounding and looking more disturbed
Note that this was funding for the giving of advice, not for the actual court representation, which has been provided for a long period of time by a small army of pro bono advocates.
Wonderfully, Abbott chimed in to say that Scotty's idea was entirely logical. The non-queue jumpers sitting in African refugee camps didn't get this freebie, why should evil queue jumpers?
Perhaps because there are no decisions of Commonwealth officials to challenge if you haven't actually arrived in Australia.
Meanwhile, the misrepresentation of the amounts involved, and that the Commonwealth pays lawyers for actual appearance work leads to wonderfully inane commentary about the Coalition's statement, such as Shagger of 31 August 2013:
"There'll be a few lawyers (sic) Beamers, Ferraris and Mercs on the market soon, snap up a bargain while you can."
With the amount for a "win" capped at $5,000 (to cover solicitor and barrister) in the federal courts' system, a barrister would have to be winning at a rate that defies belief to afford a Ferrari.
* * *
HAND-IN-HAND with the suppression of legal assistance, runs Brandis' assertions as to rescuing human rights from the clammy grasp of the Left.
George is going to go through the statute book weeding out unfortunate legislative incursions into our precious common law rights.
Sounds ducky. But, his mate Scotty has already flagged that the evil queue jumping towel-heads will not be getting any judicial reviews of the decisions taken against them by Commonwealth officials (goodbye Constitution on that point).
Gosh, access to courts to vindicate a legal position is one of the classic common law rights. Silly me: human rights aren't available to individual members of undesirable minority groups.
What will George make of the statutory maze created since 9/11, devoted to national security and all of it destructive of natural justice.
Oh, George didn't mean that he would go in to bat for human rights ahead of national security. Heaven forbid.
The vast ASIO HQ: skilled at suppression of procedural fairness
And the same will of course apply in respect of the ASIO Act's suppression of procedural fairness, pursuant to which Sheik Leghaei was deported (no sermon denouncing the infidel was ever reported against this cleric who spent more than a decade in Australia working on inter-faith relations).
Now 50 or so Sri Lankan asylum seekers, who have been granted refugee status, are kept in detention. None of these people know what is alleged against them.
Only the other day, your scribe found himself reading a 1982 Australian Quarterly, where a villainously bearded Nick Seddon was writing about ASIO and Accountability.
Three decades later Nick looks terribly respectable, but ASIO has increased its level of unaccountability and secrecy.
Plus ca change, and so it will be under an incoming Coalition government.
As one commentator noted when George spoke on the record questioning ASIO's increased surveillance powers in 2011: George cares, but never enough to actually vote against the increase in governmental power and consequent loss of autonomy for the community.