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Editors --- "DownUnderAllOver: Developments around the country" [2002] AltLawJl 73; (2002) 27(4) Alternative Law Journal 192

A regular column of developments around the country

Federal Developments

Australia ratifies the Rome Statute of the International Court

Australia ratified the Rome Statute of the International Criminal Court on 1 July 2002-just in time as the Statute entered into force on the same day.

Australia's ratification followed extensive scrutiny by the Joint Standing Committee on Treaties within the Fed­ eral Parliament as well as considerable discussion within the community. Debate within the government itself was well covered in the media.

The jurisdiction of the Court

The ability of the Court to consider cases is limited by the terms of its Stat­ ute and the willingness of the governments of states to confer jurisdiction upon it. In particular, the jurisdiction of the Court is not retrospective: it can only consider crimes committed after 1 July 2001.

The jurisdiction of the Court includes cases (a) committed on the territory of a state that is a party to the Court; or (b) committed by a national of a state that is a party to the Court (wherever these occur). Additionally:

• the Court can consider any situation referred to it by the Security Council of the United Nations;

• non-parties to the Court may accept the jurisdiction of the Court in relation to a particular crime.

Significantly, the Court will be obliged to decline jurisdiction where the case has been, or is already being, genuinely investigated or prosecuted by a state that has jurisdiction over it.

A significant exception to the jurisdiction of the Court was also created with the passage of Security Council Resolution 1422, which exempts from jurisdiction (for at least 12 months) those in United Nations operations who are current or former officials of a state not a party to the Court.

The crimes that the Court can try

The Court can try persons for:

• genocide - which requires establishing 'intent to destroy, in whole or in part, a national, ethnical, racial or religious group';

• crimes against humanity -including, as part of a widespread or systematic attack directed against a civilian population: extermination; enslavement; torture; rape; enforced prostitution; forced pregnancy; enforced sterilisation; enforced disappearances; and persecution on political, racial, national, ethnic, cultural, religious or gender grounds; and

• war crimes - including grave breaches of the Geneva Conventions as well as a more limited class of crimes committed in armed conflict not of an international nature.

The jurisdiction of the Court is also to include the crime of aggression, although this will only become effective when states can settle on a definition of that crime.

With regard to crimes under the jurisdiction of the Court, it is notable that:

• the official capacity of a person is no defence;

• no statute of limitation applies;

• one can be guilty of aiding and abetting, ordering or inducing; and

• a commander can be liable for the actions of their subordinates.

An end to impunity?

The Court has only just begun. Indeed so far, all that exists to constitute the Court is a handful of staff based in the Netherlands. The building that will eventually house the Court is not expected to be completed until some­ time in the year 2007.

That said, the establishment of the Court, following on from the establishment of the tribunals for Rwanda and the Former Yugoslavia, acts as a powerful signal that the international community is no longer prepared to tolerate international crimes. For too long those who violated fundamental human rights have been able to count on the lack of willpower within the international community to bring them to justice. •SB

Giving voice to the voiceless -homeless persons and the right to vote

The right to vote - a human right enshrined in the International Covenant on Civil and Political Rights -is rendered much harder for homeless people to enjoy because of registration requirements. Of the estimated 88,000 home­ less people who are eligible voters in Australia, it is believed that between 33% and 90% are not registered to vote. This suggests that between 29,000 and 80,000 homeless people could not vote in the 2001 Federal Election.

The Big Issue, the Council to Home­ less Persons and the Homeless Persons' Legal Clinic have recently made submissions to the Inquiry into the 2001 Federal Election being conducted by the Joint Standing Committee on Electoral Matters. Their submissions identified the following impediments to homeless people registering and exercising their right to vote:

Section 99 of the Commonwealth Electoral Act 1918 (Cth) requires that a person must have lived in an electoral Subdivision for at least one month in order to vote in that Subdivision. Many homeless people live in temporary or transient accommodation and do not satisfy this requirement.

• The form under s.98 of the Act re­ quires that a person provide a 'residential address' to be included on the Electoral Roll. Many homeless people do not have a recognised residential address.

Section 101 of the Act provides that it is an offence for an elector to fail to give notice of a change of address within 21 days. Section 245 provides that it is an offence for an elector to fail to vote at an election. The monetary penalties associated with these offences are a significant disincentive to homeless persons registering as electors.

Section 96 of the Act entitles certain persons with no 'real place of living' to enrol as itinerant electors. How­ ever, enrolment as an itinerant elector is administratively burdensome and is not possible if the person has resided in an electoral Subdivision for a month or longer.

The Big Issue, the Council to Home­ less Persons and the Homeless Persons' Legal Clinic argued that enfranchisement of the homeless requires measures and reforms including:

• amendment of the Act to enable homeless people to register to vote in a Subdivision with which they have a 'close connection';

• amendment of the Act to exempt homeless persons from the monetary penalties associated with failure to notify a change of address and failure to vote;

• amendment of the Act to simplify and streamline the itinerant voter provisions; and

• investment by the Australian Electoral Commission of greater time and resources to educate and assist homeless persons about their right to vote. This should include locating polling booths and providing administrative assistance at crisis accommodation centres and homelessness agencies.

The submissions were very well received by the Committee which indicated that it is committed to working with the organisations concerned to make the necessary legislative and policy reforms to enfranchise the home­ less. •PL


A gangster's paradise (lost)

Consistent with the NSW Government's ongoing policy platform around so-called law and order issues, the Justice Legislation Amendment (Non­association and Place Restriction) Act 2001 (NSW) takes pride of place in a package of legislation that came into force in the period May to July 2002. The Act grants the power to impose restrictions in relation to freedom of association and presence in certain places in the making of the following orders:

• bail

• parole

• custodial leave

• home detention, and

• sentencing.

While the policy intention behind the Act is to curb 'gang-related' activity by denying 'gang-members' the freedom to meet and frequent certain places, there is no jurisdictional limitation in the Act to reflect this - indeed, it would be difficult to craft criteria to capture the targeted 'gang-land' constituency. After all, what is a 'gang­ related' offence?

The NSW Law Society's Criminal Law Committee and the Children's Legal Issues Committee have publicly voiced concerns about the disproportionate application of the Act in relation to young people and Aboriginal people. Notably, there is no statutory limitation under the Act as to the circumstances in which non-association and place restriction may be made (eg, considerations such as place of work/education/ family or kinship connections/place of residence) making the lawyer's role critical in ensuring any such conditions are proportionate and reasonable in all the circumstances. This is particularly so given that breach of an order imposing non-association and place restrictions under the Act is a criminal offence.

A republic by slow degrees

The NSW Upper House Law and Justice Committee has launched an inquiry into a proposal to regulate the use of coats of arms in connection with the Parliament, the courts, the office of the Governor, and state instrumentalities – a euphemistic way of phasing out the use of United Kingdom livery in favour of home-grown public symbols. Per­ haps it will catch on?

Higher (l)eaming-corruption on campus

The NSW Independent Commission Against Corruption (ICAC) published on 6 August 2002, an investigation report in relation to the management of graduate student records, including academic transcripts at the University of Technology, Sydney (UTS). The inquiry commenced in July 2001 in respect of allegations that a graduate student adviser at the UTS Graduate School of Business accessed student records and substituted 'cancelled' in the place of 'failed' in return for payment of money, favours and hospitality. ICAC referred the matter to the NSW Director of Public Prosecutions (DPP) with the recommendation that the DPP consider prosecuting the graduate student adviser for unlawfully altering computer data and accepting bribery, amongst other charges.

ICAC investigated on the basis that 'it is in the public interest to expose the conduct of public officials that weakens the integrity of public institutions'. It further viewed its investigation as an inquiry into the integrity of electronically stored data and risk management strategies. ICAC identified similar weaknesses at other NSW universities and public sector organisations, indicating that it has in mind a broader agenda.

Ethical threshold for litigation

Flower & Hart is still echoing in the corridors of the legal profession. That case made it clear that legal practitioners should not file a claim, cross claim or defence where the legal practitioner knows that there is no factual and/or legal basis for doing so.

Under the Civil Liability Act 2002 (NSW), legal practitioners in NSW are now subject to a more explicit duty to refrain from providing legal services on a claim 'or defence of a claim for dam­ ages' where the legal practitioner does not 'reasonably believe on the basis of provable facts and a reasonably arguable view of the law' that the claim/defence has reasonable prospects of success.

A charge of professional misconduct or unsatisfactory professional con­ duct or an adverse costs order may be laid at the feet of a legal practitioner who does not comply with the requirements of the Act. The content of the threshold test of 'reasonable prospects of success' is not yet settled. The Act makes it clear that it is necessary but not sufficient that the legal practitioner has available at the time of acting, material which it is reasonably believed provides a proper basis for alleging the fact, based on a reasonably arguable view of the law.

Nicholas Beaumont in the latest NSW Law Society Journal (Vol 40(7), August 2002) argues that two possible constructions of the further requirement 'reasonable prospects of success' are available, namely:

1. that the claim/defence is not fanciful, or has a real chance of success; and

2. that the prospects of success must be such as to justify, in all the circumstance, the prosecutor's defence of the proceeding (p.45).

Beaumont prefers the first construction but the question is not yet settled.

This represents an extension of the ethical obligations incumbent on legal practitioners and may provide fruitful ground for attacking vexatious and mal fides claims/defences. It is not difficult to imagine the Act being used against less empowered litigants, to further discourage them from bringing claims. It might also be a sword in the hands of effective legal representatives of such litigants. • JS

Northern Territory

Equality before the law: gay and lesbian law reform in the NT

Darwin Community Legal Service presented a submission to the Northern Territory (NT) Government on gay and lesbian law reform in May 2002. At the time of writing, the NT Government has not yet stated its position in relation to the proposed reforms, which include Age of Consent, Domestic Violence, Anti-Discrimination Law, Family and Reproductive Issues, Homosexual Panic Defence, Property Rights, Liabilities and Access to Benefits.

The Criminal Code (NT) sets the age of consent for gay men at 18 years. By contrast, the age of consent between a male and a female is 16 years. This legislative discrimination against men who wish to have sex with men is not appropriate in light of contemporary social standards supporting equality before the law regardless of sexuality. The submission recommends that the disparity between the age of consent for gay men and heterosexual people be removed.

The current provisions in the Domestic Violence Act (NT) do not cover gay or lesbian relationships, unless the couple has cohabited. There­ fore, where individuals of the same sex are not, or have not, been living together, there is no protection under the Act. The legislation should be amended to ensure that people in violent domestic relationships can benefit from access to restraining orders, regardless of their sexuality.

The Anti-Discrimination Act (NT) offers significant protection to gay, lesbian and bisexual people. However, exemptions that permit discrimination ought be removed to further strengthen it. Currently, the Act provides an exemption in the area of sexuality in the workplace where the work involves the care, instruction or supervision of children and the discrimination is reason­ ably necessary to protect their physical, psychological or emotional well-being, having regard to all relevant circum­ stances of the case including people's actions. The submission recommends that this section be removed from the Anti-Discrimination Act.

The Anti-Discrimination Act also provides an exemption for religious bodies. The submission argues that this exemption should not extend to non-ministerial functions performed by religious organisations. Given that these groups provide a wide range of services to our community, often sup­ ported by the use of public funds, it is appropriate that gay, lesbian and bisexual people are clearly protected from discrimination in the context of these activities, for example, as workers or consumers.

In their terms of agreement with the NT Government, the current provider of reproductive services in the NT is prohibited from offering insemination or fertility services to single or lesbian women. The Anti-Discrimination Act allows this discrimination, stating that an 'artificial fertilisation procedure' or an 'artificial insemination procedure' is not to be considered a service. The Act should be amended to prohibit discrimination on the basis of sexuality in the area of reproductive services and the full range of medical and reproductive services should be available to all women in the NT.

Gay, lesbian and bisexual people living in the NT do not have the same opportunities to be involved in parenting as heterosexual couples. Discrimination occurs in a number of areas. The Adoption of Children Act (NT) limits adoption to couples who are married. Gay and lesbian couples are, however, eligible to foster a child under the Community Welfare Act (NT). Changes are recommended to ensure that the Adoption of Children Act does not discriminate against gay and lesbian couples.

The term 'homosexual panic defence' has been widely criticised as reinforcing the legitimacy of homophobic attitudes in the general community. The submission recommends reforms based on recommendations of the Western Australian Ministerial Committee, to ensure the defence is no longer available in the NT.

There is a significant body of law in the NT that operates to discriminate against non-heterosexual people in terms of access to property rights and financial benefits. The submission highlights several areas of concern, and calls on the government to undertake a review of legislation generally to ensure equality regardless of sexuality. Areas highlighted in the submission include de facto property settlements and the NT superannuation scheme.

The submission is a result of much consultation and collaboration with interested community members and a significant contribution by volunteers. It is now up to the NT Government to proceed with reforms to ensure that discrimination against gay, lesbian and bisexual people is unlawful in the Northern Territory.

For more information on this sub­ mission, please go to the DCLS's website-<>.

Cassandra Goldie, Wendy Morton and James McEwan (volunteer)

Darwin Community Legal Service.

Northern Territory's new drug laws: for show not effect

The NT Government's recent drug laws provide yet another example of political considerations and expediency get­ ting in the way of a proper approach to a genuine community problem. The increased powers to police and penal­ ties that fall from the new legislation will do nothing effective to address the increase in drug offences.

True, the new laws are 'harsher' and 'tougher'. (Don't the politicians just love using those terms?) True, they give the police more powers to search, arrest and medically examine people in their sights. Some of the new amendments have draconian repercussions. For example, the weighing of an illegal drug in order to determine whether it is trafficable or commercial (14 years or 25 years maximum penalty) now includes the pure drug plus whatever it is mixed with. In the area of illegal chemical drugs, this has potential for serious penalty repercussions: it will mean that many mere users, found in possession of a small amount of pure drug mixed with its typical admixture (eg talcum) will now be dealt with as possessors of a commercial quantity and subject to the highest penalty.

Likewise, owning literature (including Internet access) detailing how to grow or manufacture cannabis or other drugs whilst possessing any other thing that may be used in such growing or production (eg an empty pot plant or a screwdriver!) is now a crime carrying a maximum penalty of seven years jail (two years more than aggravated assault!).

The other main development is the creation of Drug House procedures. These permit police to have suspected premises (residential, commercial or licensed) declared a Drug House, thereby allowing them to search with­ out warrant and arrest with extended powers. This 'set up' is nonsense legislation: the police have more than sufficient powers to deal with people on premises they have suspicions about. It is window dressing and will have no impact on the level of drug offences.

The legislation is not designed to tackle the growing drug offence problem, but to provide political ammunition for the Labor government to show the community it is tough on law and order. It is a counter to anticipated political flack for the same government's repealing of the territory's notorious mandatory sentencing laws.

For too long, governments of all ilks have addressed drug use with prohibitive legislation, mainly via the criminal law. The day is dawning when governments will eventually acknowledge the ineffectiveness of this approach and deal with it as the social and health issue it really is. This NT Government has neither the vision nor courage to be the first.

John Lawrence

John Lawrence is a Northern Territory barrister.


Losers in no-win no-fees

A major scandal is erupting over plaintiff lawyer no-win, no-fee practices. At the heart of the allegations is the firm Baker Johnson.

According to allegations uncovered by the Courier-Mail and in part reflected in litigation by former clients, in some cases personal injury victims were startled to receive bills from their lawyer in excess of the settlement amount, and others received bills despite their claim being discontinued or lost. It is further alleged that the firm followed such bills with aggressive debt collection strategies (including threatening clients with bankruptcy), and that a clerk was held out to be a solicitor to both clients and the court. The firm denies acting fraudulently or deceitfully.

It would surprise 99% of clients to learn that their 'no-win, no-fee' arrangement could carry with it a

'you-lose, you pay' or a 'you-win, but you still may be out of pocket' implication. After all, as District Court Judge John McGill QC stated, the ordinary meaning of the concept is a pledge by the lawyer that the client will not have to pay any fees except out of what the lawyer can recover for the injury.

The Courier-Mail is pursuing this issue with front-page and editorial zeal, in part to keep the heat on the Law Society, with whom it has a history of recent conflict. The Attorney-General and retired Justice Bill Carter have weighed in heavily in the resulting debate over plaintiff lawyer practices, to the point that the Law Society, threatened with the loss of some of its self-regulatory powers, is appointing a former Supreme Court judge to conduct an inquiry. It is to be hoped that the inquiry will be fulsome, as it seems unlikely that such billing practices are limited to any one firm.

Without detracting from the very serious breaches of professional ethics and potentially the law implied by the allegations, it is curious that the issue is raised at the height of the debate about third party insurance. Juxtaposed beside it, the larger question of corporate largesse and mismanagement being revealed at the HIH insurance collapse inquiry is being sublimated by the Queensland media. Out of this furore, it is to be hoped that no-win, no-fees arrangements are strengthened rather than weakened, as they are a vital means of increasing access to justice in a system where injured plaintiffs are otherwise deterred by stringent loser-pays cost rules. • GO

South Australia

Amendment to self-defence laws

Proposed changes to the self-defence laws in South Australia will effectively take the objective element out of the equation. Currently, the law requires that the degree of force used when taking action in self-defence against home intruders must be reasonably proportionate in the circumstances. Under the new law, householders will be able 'to use such force as they genuinely believe is necessary to defend them­ selves and their family'. The Attorney General has said that juries have not been prepared to apply this test as it was intended, and that the amendment will bring the law into line with public values. In criticising the current law, he cast doubt on the ability of a judge, in determining the question of reasonableness, to really understand 'what it [is] like for the householder to have his or her home invaded in the middle of the night' (the Attorney General on Radio SAA, 16 May 2002).

Law Society President, Chris Kourakis QC, has rejected the suggestion that it is difficult for judges (or juries for that matter) to understand what it would be like to be the victim of a home intrusion. But in any event, he doubts the changes will make much practical difference. He believes that juries have probably been applying the law correctly and will always ask them­ selves the question of what they, in sim­ ilar circumstances, would have done. This tends to collapse the subjective and objective elements to some extent. If they believe the force was unreason­ able in the circumstances, jurors reject any claim that the accused genuinely believed it was necessary.

The problem, as always, is that amending the law in this way may lead people to believe they may take the law into their own hands when it comes to home invasion. The amendment will also result in inconsistency, as the new law will only apply to cases of self-defence in the home, and not, for example, to attacks in the street.

Uranium mining in SA to be regulated by the EPA

In recent months, a number of concerns have been raised in relation to the number of reported spills at the Beverley uranium mine (in the state's north). On some accounts, there have been 30 spills over the last four years. After reports of two spills occurring in less than a week, the government set up a task force to inspect the mining operations of Heathgate Resources at Beverley. Headed by the Executive Director of the Environmental Protection Authority (EPA), the inspection focused on operational procedures, workers' safety and potential and actual environmental harm.

The interim conclusions noted that a certain type of piping was linked to a number of previous spills, but also noted a total absence of 'secondary containment' and expressed concerns over the lack of a clear process for safely stockpiling and storing soil affected by radioactive spills. While the task force found no evidence of harm to workers or the surrounding environment from radiation, it recommended that incidents involving processing fluid spills be further considered by an independent review group that will report to the EPA. According to the Minister for Environment and Conservation, the task force's final recommendations were that 'changes be made in the areas of operational procedures, spill management and reporting, including increased involvement of the EPA in monitoring and evaluation' (Hansard, 16 May 2002). Regulatory powers in relation to mining operations currently reside primarily with the Ministry of Mineral Resources Development and the Department of Human Resources. However, the government recently announced that it would transfer the administration of the Radiation Protection and Control Act (insofar as it deals with radioactive waste regulation) to the EPA. The necessary amendments to the Environmental Protection Act are scheduled for later this year. The EPA will also carry out a general review of acid in situ leach uranium mining in the state.

Animal liberation SA versus Goliath

In December 2000 this column reported that Animal Liberation (through its officer Ralph Hahnheuser) was privately prosecuting a battery hen producer (Mr Bhupinder Singh Takhar of Farm Gate Eggs) pursuant to over­ crowding regulations under the Prevention of Cruelty to Animals Act. At that stage, Animal Liberation had subpoenaed documents from the RSPCA, in particular reports containing measurements of cages taken during an inspection of the accused's premises. The RSPCA initially declined to produce the documents, but subsequently agreed to do so.

The case was initially of interest in showing that somebody who was not an officer under the Prevention of Cruelty to Animals Act may be able to prosecute a case that the RSPCA declined to prosecute, and use evidence gathered by the RSPCA to do so. But the prosecution is being stymied because of the prosecutor's lack of financial means. After the matter was set for trial, the accused's lawyer applied for security for costs. The prosecution is for a strict liability offence, and Animal Liberation indicated that the case would involve no more than putting the RSPCA inspection reports into evidence, calling one witness and making a short submission. However, after hearing submissions from Mr Takhar's lawyer that the trial would take at least three days, the magistrate ordered that $15,000 be paid into Court. The matter has been adjourned to 3 September 2002. Animal Liberation is calling for donations to raise the $15,000.

Meanwhile, Mr Takhar has continued Supreme Court proceedings against Animal Liberation and Ralph Hahnheuser in relation to the late night raid on his premises conducted shortly prior to the instigation of the criminal proceedings. Initially, the Supreme Court action sought an injunction to prevent the publication of photographs and videotape of the premises. The injunction was not granted, but the writ was then amended to claim damages for trespass, interference with trade and business, and unconscionable conduct.

The plaintiff also sought an injunction against Animal Liberation in relation to a t-shirt it had produced. The back of the t-shirt contained information about the raid on the premises and the front displayed the words 'Unconscionable Conduct'. According to Animal Liberation, this was a play on Mr Takhar's allegations that the raid by Animal Liberation constituted unconscionable conduct. However, Mr Takhar's lawyers argued that the t-shirt implied that his keeping ofbattery hens constituted unconscionable conduct, and that the t-shirt contained injurious falsehoods about his business. The court refused injunctive relief, but the plaintiff is still pursuing damages for defamation, injurious falsehood and civil conspiracy in relation to the t-shirt. Animal Liberation is still selling the t-shirts, which are being worn by the self-represented defendants during court appearances.

Animal Liberation failed on an application to have the Supreme Court proceedings stayed until the criminal prosecution has been dealt with. Mr Takhar has initiated bankruptcy proceedings against Mr Hahnheuser for his failure to pay the costs awarded against him in relation to the application.

A tangled egg (err ... web) of litigation indeed. SH


Begging for change

The Scrutiny of Acts and Regulations Committee is preparing its final report in relation to the Vagrancy Act 1966 (Vic). The Act renders it an imprisonable offence to beg or gather alms, loiter, or be found in the company of 'reputed thieves'.

The purpose of the inquiry is to consider the content and relevance of the Act and, where necessary, make recommendations as to reform. The Committee received oral and written submissions from organisations including Victoria Legal Aid, Victoria Police, the Police Association, the Criminal Bar Association and the Homeless Persons' Legal Clinic run by the Public Interest Law Clearing House.

The Committee's initial recommendation that begging be decriminalised proved contentious. Senior Sergeant Mullett of the Police Association con­ tends that the offence of begging should be retained: 'With the Commonwealth Games not that far-away, we should be thinking proactively. It was a major problem during the Los Angeles Olympic Games. Victoria naturally will want to see itself as a showpiece from an international perspective. If you have a significant amount of beggars in and around the central business district, in particular, the necessary authority should be there from a preventative point of view. We don't want to be seen worldwide as a third world country.' The Association's submissions were supported by Victoria Police.

Conversely, Victoria Legal Aid, the Criminal Bar Association and the Homeless Persons' Legal Clinic advocated abolishing the offence of begging. Their submissions argued that begging is most often a manifestation of chronic poverty, need and disadvantage - a last resort activity usually engaged in for the purpose of income supplementation and the satisfaction of subsistence needs such as food, accommodation, health and addictions. This is supported by a recent study conducted by Hanover Welfare Services to investigate the nature and extent of begging in Melbourne. Of the people observed to be begging over a four-month period in 2000, the study revealed that: 93% were long-term unemployed; 71% were sleeping rough or in squats; 93% were receiving social security payments (although 28% of these had their payments reduced or terminated due to breaches); and 71% suffered from alcohol, substance or gambling addictions. The Homeless Persons' Legal Clinic contended that begging should be conceived of as a social and economic issue rather than a criminal activity. In particular, it submitted that responses to begging behaviours must account for inequality, address underlying causes and conditions, and promote human dignity and agency.

Victoria Legal Aid and the Home­ less Persons' Legal Clinic also recommended that if an offence of begging is to be retained, it should be limited to 'aggressive begging' only. This approach has been adopted in many jurisdictions in the United States and Canada, where courts have struck down ordinances proscribing begging on the basis that they violate fundamental human rights, including the right to life, liberty and security of person, the right to be free from cruel and unusual pun­ ishment, the right to equal protection and non-discrimination, and the right to freedom of expression.

The Committee's final report is due to be tabled in Parliament in September. • PL

Western Australia

Demise of the Unrepresented Criminal Appellant's Scheme

In this column in February 2000, we celebrated the instigation of a new initiative -the Unrepresented Criminal Appellant's Scheme (UCAS). All good things must come to an end, and as fate would have it, that includes UCAS.

The scheme, which commenced in March 2000 after two years of careful planning, provided for a coordinator and solicitor to supervise senior students at the Law School of the University of Western Australia (UWA) who interviewed unrepresented appellants, took instructions, gathered necessary materials such as transcripts, and undertook research in order to prepare draft grounds of appeal, outlines of sub­ missions and appeal books. This allowed unrepresented appellants, who invariably have limited access to legal resources when incarcerated, to efficiently navigate a series of preliminary court appearances. Solicitors who had responded to an open letter of invitation from the Chief Justice to the legal profession then argued the appeals on a pro bono basis.

The development of UCAS was a practical response to a constellation of problems that were rapidly manifesting themselves due to an increasing level of unrepresented appellants in the criminal appeal system (the number of in-person litigants in civil matters has also been increasing steadily, leading to calls for a civil assistance scheme). The principal problems were delay and waste of judicial time as unrepresented applicants attempted to formulate coherent grounds of appeal, settle sub­ missions and prepare appeal books. There was also a need to develop a response that was not inconsistent with the role and objectives of the Legal Aid Commission. Eligible applicants for the scheme had to exhaust all possible avenues of funding including all three levels of appeal to the Legal Aid Commission.

Against a background of cuts to legal aid and the increasing process of tendering legal aid work, it is surprising that the scheme has come to an end. Over 85 students participated in one of the few forensic units offered by the law school. They worked on 46 appeals and over 80 matters of minor assistance. Of those minor assistance matters, six further appeals were granted legal aid on advice given by UCAS and four of them succeeded. Approximately 30% of the appeals were ultimately successful in the CCA, raising questions about whether the process used by Legal Aid to assess which appeals to fund is predicated on merit or economics. As the same problems begin to manifest them­ selves yet again, we should ask why a scheme which appeared to successfully address the problems has been terminated and what, if anything, will take its place?

Any phoenixes rising from the ashes?

The Department of Justice recently reviewed the first year of operation of an Appellant Librarian Service, which provides access to legal materials for appellant prisoners. The monthly aver­ age of requests for materials is approximately 40. Two of the recommendations of the review are that the service should be continued and that further investigation should be conducted into adequate minimum provision of legal materials in WA prison libraries in accordance with international standards. There is also a need to extend electronic access to legal materials and to provide appropriate forms for initiating appeals and applications.

The service is a long way from replacing UCAS, whose strength was the unique collaboration of UWA, its students, the Department of Justice, the legal profession and the Supreme Court (although the Associates have begun to recycle photocopied cases by donating them to the Prison Librarian). Nor does it address the dilemma facing the Bench in striking a balance between impartiality and ensuring adherence to the principles of fairness, and the deeper social and natural justice issues raised by the potential denial of access to courts to people most in need. However, it is a positive initiative and it is hoped that the service secures the necessary funding to continue. • MH

DownUnderAllOver was compiled by Alt.LJ committee members Stephen Bouwhuis, Samantha He/sham, Megan Hoey, Philip Lynch, Graeme Orr and Jane Stratton together with invited writers listed under their items above.

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