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Tanner, Chantal --- "Would Constitutional Entrenchment of the Right to Legal Representation Result in a More Effective Realisation of Legal Aid?" [2016] UNSWLawJlStuS 1; (2016) UNSWLJ Student Series No 16-01


WOULD CONSTITUTIONAL ENTRENCHMENT OF THE RIGHT TO LEGAL REPRESENTATION RESULT IN A MORE EFFECTIVE REALISATION OF LEGAL AID?
CHANTAL TANNER
INTRODUCTION

Human rights discourse promulgates a popular notion that the constitutional entrenchment of rights has significant bearing upon a legal system’s capacity to protect such rights. A common sentiment that arises in the conversation about Australia’s human rights practices is that the country’s lack of constitutional guarantees is of serious detriment to effective rights protection. Yet, this increasing popularisation of the notion of constitutionally protected rights is largely unsubstantiated by scholarly interrogation of the extent to which a bill of rights could in fact impact upon the actualisation of protections in Australia. This essay looks at whether the entrenchment of an Australian bill of rights would be a significant determinative factor in achieving the effective realisation of rights. In particular, the paper focuses on the right to legal representation. The question at hand is whether the enactment of a constitutional right would enable more fertile grounds for the protection of the right to legal representation in Australia.

It is the position of this paper that a bill of rights would influence the agenda of rights protection in Australia. However, beyond these initial influences, the impact is substantially less than what popular rhetoric suggests. Contrasting the Australian approach with the international case studies of South Africa and Canada, demonstrates that whilst a bill of rights can change the moral tone of a country’s discourse about rights it cannot cure other significant and contributory challenges that impact effective rights protection. The paper argues that while the enactment of a right to legal representation may have one-time benefits in shifting the moral tone of a country’s approach to the right, it would not provide an ongoing guarantee that the right will be implemented. A constitutional right to legal representation could shift the principal rules to which the Australian legal system must adhere; but it could not ensure the enlivenment of necessary conditions for the realisation of effective legal aid.

The methodological approach of comparative legal analysis is used to consider these debates. Comparative legal analysis seeks to gain insight into the systems and structures of legal cultures by examining the relationships between legal practices and traditions.[1] Such comparisons must account for the interrelationships of substantive and procedural legal practices, which arise from differing constitutional approaches to rights protection.[2] The paper is divided into five parts. Part I addresses the prevailing debates about whether rights belong in the constitutional realm. Part II considers the philosophical underpinnings of the notion of the right to legal representation. Part III examines the differing approaches taken towards that right in South Africa, Canada and Australia. Part IV analyses two comparative case studies. The first case study compares the approaches taken by Canada and Australia in the provision of legal aid for their respective Indigenous populations. The second case study contrasts the right to legal aid in migration proceedings in South Africa and Australia. In light of these findings, part V of the paper will examine other supporting conditions- economic factors, constitutional character, political culture and social attitudes- which impact the realisation of legal aid. By evaluating the findings in these case studies, conclusions will be drawn about the effectiveness of differing constitutional approaches to the right to legal representation.

I DO RIGHTS BELONG IN THE CONSTITUTIONAL DOMAIN?

The constitutional domain serves a functional role as both the ‘creative source’ and the continuous ‘check-point’ over the exercise of government powers.[3] The primary purpose of a constitutional document is to institute governing frameworks by devising legal protections for the fundamental principles of a society.[4] The doctrines and mechanisms enshrined in a nation’s constitution often characterise the broader normative values that underpin a country’s legal system.[5] As such, the generalised constitutional approach that a country adopts toward rights bears upon the protection that a specific right is given.

In most contemporary legal systems a body of rights is enshrined in a country’s constitutional text.[6] When rights are organised in the form of a constitutional bill of rights (henceforth, ‘BOR’) a violation of these fundamental entitlements can be struck down by the highest court in the land.[7] Juristic philosopher Professor Ronald Dworkin explains the rationale for this model of rights protection, arguing that:

‘In a real democracy liberty and minorities have legal protection in the form of a written constitution that even parliament cannot change to suit its whim or policy. Under that vision of democracy, a bill of individual constitutional rights is part of fundamental law.’[8]

Yet the proposition that rights belong in the constitutional realm is by no means universally agreed upon. American legal scholar Cass Sunstein advocates that an expansive constitutional BOR actually threatens to weaken a legal system’s ability to protect rights. Sunstein proposes that:

‘There is a big difference between what a decent society should provide and what a good constitution should guarantee... If the constitution tries to specify everything to which a decent society commits itself, it threatens to become a mere piece of paper, worth nothing in the real world.’[9]

Australia is one of the only countries in the world that has abstained from enacting a nationalised BOR.[10] A strong anti-BOR sentiment is put forth in the national debate over whether Australia should have some form of BOR.[11] Justice Dawson captures this reasoning in his judicial statement that:

‘Those responsible for the drafting of the Constitution saw constitutional guarantees of freedoms as exhibiting a distrust of the democratic process. They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its power.’[12]

This is the crux of the argument advanced against a BOR. The key premise is that Australia’s existing constitution has the capacity to guarantee rights via the protection of democratic principles and the prevalent rights culture present in the country’s national psyche.[13] With such protections embedded in Australian society, an enshrined BOR would merely offer an illusionary protection for rights.[14] This is because the actualisation of rights is dependent upon societal factors that go beyond a country’s constitutional structures.[15] The themes explored by the essay are situated within this debate, with particular attention to the right to legal representation.

II THE RIGHT TO LEGAL REPRESENTATION

The right to legal representation is an entitlement to government funded legal counsel for a person lacking the financial means to obtain legal representation without publically funded assistance. This right is pivotal to the realisation of full and effective access to justice.[16] It is uncommon for a country’s legal structures to recognise a freestanding entitlement to publicly funded legal representation.[17] Rather, the right tends to be characterised as an element of an individual’s entitlement to a fair trial.[18] The basic argument in favour of a freestanding right to legal representation is that:

‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.’[19] [20]

This premise underpins the philosophy behind the notion of state funded legal representation. An integral component of effective access to justice is the guarantee that any potential litigants have an unfettered opportunity to bring their cases before the courts.[21] Notions of democracy and the doctrine of the rule of law necessitate a legal system capable of hearing the issues of society’s most vulnerable citizens. Thus, when an individual is forced to submit to legal processes in the absence of counsel, due to financial circumstances, this responsibility must be borne by the state. Debate remains as to whether this responsibility applies solely to criminal offences, where a person’s liberty is at stake, or whether the right should be applied broadly to include civil cases where ‘the interests of justice so require.’[22]

The Chairperson of the Canadian Bar Association's Access to Justice Committee, Melina Buckley, sets out a high-water mark description for an effective right to legal representation. Buckley argues that:

‘The objective ... would be to move away from a case-by-case approach and to obtain a systemic remedy. One possibility would be to seek... a judicial statement of principle recognising the right to legal representation where individuals, unable to retain counsel without undue hardship, are faced with a legal situation that jeopardises their or their families’ liberty, livelihood, health, safety, sustenance or shelter.’[23]

In essence, Buckley takes the position that an ideal realisation of the right to legal representation includes state funded representation for both criminal and civil matters.

The concept of equality in a court of law and meaningful access to justice are also normative principles embraced under international law. The International Covenant on Civil and Political Rights[24] explicitly sets out that a person charged with a criminal offence has a right to have legal assistance assigned to him/her, where an individual has insufficient means to pay for such assistance.[25] Other provisions in the Covenant are construed as providing a right to legal representation in civil cases.[26] The U.N. Human Rights Committee affirmed this interpretation of these provisions in General Comment 32.[27] Moreover, U.N. Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul recommends that the right to legal aid should be provided as a guarantee at the highest possible level within a national legal system. Knaul argues that, where possible, this right to legal representation should be guaranteed in a country’s constitution.[28] Despite the Special Rapporteur’s recommendation, there are a variety of cross-jurisdictional approaches to how countries construct their right to legal aid.

III COMPARATIVE APPROACHES TO THE RIGHT TO LEGAL REPRESENTATION

The question at hand is whether the enactment of an Australian constitutional protection for the right to legal representation would have an enabling effect in producing the conditions required for effective legal aid. In order to answer this question the paper will now consider the differing legal approaches to the right to legal representation found in the case study countries of South Africa and Canada. The principal Australian protections of the right will also be discussed.

South Africa: A Freestanding Constitutional Entitlement to Legal Representation

The post-apartheid South African Constitution[29] contains the most substantive BOR in the world. Unlike other bills of rights, the South African Constitution goes beyond the commonplace protections of first-generation civil and political rights by guaranteeing its citizenry second-generation social, cultural and economic rights.[30]

The South African BOR enshrines a freestanding entitlement to legal representation. Section 35(2)(c) sets out that every person detained by the law has the right to have a legal practitioner assigned at the state’s expense, failure to assign such representation would result in injustice.[31] Whilst this provision was certainly a theoretical victory for an indigent accused, in substance the meaning of the right still required construing by the country’s judiciary.[32]

This right[33] was examined by South Africa’s Constitutional Court in the case of S v Vermaas; S v Du Plessis.[34] The issue for determination was whether the expense arising from the right to legal representation was a burden to be borne by the state.[35] The court found that the right enlivened a positive duty upon the state to provide publically funded legal representation for an indigent accused. Nonetheless, neither financial nor administrative structures had been instituted to implement that provision.[36] The court concluded that without mechanisms of enforcement, the right to legal aid was ‘an empty gesture and makes a mockery of the Constitution.’[37] After the decision of S v Vermaas; S v Du Plessis independent Constitutional Commissions and statutory bodies[38] were established with the mandate of ensuring the realisation of rights designed to protect the rule of law[39], such as the right to legal counsel.

Canada: Constitutional Entitlement to Legal Representation on Arrest or Detention

Canada’s constitution has contained an entrenched Charter of Rights and Freedoms since 1982, which provides certain political and civil rights for all people within the Canadian borders.[40] Section 10(b) of the Charter provides that upon arrest or detention a person is entitled to retain and instruct legal representation without delay.

In the case of New Brunswick (Minister of Health & Community Services) v G. (J.)[41], the Supreme Court recognised a right to legal aid in contexts outside of a criminal offence. This means that in certain civil law matters the right to publically funded legal representation may apply. Additionally, the court stated that ‘the purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.’[42]

However, the right in s10(b) is limited and in some respects substantially constrained.[43] The courts have refrained from recognising s10(b) as a freestanding generalised entitlement to publicly funded legal assistance. Instead the right to state funded legal representation is construed on an ad hoc basis, when it is perceived to be required in specific circumstances. In each case a judge must weigh up whether legal representation is a requirement in order for a fair trial to be heard. To date, the mood of the courts has been one of exercised caution and avoidance of interfering with the government’s construction of how legal aid is to be administered under the Constitution.[44] The courts do exercise their discretion in enforcing individual cases that require legal aid. However, the right is generally thought to be ‘the exception rather than the norm.’[45]

Australia: Piecemeal Protections of the Right to Legal Representation

Australia has no nationalised BOR,[46] which does not mean that the country has no legalised rights protections.[47] Instead, the country adopts an ad-hoc approach by providing several disparate expressed constitutional rights[48] and a handful of common law inferred ‘silent constitutional principles’[49] (also known as implied constitutional rights).[50] [51]

As fore-mentioned, a common sentiment arising amongst political discourse in Australia is that the country’s lack of constitutional rights weighs heavily upon the legal system’s capacity to protect rights. Some believe that these constitutional deficits could be corrected by enacting a Commonwealth Human Rights Act.[52] But calls for either a legislative BOR or an expansion of constitutional guarantees are met with a fierce rhetoric of opposition.[53] In absence of either of these rights’ protection mechanisms, a frequent assertion is that the common law ‘plays a role as both a source and protector’ of rights.[54] The judiciary’s interpretative power can be used to constrain the legislator.[55] Further to this power is the common law presumption that the courts must exercise their discretion against the abrogation of fundamental rights.[56]

Whilst there is no constitutional guarantee of a right to legal representation, in Dietrich v The Queen[57] the Australian High Court acknowledged that the right to legal representation is a fundamental and necessary element in the right to a fair trial. However, the Court did not go so far as to institute an absolute right to publically funded legal representation.[58] Instead, the decision of the majority was that in matters of serious criminal offences a judge has authority to stay a proceeding, if a miscarriage of justice would otherwise ensue. This means that if a criminally accused is unrepresented at trial, a proceeding may be stayed until the accused obtains legal representation. The Dietrich bench was not unanimous in its decision. Justice Brennan’s dissenting argument was that this was an unwarranted attempt to institute a common law right to legal aid and an unjustified intrusion upon the authority of both the executive and the legislature.[59] In summation, Dietrich does provide some form of right to legal representation; however, it does not enliven a ‘quasi-constitutional right to state funded counsel.’[60]

IV DOES A CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION ENLIVEN A MORE EFFECTIVE LEGAL AID SYSTEM?

Canada and South Africa will now be considered in order to conduct a cross-country comparison with legal aid services in Australia. Both case studies focus on particularly vulnerable groups, who struggle to gain meaningful access to counsel. The first case study considers Canada’s approach to legal aid for Indigenous groups. The second case study looks at access to legal aid for refugee and migrants in migration proceedings in South Africa. These case studies are used to comment on the effectiveness of differing approaches to the right to legal representation.

Case Study One:

Examining the right to legal representation for Indigenous groups in Canada & Australia

Canada and Australia have a comparable history of colonisation. As a result of this systemic legacy both Indigenous populations face similar issues in the contemporary context.[61] Indigenous groups are often in the highest needs group of any society, as such, they frequently suffer the adverse impacts of an inability to access legal representation.

Canada’s Constitution Act (1867)[62] established that the criminal justice system is a matter of shared responsibility. This means that provincial and territorial governments are responsible for the administration of justice.[63] Each territory and province operates it’s own legal aid plan, producing a variety of different approaches to legal services and initiatives for Indigenous groups.[64] In the provinces, the delivery of criminal legal aid is partially funded by direct federal contribution agreements, whilst financial support for civil legal aid is primarily administered through the Canada Social Transfer.[65] In the territories, the Department of Justice finances the delivery of both criminal and civil legal aid through the Access to Justice Services Agreements (AJAs).[66]

Canada does not have a formal government-funded network of Aboriginal legal services.[67] Instead of Aboriginal specific legal services, the Canadian government has instituted a National Aboriginal Courtwork Program from within legal aid, which is funded through contribution agreements made by the federal government to participating provincial governments. This program operates in most provinces and territories and provides over 180 courtworkers to support approximately 60,000 Aboriginal clients per year.[68]

In the Northwest Territories of Canada, the Aboriginal population make up 48% of the demographic. Outside of the main city of Yellowknife, the territories are composed of 31 remote communities, 28 of which are predominantly Aboriginal towns.[69] Due to the high proportion of First Nation communities in the Northwest Territories, AJA funding is intended to address culturally sensitive issues in the delivery of justice services.[70] The Northwest Territories’ Legal Services Board is responsible for providing legal aid services throughout the region. The Board runs three legal aid clinics and provides representation for criminal and family law matters. Civil law services are provided on a discretionary basis.[71]

Despite the fact that almost half the population serviced by the Legal Services Board are Indigenous, the 2012/13 Annual Report provided no information about Aboriginal-specific legal initiatives.[72] Previous data had suggested that approximately 75% of all criminal cases heard in the territories were represented by legal aid, whilst, on average 61% of all applications for civil legal aid were denied by the Legal Services Board.[73] The Erving Canadian Legal Aid Research Series concluded that there was an overwhelming consensus that the Northern Territories’ legal aid suffered from a drastic shortage of lawyers. The Report stressed that this finding has a particularly server impact on Indigenous people in the region, who form the majority of the population serviced by the Board.[74]

In Australia Indigenous people also remain the most socially and economically disadvantaged group in the country.[75] The incarceration rate of Indigenous Australians is 14 times higher then that of non-Indigenous Australians.[76] Research from the National Pro Bono Resource Centre indicates that they face serious barriers to seeking legal assistance from mainstream sources.[77] Due to these barriers the Federal Government funds specialised Indigenous legal services.[78] The Commonwealth provides these specialised legal aid services via the Legal Aid for Indigenous Australians (LEGA) program, which contracts out to a network of eight Legal Aid Providers throughout the country.[79] The Commonwealth Attorney General’s office Annual Report reported that for 2013/14 the total funding for these programs was $68.2 million. [80] This funding provided for an estimated estimating 25,000 duty solicitors and 87,000 cases conducted for that year.[81]

The LEGA program is charged with a vast and overwhelming task, which must be conducted with minimal budgetary provision. Data gathered by the National Aboriginal and Torres Strait Islander Social Survey indicated that an average of 20% of all Indigenous people reported having used legal services within a 12 months period.[82] Yet the need is still much higher. A survey of prisoners conducted by the Office of Evaluation and Audit in 2003 concluded that an overwhelming majority, 83%, of Indigenous prisoners did not have legal representation or advice at the time of their police interrogation or arrest.[83] The issue of underrepresentation is reflected in the finding that 97% of lawyers from the Queensland Aboriginal and Torres Strait Islander Legal Services indicated that a ‘lack of funding, lack of resources, staff shortages and work overload’ was the cause for such deficits in available representation. This response is vastly contrasted with the 5% of mainstream Legal Aid lawyers who identified a lack of funding as a major impediment to their work.[84]

Yet, when contrasting Australia and Canada’s legal aid provision for Indigenous groups, Australia does not fare so badly. According to Canada’s 2011 census there are 1,400,685 Indigenous people, making up 4.3% of the country’s population.[85] Also in 2011, the Australian Bureau of Statistics estimated that there are 670,000 Aboriginal Australians, which makes up 3% of the national population.[86] Thus, Indigenous groups make up a similar proportion of the population in both countries. It is estimated that the Canadian National Aboriginal Courtwork Program services 60,000 Aboriginal clients per year[87] meanwhile Australians LEGA programs are conducting 87,000 cases per year. [88] As well as this larger representation of cases, Australia also provides Indigenous specific legal service providers, whilst Canada only offers a coursework program within the existing framework of legal aid. Based on the factors demonstrated here a strong argument can be that Australia provides more effective legal aid infrastructure for the country’s indigenous population.

Case Study Two:

Examining the right to legal representation for Refugees in Migration Proceedings in South Africa & Australia

Governments have the authority to exercise control over their sovereign borders.[89] However, this authority is coupled with certain international obligations regarding refugees and migrants. Refugees fall within a uniquely vulnerable category of people in their need for legal aid assistance. The ‘essential safeguards’ drafted by the UNHCR, state that ‘asylum seekers are often unable to articulate the elements relevant to an asylum claim without the assistance of a qualified counsellor because they are not familiar with the precise grounds for the recognition of refugee status and the legal system of a foreign country.’[90]

At the end of Apartheid, with the country’s newfound role in the region, the South African government struggled to find an appropriate policy to deal with inter-African migration.[91] Between 1994 and 2008, South Africa deported 1.7 million undocumented migrants. This system of deportation was heavily criticised by Human Rights organisations, particularly due to the methods of detention and removal deployed against these immigrants.[92] Indeed, there is a growing consensus that in spite of South Africa’s progressive BOR, there is a widespread intolerance and public hostility towards migrants. As such, few constraints have been exercised over State agents policing immigration.[93] In this climate of public hostility, it has been immensely difficult for migration advocates to effectively protect rights.[94]

From 1994- 2000 applicants seeking refugee status were denied the right to legal representation for their hearings (even in instances where representation could be provided at their own expense).[95] This policy was dissolved by the Regulations published on 6 April 2000, which instituted a right for asylum seeking applicants to be represented by legal counsel.[96] Theoretically, this change has meant that Legal Aid South Africa is mandated to provide legal assistance for non-citizens seeking asylum. However, legal aid is still unavailable to non-citizens in civil cases.[97]

The largest legal service providers in South Africa offering free legal services for asylum seekers, refugees and migrants are Lawyers for Human Rights (LHR).[98] LHR is a non-profit organisation that is partially funded by the South African Legal Aid Board.[99] The LHR’s Refugee and Migrant Rights Programme (RMRP) consists of eight lawyers.[100] In 2012, the RMRP serviced 5,829 immigration matters, 113 people being held in immigration detention and 736 stateless people. This means that in total LHR was able to assist 6,678 people.[101]

According to UNHCR data, in 2012 85,000 refugees and asylum seekers arrived in South Africa. This number fell dramatically from three years prior (in 2009) when 341,000 refugees and asylum seekers arrived in South Africa.[102] Even with this decline in arrivals over this period, LHR, the largest legal aid service provider for migrants in South Africa, only had the capacity to service 7.86% of all refugees and migrants that arrived in the country in 2012.

The Australian legal system provides no right to legal representation in civil justice matters. This may be said to have a particularly detrimental impact for asylum seekers seeking refugee protections in Australia. Currently, there are an estimated 30,000 asylum seekers waiting to apply for protection in Australia.[103] The vast majority of these people lack the financial resource to pay for legal representation. Thus the demand for legal aid services for refugees is high.[104]

Historically, the Australian government has provided funding to assist asylum seekers with their application process for protection, enabling them to effectively present their refugee claims.[105] Since 1997, the Immigration Advice and Assistance Scheme (IAAAS) has been responsible for administering government-funded legal services.[106] Under the IAAAS model asylum seekers have had access to legal aid during the departmental phase of their migration proceedings. The scheme provides a modest amount of government funding for lawyers who assist people in preparing their legal claims for protection under the Refugee Convention in Australia.[107]

However, the current Federal Government has withdrawn all funding for the IAAAS.[108] This means that people seeking asylum in Australia no longer have an entitlement to any form of legal aid assistance.[109] Phil Glendenning, the President of the Refugee Council of Australia argues that the defunding of refugee legal aid will result in a ‘survival of the fittest scenario in which some of the most vulnerable and disadvantaged asylum seekers- including people with limited education, on low incomes and suffering from serious mental health impacts of torture and trauma- will be most at risk.’[110] As well as refugee advocates, the Law Council of Australia has expressed condemnation of the Abbott government’s decision to cease funding for legal aid during migrant proceedings.[111]

Both South Africa and Australia fare poorly in providing legal aid assistance for asylum seekers and refugee involved in migration proceedings. Whilst the rhetoric of South Africa’s legal system provides strong assurances of such aid, in reality factors such as public intolerance, xenophobia and hostility towards migrants impact upon the realisation of legal aid for refugees. In Australia there is neither a constitutional nor a common law commitment to providing legal assistance to refugees. The current Australian government’s defunding of the IAAAS reflects how this issue can hinge upon the political tides within the country. In essence, the result in both countries is somewhat similar, with a failure of the realisation of legal aid for these particularly vulnerable groups of people.

V OTHER RELEVANT SUPPORTING CONDITIONS IMPACTING UPON EFFECTIVE LEGAL AID

The key observation that can be drawn from these case studies is that whilst there is symbolic merit to enshrining a constitutional guarantee to the right to legal representation, in reality, such a guarantee has limited impact on enlivening the right itself. A constitutional right to legal representation is relevant to the rhetoric around a country’s commitment to legal aid but has little impact upon the effectiveness of that country’s legal aid system.

South Africa, Canada and Australia each take differing constitutional approaches to the right to legal representation. Nevertheless, none of these differing approaches play a determinative role in the effectiveness of the country’s legal aid services. However, Ran Hirschl cautions that the selection of cases in comparative legal studies frequently lack a nuanced emphasis on the contextual elements that actually produce similar or differing practices and interpretations of constitutional norms.[112] Thus, the question arises, if a constitutional right is not an absolute insurance that a country will be able to provide effective legal aid services, then what other contributory contextual elements impact the realisation of the right?

Economic Resource

One significant issue that impacts the realisation of effective legal aid services is the state of a country’s economy. Any constitutional provision guaranteeing a right to legal representation is of little avail if a government does not have the financial capability to provide sufficient funding to legal aid.

According the 2013 World Bank’s GDP index of countries, Canada and Australia ranked eleventh and twelfth place respectively.[113] This means that Canada and Australia are placed as two of the wealthiest countries in the world. By way of contrast, South Africa is positioned almost twenty places below this on the World Bank’s list. It ranks as thirty-third wealthiest country in the world.[114] Drawing on this it is evident that the governments of both Canada and Australia are in a substantially better economic position to provide funding resources for their country’s legal aid.

Given the economic disadvantages of the South African economy, it is of little surprise that arguments are frequently raised that South African ‘legal aid is underfunded, overworked and unable to keep up with demand.’[115] The budget for Legal Aid South Africa in the financial year of 2012/13 was an estimated ZAR 1.4 Billion.[116]

In Australia, the Commonwealth government provides just 35% of the total budget for the country’s legal aid (with each State and Territory providing the remaining 75% of funding). In the financial year of 2012/13 the Commonwealth government provided roughly AUD 200 Million.[117] The amount of money provided by the federal government, in a mere 35% contribution to Australia’s legal aid, is of equivalent value to the entire budget of South African Legal Aid for the same financial year.[118]

The Canadian government also has a cost-shared agreement with the Provinces and Territories, providing annual contributions to the funding and delivery of legal aid services.[119] In 2011/12 the Canadian government provided just over CAN 200 Million towards the country’s legal aid system.[120] This contribution of the Canadian Federal Government alone equates to a sum of approximately ZAR 1.9 Billion. Without factoring in the contributions of either the Provincial and Territorial governments, Federal funding alone for Canadian legal aid services for 2011/12 was ZAR 5 Million more then South Africa’s entire legal aid budget for 2012/13.

In considering the budgetary comparisons from the countries examined in the case studies, it is evident that whilst South Africa may have the highest level of entrenchment for the right to legal representation, this does not equate to a guarantee that the country has the economic ability to effectively enliven the right. The constitutional commitment does demonstrate the moral sentiment of the country’s attitude towards the right. However, the economic resource of a country is an essential factor in its ability to enact an effective legal aid system.

Constitutional Character

Another significant factor that contributes to the realisation of a right is the character of a country’s constitution. Constitutional character impacts upon the judicial approach that a country’s courts are likely to take in their interpretation of certain rights. Lawrence Lessig proposes that there are two distinctive constitutional breeds—the preservative constitution and the transformative constitution.[121] Lessig’s distinctive constitutional archetypes are an informative framework of categorisation to consider the differing manners of protection for the right to legal representation.

According to Lessig’s hypothesis, transformative constitutionalism considers the enactment, interpretation and enforcement of a constitution to be an ongoing project. This project seeks to shift a country’s socio-political dynamic towards institutions that promulgate the realisation of ‘the social good’. At heart, the objective of the transformative constitution model is to design an enterprise upon which large-scale social change is induced as the byproduct of nonviolent political process based within the law.[122] By way of contrast a preservative constitution protects and conserves long established legal practices that may be threatened by momentary passions, producing ill-measured systemic shifts. Preservative constitutionalism seeks to mitigate the effects of faddishness in constitutional thinking. It urges an approach to legal norms that remains deeply rooted in stable tradition.[123]

Amongst the modern legal landscape, the South African Constitution represents the quintessential transformative constitution. The South African Constitution was used as a key instrument in the process of transitioning the country from apartheid rule to democracy. The final constitutional document was adopted in 1996, after two years of drafting, negotiation and consultation between the organisations that had struggled for liberation and existing political power brokers.[124] Indeed, the agenda for the country’s constitutional text was defined from the outset as a mechanism for national transformation, which would lay ‘the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.’[125]

The transformative vision was to create a document, which could shift the political structures of the country away from a rigidly controlled minority lead apartheid regime of governance to an inclusive democratic realisation of constitutional dispensation.[126] The Constitutional Court of South Africa has made judicial statements that the BOR is designed to be both a symbolic and functional manifestation of this commitment ‘to the attainment of social justice and the improvement of the quality of life for everyone.’[127] The transformative character of the constitution translated to an affirmative attitude towards judicial activism in its decision- making towards rights.

A classic example of the thinking of preservative constitutionalism is found in the Canadian Constitution. Canada’s constitution is known to be one of the oldest operating constitutions in existence. The bedrock from which the Constitutional Act 1986[128] is drawn, is a collection of written documents and unwritten customs, inherited from both the French and the British traditions.[129] True to it’s preservative nature the British Crown remains situated as the source of authority in the country’s constitutional text. Yet, in reality, the Crown has been relieved from governing directly and continues to function merely as a representation of ‘the state, while protecting the delicate balance of power that has developed in the constitution over the centuries.’[130] This emphasis on a constitutional design that seeks to serve the status quo is reflected in the reluctance of the Canadian courts in taking an activist approach towards the right to legal aid.

The Australian Constitution emulates a similar design to that of the Canadian Constitution. Not borne into a backdrop of civil unrest or revolutionary overthrow, the constitutional drafters simply sought to reaffirm the pre-existing legal order.[131] Indeed, the prime concern of the Australian Constitution was to institute an appropriate financial arrangement between the colonies.[132] In essence, this document acts as a symbolic façade by affirming the dominant power structures in existence at the time of drafting.[133] The themes that emerged from within the Australian constitution reflected a deep faith in democratic processes, a keen deference to the legal structures of the British Empire and reliance on the principles of responsible government. Lord Haldane introduced the Australian Constitution for enactment by emphasising the centrality of these sentiments. He stated that:

‘[t]his bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, and which pertains to every Constitution established within the Empire.’[134]

This reliance on the ‘spirit’ of long standing legal institutions and norms reflects the ideas of preservative constitutionalism. Similar to the Canadian courts, this preservative attitude is present in the Dietrich decision, which was highly reluctant to go so far as to create a generalised common law right to legal aid.

These differing constitutional agendas found in preservative and transformative constitutions have important implications on the way that the courts interpret and enforce the right to legal representation. The differing judicial approaches taken by the three countries in interpreting a right to legal representation are a byproduct of the constitutional character of each country.

Whether a country’s constitution is transformative or preservative can be an enabling or constraining factor on the court’s decision-making capacity in protecting rights.

Political Climate & Societal Attitudes

Another set of factors that the case studies reveal to have a role in the realisation of the right to legal representation are political climate and social attitudes that are prevalent within a country. The case studies demonstrate that a government’s agenda and political-will play a critical role in the way that legal aid is funded and distributed. Factors such as political inertia and societal attitudes can be serious impediments to the realisation of a particular right, even when protected by a country’s constitution.

In respect of the right to legal representation, South Africa’s former Minister of Justice and Constitutional Development, Jeff Thamsanqa Radebe, claims that in the past decade South African legal aid ‘has been revamped and molded into one of the best legal aid systems in the world.’[135] However, many examine the contemporary state of South African legal aid with a more critical eye. It is argued that there is an ongoing and tangible discrepancy between the constitutionally guaranteed right to legal representation, in particular with regards to civil justice matters, and the political realities within the country.[136] Even with the progressive guarantees enlivened by the constitution, immigrants and refugees attempting to convert this right into a reality face paralysing obstacles.[137] This area of legal aid is chronically under- resourced and xenophobia is a continued impediment for migrants attempting to access their rights.[138] The case study of South Africa illustrates how a constitutional right is not a strong enough guarantee if the political culture and social attitudes of the country do not support the effective implementation of the right.

As discussed, the Canadian Charter provides a right to legal representation, yet the case study demonstrates that this right is poorly implemented for Canada’s Indigenous people. Canadian political and legal instructions have been described as playing ‘an active role in the destruction, denial or limitation of First Nations cultural practices.’[139] The repercussions of these policies of assimilation continue to present barriers to accessing justice for Aboriginal people. Persistent systemic and societal racism[140] as well as socio-legal-cultural incompatibility[141] are also contributory factors. This continued legacy of the colonial experience means that Canada’s Aboriginal populations are still disproportionately enmeshed in the legal system.[142] It is the argument of Chief Shining Turtle for the White River First Nation that the Indigenous people of Canada ‘are experiencing a slow motion march towards second-class citizenship.’[143] He believes that this is caused by social discrimination and the ongoing failure of federal bureaucrats to provide funding for social services for Indigenous communities.[144] These political and social attitudes continue to effect access to legal representation for the Indigenous people of Canada, irrespective of the right guaranteed in the country’s constitution.

Political climate and social attitudes are also apparent elements in the Australian approach to legal aid. The abolition of IAAAS is a clear illustration of such influences. Defunding legal aid for refugees is a strategic element in the current government’s policy of deterrence against people attempting to seek asylum in Australia. Refugee advocates argue that the policy is specifically designed as a punitive measure towards asylum seekers.[145] This move is fundamentally undermining the integrity of principles of access to justice. Without the assistance of a lawyer, it is unlikely that asylum seekers will be able to navigate Australian migration proceedings in a manner that would allow them to put forth an effective claim for protection.[146] This is a politically motivated move on the part of the federal Government, as deterrence of asylum seekers is central to its current political agenda.

CONCLUSION

The theme that arises from the analysis in this paper is that no definitive correlation can be drawn between a constitutional guarantee of the right to legal representation and the effective execution of a country’s legal aid system. Under the existing Australian legal structures, if they so willed, the High Court of Australia does have the ability to institute a more substantive common law right to legal aid, through the expansion of a Dietrich style principle. Moreover, the international case studies examined in the paper illustrate that even a concrete constitutional guarantee of the right to legal representation cannot ensure the enlivenment of effective legal aid. But it is also important to note that the outcomes observed in other countries cannot be viewed as an absolute prediction of what would happen if Australia were to institute a BOR. This is because there are serious limitations to the predictive assumptions that can be drawn out of cross-jurisdictional comparisons.

The paper has interrogated the popular fiction, frequently advanced by human rights commentators, that the constitutional entrenchment of rights is the determinative factor in a legal system’s capacity to protect rights. The lesson arising from this paper is that there is an essential link between the protection of rights that are afforded in a country’s constitutional system and the supporting conditions necessary for the enforcement of those rights.

Constitutional rights protections are one piece of the puzzle. But they must be constructed within a broader human rights project. This can only be achieved when it attributes the relevant weight to other significant factors within a society.

Whilst the rhetorical value of a BOR remains paramount, the actualisation of such rights is dependent upon other societal factors, which go beyond the country’s constitutional sentiments. The implementation of an Australian BOR would indeed have significant symbolic merit, by influencing the agenda of rights protection and shifting the moral tone in the country’s approach to rights. But it is unlikely that it could provide an ongoing assurance of the implementation of a right to a publically funded service, such as legal aid. In order for such a guarantee to come to fruition, other supporting conditions must also be in place.

Australia’s economic resources, constitutional character, political climate and societal attitudes are such contributory factors that have an important role to play in the realisation of the right to legal representation.


[1] Colin Picker, ‘Comparative Law & Methodology’ (Speech delivered at the University of New South Wales, 11 March 2014) 4.

[2] John C. Reitz, ‘SYMPOSIUM; How to Do Comparative Law’ (1998) 46 The American Journal of Comparative Law, 62.

[3] Tom Ginsburg and Rosalind Dixon, ‘Introduction’ in Tom Ginsburg & Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011), 4.

[4] Cheryl Saunders, It’s Your Constitution: Governing Australia Today (The Federation Press, 2nd ed, 2003), 185.

[5] Stephen Gardbaum, ‘The structure & scope of constitutional rights’, in Tom Ginsburg & Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011), 164.

[6] George Williams, Sean Brennan and Andrew Lynch, Australian Constitutional Law & Theory (The Federation Press, 6th ed, 2014), 1136.

[7] Geoffrey Robertson, The Statute of Liberty: How Australians can take back their rights (Vintage Books, 2009), 43.

[8] Ronald Dworkin, A Bill of Rights for Britain (Chatto & Windus, 1990), 13.

[9] Cass Sunstein, ‘Against Positive Rights’ (1993) 2 Eastern European Constitutional Review, 36.

[10] Chief Justice RS French AC, ‘Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons’ (Paper presented at Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association, London, 5 July 2012), 6.

[11] For further discussion of this opposition, see Robertson, above n 7, 7- 12.

[12] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 186.

[13] Robertson, above n 7, 4.

[14] Bernice Carrick, ‘Freedom on the Wallaby: A Comparison of Arguments in the Australian Bill of Rights Debate’ (2010) 1 The Western Australian Jurist, 68.

[15] Charles R Epp, ‘Do Bills of Rights Matter? The Canadian Charter of Rights & Freedoms’ (Dec 1996) 90(4) The American Political Science Review, 765.

[16] See ‘Figure 1- Fundamental Elements of Access to Justice’ United Nations Development Programme, Practice Note- Access to Justice, 9 March 2004, 6.

[17] Melina Buckley, ‘The Challenge of Litigating the Rights to Poor People: the Right to Legal Aid as Test Case’, in Margot Young, Susan Boyd, Gwen Brodsky & Shelagh Day (eds), Poverty, Rights, Social Citizenship & Legal Activism (UBC Press, 2007), 350.

[18] United Nations Office of the High Commissioner for Human Rights, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, UN HRC, 23rd sess, A/HRC/23/43 (15 March 2013).

[19] Powell v Alabama (1932) U.S. 45, 68-69

[20] English Lord Chief Justice Hewart expressed similar sentiments, arguing that: [It is of] ‘fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ R v Sussex Justices, Ex Parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233

[21] Legal Aid Board, ‘Access to Justice in South Africa: A combined EFFORT Required’ (Paper presented at Iilace 10th Anniversary Conference, October 2008), 2.

[22] Columbia Law School Human Rights Clinic, Access To Justice: Ensuring Meaningful Access to Counsel in Civil Cases-Response to the Fourth Periodic Report of the United States to the United Nations Human Rights Committee, (August 2013), 1.

[23] Buckley, above n 16, 350.

[24] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, GA resolution 2200A (XXI) (entered into force 23 March 1976).

[25] Ibid, Article 14 (3)(d)

[26] Article 2 sets out a right of an effective remedy, Article 26 ensures the principles of non-discrimination and Article 14 provides a generalized guarantee of procedural fairness. Ibid.

[27] Human Rights Committee, General Comment No 32: Article 14: Right to equality before courts and tribunals and to a fair trial, 19th sess, UN Doc. CCPR/C/GC/32 (23 August 2007).

[28] United Nations Office of the High Commissioner for Human Rights, above n 17, 92.

[29] Constitution of the Republic of South Africa 1996 (South Africa).

[30] Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press, 2008), ix.

[31] Constitution of the Republic of South Africa 1996 (South Africa), 32(2)(c).

[32] JL Huber, ‘Notes- Legal Representation for Indigent Criminal Defendant in South Africa: Possibilities Under the 1994 Constitution(1995) 5 Duke Journal of Comparative & International Law, 426.

[33] This original version of the right legal representation was located in s25(3)(e) of the 1993 Interim Constitution, which uses the same words as the final Constitutional document adopted in 1996.

[34] (CCT1/94, CCT2/94) [1995] ZACC 5.

[35] S v Vermaas; S v Du Plessis CCT1/94, CCT2/94) [1995] ZACC 5, at 15.

[36] This case was litigated in 1994 when the interim Constitution had been in place for one year.

[37] S v Vermaas; S v Du Plessis CCT1/94, CCT2/94) [1995] ZACC 5, at 16.

[38] Such as the South African Human Rights Commission and the Public Protector.

[39] Honourable Jeff Thamsanqa Radebe, ‘Some perspectives on the Rule of Law and Legal Aid –the South African Experience’ (Speech delivered at the Occasion of the meeting with Ambassadors of the United Nations Member States, 19 July 2012), 1.

[40] Canadian Charter of Rights & Freedoms, Part 1 of the Constitutional Act 1982 (United Kingdom).

[41] [1999] 3 S.C.R. 46.

[42] R v Manninen [1987] 1 S.C.R. 1233.

[43] For instance in the case of R v Prosper [1994] 3 S.C.R. 236, the Court determined that the Charter does not institute a constitutional obligation, which requires a duty solicitor to be available for immediate and free legal advice upon arrest or detention.

[44] Buckley, above n 16, 340.

[45] Ibid.

[46] Chief Justice RS French AC, above n 10, 6.

[47] George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013), xxx.

[48] Commonwealth of Australia Constitution Act 1900 (Imp). These express rights include freedom of religion (s116), free interstate Trade and Commerce (s92), freedom from discrimination based on State of residency (s117), a right to acquire property on just terms (s51(xxxi)) and a right to trial by jury (s80).

[49] As per Justice Murphy in Silery v R [1981] HCA 34; [1981] 180 CLR 353 at 13.

[50] The presence of implied rights was first determined in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

[51] Nick O’Neill, Simon Rice & Roger Douglas, ‘Implied Constitutional Rights’, in Retreat from Injustice: Human Rights Law in Australia (The Federation Press, 2nd ed, 2004), 95- 101.

[52] National Human Rights Consultation Committee, National Human Rights Consultation Report (September 2009), Recommendation 18, xxxiv.

[53] Jonathon Pearlman, ‘Call for Rights Act Sparks Fierce Debate’, Sydney Morning Herald (online), 9 October 2009 <http://www.canberralawyers.com.au/act-lawyers-articles/2009/10/9/call-for-rights-act-sparks-fierce-debate/>.

[54] Nick O’Neill, Simon Rice & Roger Douglas, ‘The Common Law & Human Rights’ in Retreat from Injustice: Human Rights Law in Australia (The Federation Press, 2nd ed, 2004), 114.

[55] As per Vice-Chancellor Robert Edgar Megarry in Malone v Metropolitan Police Commissioner [1979] Ch 344, 372.

[56] Coco v R [1994] HCA 15; (1994) 179 CLR 427, 437.

[57] 117 CLR 292.

[58] Deitrich v R (1992) 117 CLR 292, 30.

[59] Chief Justice David Malcom, ‘Does Australia Need a Bill of Rights?’ (Speech delivered at the Amnesty International Como Group, 16 July 1998).

[60] Paul Ames Fairall, ‘Trial Without Counsel: Dietrich v the Queen’ (1992) 4(2) Bond Law Review, 239.

[61] Larissa Behrendt, The Protection of Indigenous Rights: Contemporary Canadian Comparisons, Research Paper 27 Law and Digest Group, Parliament of Australia (27 June 2000).

[62] The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3.

[63] Department of Justice Canada, Legal Aid Program (12 February 2014) <http://www.justice.gc.ca/eng/fund-fina/gov-gouv/aid- aide.html> .

[64] Chris Cunneen and Melanie Schwartz, The Family and Civil Law Needs of Aboriginal People In New South Wales: Final Report, commissioned by Legal Aid NSW (December 2008), 131.

[65] See footnote 5 of the Department of Justice Canada, Access to Justice Services Agreements Evaluations Final Report, Evaluation Division Office of Strategic Planning and Performance Management (October 2012).

[66] Ibid, 1.

[67] Cunneen and Schwartz, above n 63, 132.

[68] Department of Justice Canada, Access to Justice Services Agreements (AJA) (30 March 2013) <http://www.justice.gc.ca/eng/fund-fina/gov-gouv/access.html> .

[69] Legal Aid Courtworker & Public Legal Education & Information needs in the Northwest Territories: Final Report, Erving Canadians Legal Aid Research Series (2002), v.

[70] Department of Justice Canada, above n 64.

[71] Cunneen and Schwartz, above n 63,139.

[72] Northwest Territories Legal Services Board, 2012/13 Annual Report of the Legal Services Board, (2013).

[73] Legal Aid Courtworker & Public Legal Education & Information needs in the Northwest Territories: Final Report, above n 68, v.

[74] Ibid, x.

[75] Law & Justice Foundation of New South Wales, Legal needs of Indigenous people in Australia, Updating Justice, No. 25, ISSN 2201-0823 (May 2013).

[76] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage Key Indicators 2011, Productivity Commission, Canberra (2011).

[77] Legal & Constitutional Affairs References Committee, Access to Justice, Senate Commonwealth of Australia (December 2009), 137.

[78] Office of Evaluation & Audit (Indigenous Programs), Evaluation of the Legal Aid for Indigenous Australians Program, Australian Government Department of Finance & Deregulation, (July 2008), 12.

[79] Legal & Constitutional Affairs References Committee, above n 76, 4.

[80] Attorney General’s Department, Annual Report 2012/ 13, Australian Government, (2013), 56.

[81] Ibid, 56.

[82] Chris Cunneen and Melanie Schwartz, Submission to the Senate Legal & Constitutional Affairs Committee Inquiry into Access to Justice, UNSW Law Faculty, (15 September 2009), 4.

[83] Ibid, 11.

[84] Ibid.

[85] Department of Justice Canada, 2011 National Household Survey: Aboriginal Peoples in Canada: First Nations People, Metis & Inuit (8 May 2013) <http://www.statcan.gc.ca/daily-quotidien/130508/dq130508a-eng.htm?HPA> .

[86] Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2011 (30 August 2013) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/3238.0.55.001>

[87] Department of Justice Canada, Access to Justice Services Agreements (AJA), above n 67.

[88] Ibid.

[89] Amnesty International Research Report, USA: Jailed Without Justice, (25 March 2009) <http://www.amnestyusa.org/research/reports/usa-jailed-without-justice?page=show> .

[90] UNHCR, Fair and Efficient Asylum Procedure: A Non-Exhaustive Overview of Applicable International Standards (2 September 2005) <http://www.refworld.org/pdfid/432ae9204.pdf>.

[91] Jonathan Crush, ‘South Africa: Policy in the Face of Xenophobia’, Migration Policy Institute, (28 July 2008) <http://www.migrationpolicy.org/article/south-africa-policy-face-xenophobia>.

[92] Ibid.

[93] Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren, ‘Conclusion’ in Jeff Handmaker, Lee Anne de la Hunt, Jonathan Klaaren (eds), Advancing Refugee Protection in South Africa (Berghahn Books, 2013), 285.

[94] Jonathan Crush, ‘The Dark Side of Democracy: Migration, Xenophobia and Human Rights in South Africa’ (2002) 38(2) International Migration, 105.

[95] Jonathan Klaaren & Chris Springman, ‘Refugee Status Determination Procedure in South Africa’ in Jeff Handmaker, Lee Anne de la Hunt, Jonathan Klaaren (eds), Advancing Refugee Protection in South Africa (Berghahn Books, 2013), 71.

[96] Refugee Act Regulations (No. R 366) (6 April 2000), GG 21075, 10(4).

[97] Legal Aid South Africa, Who Qualifies for Legal Aid, (2013) <http://www.legal-aid.co.za/?p=956>

[98] Lawyers for Human Rights, Annual Report 2012, (2012), 2.

[99] Lawyers for Human Rights, Funders, <http://www.lhr.org.za/funders>

[100] Lawyers for Human Rights, Refugee & Migrant Rights Programme RMRP Additional Information, <http://www.lhr.org.za/programme/refugee-and-migrant-rights-programme-rmrp/information>

[101] Lawyers for Human Rights, above n 97, 6.

[102] Ibid, 11.

[103] Elibritt Karlsen, ‘Abolishing free legal advice to asylum seekers – who really pays?’, FlagPost Information & Research from the Parliamentary Library (27 November 2013) <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2013/November/Abolishing_free_legal_advice_to_asylum_seekers__who_really_pays> .

[104] Refugee Advice & Casework Service, Access to Justice Arrangements Submission to the Productivity Commission, Canberra (4 November 2013).

[105] Karlsen, above n 102.

[106] Refugee Advice & Casework Service, above n 103.

[107] Law Council of Australia, ‘Law Council concerned by removal of IAAAS Funding’ (Media Release, MR 1409, 2 April 2014) <http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/mediaReleases/1409_-- _Law_Council_concerned_by_removal_of_IAAAS_Funding.pdf> .

[108] ‘Legal aid denied to asylum seekers who arrive through unauthorised channels’, The Guardian (online), 31 March 2014 <http://www.theguardian.com/world/2014/mar/31/legal-aid-denied-asylum-seekers-arrive-boat>.

[109] UNSW Andrew and Renata Kaldor Centre for International Refugee Law, Factsheet Legal Assistance for Asylum Seekers, UNSW, (16 May 2014) <http://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/legal_assistance_16.05.14.pdf>.

[110] 3W News, Fair Advice Dumped by Abbott Government (7 April 2014) <http://www.3wnews.org/article/policy/free-advice- dumped-abbott-government> .

[111] Law Council of Australia, above n 106.

[112] Ran Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53 The American Journal of Comparative Law, 128.

[113] The World Bank, Data GDP (current US$) (2014) <http://data.worldbank.org/indicator/NY.GDP.MKTP.CD> .

[114] Ibid.

[115] Nathan Geffen, ‘South Africa, a country of chequebook justice’, Daily Maverick (online), 5 September 2013 <http://www.dailymaverick.co.za/opinionista/2013-09-05-south-africa-a-country-of-chequebook-justice/#.VFwgrzm9o4Y> .

[116] Ibid.

[117] Jaan Murphy, ‘Legal aid and legal assistance services- Budget Review 2013-14 Index’, Parliament of Australia <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201314/L egalAidServices>.

[118] Using the currency conversion rate provided by the Commonwealth Bank of Australia on 5 November 2014 AUD $200,000,000 equates to ZAR 1,807,975,000. Commonwealth Bank Group, Foreign Exchange Calculator <https://service.commbank.com.au/tools/foreign-exchange- calculator/foreign-exchange-calculator.aspx>.

[119] Department of Justice Canada, above n 62.

[120] This figure comes from the addition of the statistical data provided on pages 14-15 in Statistics Canada, Legal Aid in Canada: Resource and Caseload Statistics 2011/ 2012, Canadian Centre for Justice Statistics, (2013).

[121] Lawrence Lessig, Code and Other Laws of Cyberspace (Basic Books, 1999).

[122] Karl Klare, ‘Legal Culture & Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights, 150.

[123] Cass R. Sunstein, Designing Democracy: What Constitutions Do, (Oxford University Press, 2001), 67-68.

[124] Parliament of the Republic of South Africa, Our Constitution, <http://www.parliament.gov.za/live/content.php?Category_ID=11>.

[125] For further discussion see the first and third paragraphs of the postscript with the heading ‘National Unity and Reconciliation’. UCDP, Constitution of the Republic of South Africa Act 200 of 1993 <https://peaceaccords.nd.edu/site_media/media/accords/Constitution_of_South_Africa_Act_200_of_1993.pdf>.

[126] Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) <http://www.saflii.org/za/cases/ZACC/1996/26.html> 10.

[127] Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC) 1.

[128] Constitutional Act 1982 (United Kingdom).

[129] Nathan Tidridge, Canada’s Constitutional Monarchy: An Introduction to Our Form of Government, (Natural Heritage, 2011) 54-58.

[130] Ibid, 55.

[131] For further discussion on the context in which the Australian Constitution was developed see Saunders, above n 4, 13- 17.

[132] Williams and Hume, above n 46, 60.

[133] Williams, Brennan and Lynch, above n 6, 2.

[134] United Kingdom, Parliamentary Debates, House of Commons, 1990, vol 83, 4th series, 98-9.

[135] Honourable Jeff Thamsanqa Radebe, above n 38, 5.

[136] Dave Holness, ‘Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa’ (2013) 16(1) Potchefstroom Electronic Law Journal, 129.

[137] Loren Landau, ‘Protection & Dignity in Johannesburg: Shortcomings of South Africa’s Urban Refugee Policy’, (2006) 19 (3) Journal of Refugee Studies, 309.

[138] Handmaker, Hunt and Klaaren, above n 92, 285.

[139] The Working Group on Racial Equality, ‘Radical Equality in the Canadian Legal Profession’, (Presented to the Council of the Canadian Bar Association, Ottawa, February 1999), 69.

[140] This racism was described by the Supreme Court of Canada to include ‘stereotypes that relate to credibility, worthiness and criminal propensity’ in R v Williams [1998] 1 S.C.R. 1128, 58.

[141] For further discussion on this in relation to the right to legal representation see David Milward, Title: Aboriginal Justice & the Charter (UBC Publishing, 2012), 174-183.

[142] Ardith Walkem, Building Bridges: Improving Legal Services for Aboriginal Peoples, Legal Services Society, Vancouver, (7 October 2007).

[143] Chief Shining Turtle, ‘Aboriginal People Are on a Slow March To Second-Class Citizenship’, HuffPost Politics Canada (online), 12 November 2014 <huffingtonpost.ca/chief-shining-turtle/first-nations-reserve-services_b_6145522.html>.

[144] Ibid.

[145] 3W News, Fair Advice Dumped by Abbott Government (7 April 2014), <http://www.3wnews.org/article/policy/free-advice- dumped-abbott-government> .

[146] Ibid.


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