Chapter 3
Implications arising from international obligations
Introduction
3.1 Term of reference 3(a) requires the Committee to inquire into and
report on:
The implications for Commonwealth responsibility for legal assistance
arising from:
3.2 Before considering the legal aid implications for the Commonwealth
arising from its international obligations, the Committee considers it
useful to briefly identify those international instruments that may give
rise to such obligations. [1]
International obligations
3.3 Of all of the international treaties to which Australia is a party
and which were cited in evidence during the inquiry, the International
Covenant on Civil and Political Rights (ICCPR) is the only one which explicitly
imposes an obligation on parties to provide free legal assistance in certain
circumstances. [2] Specifically article
14(3)(d) of the ICCPR states, amongst other things, that everyone charged
with a criminal offence shall have the right:
to have legal assistance assigned to him, in any case where the
interests of justice so require, [3]
and without payment by him in any such case if he does not have sufficient
means to pay for it.
3.4 The Committee was also referred to Article 14(1) of the ICCPR. This
provides:
All persons shall be equal before the courts and tribunals. In
the determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law... [emphasis added]
3.5 This Article, unlike Article 14(3)(d), does not explicitly impose
an obligation on parties to provide legal assistance. Evidence to the
Committee suggested that the obligation to provide equality before the
courts and tribunals and the right to a fair trial, while not explicitly
requiring free legal assistance to those who cannot pay, may impliedly
generate an obligation to provide such assistance. [4]
3.6 The Committee notes that similar reasoning has been used by the Australian
High Court in Dietrich v The Queen. [5]
In that case the Court determined that in certain circumstances the common
law requirement of a fair trial necessitates the provision of legal aid.
3.7 Submissions drew the Committee's attention to other international
treaties that may also impliedly generate an obligation to provide legal
assistance. These include international obligations relating specifically
to children, women, victims of racial discrimination, and refugees. [6]
According to this view, implied obligations may arise because the rights
conferred under these Conventions can only be realised in certain circumstances
if legal aid is provided.
3.8 Some submissions drew the Committee's attention to other international
treaties whose nexus with the provision of legal aid in the Committee's
view is tenuous. [7]
Domestic responsibilities for complying with international obligations
3.9 The Commonwealth of Australia becomes a party international treaties.
The States and Territories do not. Other parties to those treaties look
to the Commonwealth to ensure that Australia's obligations are complied
with, not to the States and Territories.
3.10 This allocation of responsibility on the international plane for
complying with obligations does not have any effect on the domestic allocation
of responsibility as between the Commonwealth and the States and Territories.
The Commonwealth Attorney-General's Department advised that whilst the
Commonwealth may be internationally responsible, it is up to each party
to international treaties to decide exactly how to give effect to its
international obligations in its internal legal system. [8]
3.11 The Department emphasised that in the Australian federal system
it is not only Commonwealth law that gives effect to international obligations.
It advised the Committee that "Commonwealth legislation, State and
Territory legislation, administrative measures or common law, or a combination
of all of these" may give effect to international obligations. [9]
Giving effect to international obligations
3.12 The Attorney-General's Department advised that:
Treaties entered into by the Australian Government do not automatically
become part of Australian law. They give rise to rights under Australian
law if they are given legislative effect by an Act of Parliament, and
such an Act may provide that a treaty has direct effect as part of Australian
law. This may be Commonwealth, State or Territory legislation, or a
combination of them. [10]
3.13 As noted above, the ICCPR is the only international treaty which
specifically imposes an international obligation on Australia to provide
free legal assistance. The ICCPR has not been given the effect of law
in Australia. [11]
3.14 It should be noted that that provisions in international treaties
may have effect indirectly on the development of Australian law through
being used as a tool for interpretation of statutory law or as an influence
on the common law. [12] While the position
is unclear, a binding international obligation may also have an effect
on the decision making process of the executive. [13]
Implications of international obligations for the Commonwealth's provision
of funding
3.15 The Committee received conflicting evidence on whether the Commonwealth
or State or Territory governments should be responsible for ensuring that
sufficient legal aid funding is provided to meet Australia's international
obligations.
3.16 On the one hand, the Attorney-General's Department advised the Committee
that under new legal aid funding arrangements the Commonwealth will be
responsible for the funding of legal aid in "Commonwealth matters",
that is, any legal proceeding arising under a Commonwealth law. Therefore
the Commonwealth takes funding responsibility for the provision of legal
assistance under Commonwealth laws that give effect to international obligations.
[14]
3.17 The Department explained:
the Commonwealth has never agreed as a matter of principle that
the Commonwealth should necessarily bear the full costs of compliance
with treaty obligations. The Commonwealth is of the view that the States
and Territories should take funding responsibility for providing legal
assistance under their particular laws, as the Commonwealth is willing
to do under its laws. [15]
3.18 In relation to the funding provided to Commonwealth matters, the
Department advised the Committee:
the Commonwealth will be ensuring that persons charged with Commonwealth
offences who are in need of legal representation and are unable to afford
it, obtain legal aid in accordance with the principles set out in the
ICCPR. ... The Commonwealth expects the States and Territories to do
the same in relation to their laws. [16]
3.19 On the other hand, some witnesses maintained that the Commonwealth
Government, having entered into international treaty obligations, has
a responsibility to ensure that adequate funding is provided to give effect
to those obligations, even if they relate to matters dealt with under
State or Territory laws. [17]
3.20 The Legal Aid Commission of Tasmania summarised this view in the
following terms:
The States are not recognised as entities as such in the greater
international community, and any leadership in this area must emanate
from the Commonwealth. It would equally seem to follow that if the States
do not have international recognition and no capacity to raise revenue
to cause international obligations to be fulfilled that the Commonwealth
has both a legal and moral duty to fund measures that fulfil those obligations.
[18]
3.21 Similarly, the Legal Aid Commission of Queensland stated that "by
entering international obligations the Commonwealth Government has a responsibility
for legal services beyond Commonwealth matters". [19]
Conclusion
3.22 The Committee notes the fundamental position of the Commonwealth
Government is that it will be responsible for the provision of legal aid
in relation to Commonwealth matters only. It notes in addition that the
Commonwealth will fund these matters in accordance with the principles
contained in the International Covenant on Civil and Political Rights.
3.23 The Committee also notes that the Commonwealth applies this approach
to all laws, irrespective of whether they have any link to Australia's
international obligations or not. In doing so, the Commonwealth accepts
responsibility for the provision of legal assistance in relation to its
laws arising from international obligations, and expects the States and
Territories to do the same in respect to their laws. This approach is
consistent with the Commonwealth Government's view that it is only responsible
for Commonwealth matters.
3.24 When considering the implications of Australia's international obligations,
the Committee considers that the approach of the Commonwealth to quarantine
its responsibilities to Commonwealth matters only is unrealistic, impractical
and inappropriate.
Footnotes
[1] Submissions to the inquiry listed numerous
international instruments, including the International Covenant on Civil
and Political Rights, International Covenant on Economic Social and Cultural
Rights, Convention on the Rights of the Child, Convention on the Elimination
of All Forms of Discrimination Against Women, International Convention
on the Elimination of Racial Discrimination, Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
Convention relating to the Status of Refugees, Principles for the Protection
of Persons with Mental Illness and for the Improvement of Mental Health
Care, UN Congress on the Prevention of Crime and the Treatment of Offenders,
the Standard Minimum Rules for the Treatment of Prisoners, the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice.
[2] Submission No. 127, Attorney-General's Department,
p. 1810.
[3] The Attorney-General's Department, the Australian
Law Reform Commission, the Human Rights and Equal Opportunity Commission
and the Legal Aid Commission of Queensland provided the Committee with
evidence concerning the circumstances in which the “interests of
justice” will obligate a party to the Covenant to provide legal assistance.
The Committee understands that guidance can be gained from the European
Court of Rights interpretation of the materially identical provision in
the European Convention on Human Rights, Article 6(3)(c). On the basis
of recent European case law it seems that legal aid need not be provided
if there is no reasonable prospect of success and the matter is uncomplicated
and without serious consequence. However, the prosects of success are
of lesser relevance if there is much at stake for the individual and/or
the “legal issues germane to the litigation are complex”: see
Submission No 108, ALRC, p. 1535; Office of International Law advice
dated 6 August 1997 at p. 2; and Boner v UK (1994) 19 EHRR 246 and Maxwell
v UK (1994) 19 EHRR 97. In that case, the state is obliged to provide
free legal assistance to an indigent accused. It follows that the “interests
of justice” test is not solely, nor perhaps primarily, concerned
with the merits of the instant case.
[4] For example, Submission No. 132, HREOC p.
1945-1949; Submission No. 108, ALRC, p. 1538; Submission No. 80, Legal
Aid Commission of Queensland, p. 711.
[5] (1992) 177 CLR 292. See further Chapter
4 below.
[6] See Articles 37 and 40 of the Convention
on the Rights of the Child, Article 15 of the Convention on the Elimination
of All Forms of Discrimination Against Women, Article 5 of the International
Convention on the Elimination of Racial Discrimination, Article 16 of
the UN Convention relating to the Status of Refugees.
[7] See, for example, Submission No. 88, National
Legal Aid, p. 1058.
[8] Answers to Questions on Notice, Commonwealth
Attorney-General's Department, 3 June 1997, p. 2.
[9] Answers to Questions on Notice, Commonwealth
Attorney-General's Department, 3 June 1997, p. 2.
[10] Submission No. 127, Attorney-General's
Department, p. 1810.
[11] Submission No. 127, Attorney-General's
Department, p. 1810. See also Dietrich v The Queen (1992) 177 CLR 292,
p. 307 (Mason CJ and McHugh J), p. 321 (Brennan J), p. 348 (Dawson J),
p. 359-60 (Toohey J).
[12] See, for example, Mabo and Ors v State
of Queensland (No 2) (1992) 170 CLR 1; Minister for Immigration and Ethnic
Affairs v Teoh (1995) 128 ALR 353.
[13] Pursuant to the doctrine of legitimate
expectation as decided in Teoh's case and modified by Executive Statements
dated 10 May 1995 and 25 February 1997. See Submission No. 84, Legal Aid
Commission of NSW, p. 952.
[14] Evidence, Attorney-General's Department,
p. 140. Examples of such laws are the Race Discrimination Act 1975 and
the Sex Discrimination Act 1984.
[15] Submission No. 127, Attorney-General's
Department, p. 1810.
[16] Answers to Questions on Notice, Commonwealth
Attorney-General's Department, 3 June 1997, p. 2.
[17] For example, Submission No. 43, Legal
Aid Commission of Tasmania, p. 379; Submission No. 67, Mr Damian Murphy,
p. 595; Submission No. 80, Legal Aid Commission of Queensland, p. 710;
Submission No. 84, Legal Aid Commission of NSW, p. 952.
[18] Submission No. 43, Legal Aid Commission
of Tasmania, p. 379.
[19] Submission No. 80, Legal Aid Commission
of Queensland, p. 710.