Supreme Court of the ACT|2009-05-12

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48 (12 May 2009)

IMRAN HAKIMI v LEGAL AID COMMISSION (ACT); THE AUSTRALIAN CAPITAL TERRITORY (INTERVENER)

[2009] ACTSC 48 (12 May 2009)

HUMAN RIGHTS - right to a fair trial - whether the accused can choose counsel when provided by the state - s22, Human Rights Act 2004 (ACT)

HUMAN RIGHTS - act or decision inconsistent with human rights by a public authority - Pt 5A, ss 40B, 40C, Human Rights Act 2004 (ACT)

PRACTICE AND PROCEDURE - intervention by the Attorney-General - s 35 Human Rights Act 2004 (ACT)

Human Rights Act 2004 (ACT), Pts 3, 5A, ss 21, 22, 22(2), 22(2)(b), (d), (e), (f), 28, 28(2), 30, 31, 31(2)(a), 35, 36, 40, 40A, 40B, 40C, sch 1

Legal Aid Act 1977 (ACT), Pt 5, ss 5, 6, 8, 10, 10(1)(a), 11, 11(b)

Legislation Act 2001 (ACT), ss 13, 14, 127(1), 142, Pt 1 of the Dictionary

Trade Practices Act 1974 (Cth), s 163A

Allocation of Work between Officers of the Commission and Private Legal Practitioners Guidelines (ACT), guidelines 1, 1(b)-(c), 1(b)(iii), 2

Human Rights Bill 2003 (ACT) Explanatory Statement

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 June 1952), arts 14, 6, 34, 41, 46(1)

International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993), preamble, arts 14, 14(3)(d)

Universal Declaration of Human Rights 1948 (United Nations General Assembly Resolution 217 A (III), 10 December 1948), preamble

Tomkins A, "The Committee of Ministers; Its roles under the European Convention on Human Rights" [1995] 1 EHRLR 49

Emmerson B, Ashworth A and A Macdonald A, Human Rights and Criminal Justice (2nd ed, Sweet and Maxwell, 2007)

Byrnes A, Charlesworth H and McKinnon G in their Bills of Rights in Australia, History, Politics and Law (UNSW Press, 2008)

Report of the ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (Canberra, May 2003)

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Teesdale v Trinidad and Tobago [2002] UNHRC 17

Earl Pratt and Ivan Morgan v Jamaica [1989] UNHRC 12; [1989] UNHRC 11

Corporate Affairs Commission v Bradley; Commonwealth (Intervener) [1974] 1 NSWLR 391

Cheesman v Walters (1997) 77 FCR 221

Levy v Victoria (1997) 189 CLR 579

O'Keeffe Nominees Pty Ltd v BP Australia Ltd and Anor (No 2) [1995] FCA 1079; (1995) 55 FCR 591

Stevens v McCallum [2006] ACTCA 13

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Alcock v Casey [2009] ACTCA 1

R v Fearnside [2009] ACTCA 3

Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487

R v Heemi (1998) 16 CRNZ 221

R v Elliot (1997) 4 HRNZ 648

R v Williams (2006) 16 VR 168

Croissant v Germany [1992] ECHR 60; (1993) 16 EHRR 135

Doorson v Netherlands [1996] ECHR 14; (1996) 22 EHRR 330

1. From 1 January 2009, amendments to the Human Rights Act 2004 (ACT) (the Human Rights Act) made by the Human Rights Amendment Act 2008 (ACT) came into force, introducing a new Pt 5A into the Human Rights Act whereby under the new s 40C, a person may start proceedings in this Court against a public authority, where there is an alleged contravention of the obligation of the authority not to act in a way that is incompatible with a human right under the Human Rights Act, and the person is or would be a victim of the authority so acting. This is the first application under those provisions.

2. The applicant, Mr Imran Hakimi, a refugee from Afghanistan, was arrested on 2 July 2008 and charged with an offence contrary to s 54(1) of the Crimes Act 1900 (ACT). Such an offence is a serious one, attracting a maximum penalty of twelve years imprisonment. Thus, it is likely, though I do not decide, that a trial at which Mr Hakimi was not represented, except through his own choice or default, would not be a fair trial according to the principles set out in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and under s 22 of the Human Rights Act.

3. Mr Hakimi appeared in the Magistrates Court on the 3 July 2008 and was remanded in custody. He eventually made a bail application himself which was successful. He then went to see his present solicitor, Mr D Romano, and it was asserted by Mr Hakimi in his affidavit that Mr Romano and his firm had acted for Mr Hakimi since that time. Mr Romano has, however, not always appeared for Mr Hakimi. It appears that he did not appear at the committal and he did not appear at several directions hearings (held under r 4733 of the Court Procedures Rules 2006 (ACT)) before me, until I directed Mr Romano to appear and brought this matter to a head, by requesting these proceedings to be brought to resolve the impasse that had developed.

4. Mr Hakimi has insufficient resources to employ a private solicitor. Accordingly, when he approached Mr Romano, he was advised to apply for legal aid to the defendant, the Legal Aid Commission (ACT) (the Commission), a statutory corporation established under s 6 of the Legal Aid Act 1977 (ACT), (the Legal Aid Act), whose functions under s 8 of that Act are to provide legal assistance in Australian Capital Territory matters in accordance with the Act. Such assistance may be provided by the Commission arranging for the services of a private legal practitioner to be made available at the expense of the Commission, or by making available the services of lawyers employed by the Commission.

5. Unsurprisingly, Mr Hakimi qualified for legal aid, but the Commission - applying what was described in correspondence as "the Work Allocation Guidelines" - granted aid on the basis that the legal assistance would be provided by one of the Commission's own lawyers.

6. The Guidelines, entitled "Allocation of Work between Officers of the Commission and Private Legal Practitioners" (the Work Allocation Guidelines), are made under s 11 of the Legal Aid Act, which permits the Commission to determine guidelines for the allocation of work between officers of the Commission and private legal practitioners, having regard to the considerations set out in that section. These were exhibited before me as an annexure to an affidavit of Mary-Therese Daniel, a senior officer of the Commission.

1(a) Subject to guideline 1(b), legal assistance will be provided by making available the services of an officer of the Commission in the following circumstances:

(i) where an assisted person expresses a preference for an officer of the Commission to act;

(ii) where an assisted person is charged with an offence that is to be dealt with in a superior court, or related proceedings are to be dealt with in a superior court;

...

(vi) where in the opinion of the Chief Executive Officer legal assistance can be provided at less cost by utilising the available capacity of officers of the Commission;

(b) In the following circumstances, legal assistance to which guideline 1(a) refers may be provided by making available the services of a private legal practitioner chosen by the assisted person, or, if the assisted person has not expressed a choice, by a private legal practitioner selected by the Commission in accordance with guideline 3:

(i) where the Commission is unable to act due to a conflict of interest;

(ii) where in the opinion of the Chief Executive Officer there are special circumstances that make it desirable that legal assistance be provided by making available the services of a private legal practitioner;

(iii) where an assisted person is charged with an offence that is to be dealt with in a superior court and it is necessary in the interests of justice that legal assistance be provided by making available the services of a private legal practitioner.

(c) For the purposes of paragraph 1(b)(ii) 'special circumstances' include but are not limited to:

(i) the urgency of the matter for which legal assistance is provided;

(ii) any hardship which might be occasioned to the applicant due to the location of Commission offices;

(iii) the desirability of a lawyer being able to converse with the assisted person in a language other than English;

(iv) the existence of a prior professional relationship between the assisted person and a private legal practitioner that would be of material benefit to the conduct and outcome of the case.

Subject to guideline 1, where an assisted person expresses in their application for legal assistance a preference for the services of a particular private legal practitioner or officer of the Commission, legal assistance will be provided by making available the services of that practitioner or officer, subject to their availability.

8. This decision was not satisfactory to Mr Hakimi who wished Mr Romano to continue to act for him. This was a position to which he adhered in the application before me.

9. There followed an extended correspondence between the Commission and Mr Romano (or others in his office) about the matter. Mr Romano asserted that the Human Rights Act permitted Mr Hakimi to retain him and that the Commission was then required to pay for his representation, though presumably at the rates usually applicable to referrals by the Commission to private legal practitioners.

10. The Commission denied that the Human Rights Act required the Commission to act in this way and denied that the Work Allocation Guidelines were inconsistent with that Act.

11. When this impasse reached the directions hearings I was conducting, I required Mr Romano and the Legal Aid Commission (ACT) to attend before me, which they did. The ACT Government Solicitor was also kind enough to attend. I gave directions for bringing this application so that the issue could be determined and the criminal proceedings be pursued as promptly as possible.

12. Accordingly, Mr Hakimi, through Mr Romano, issued an originating application on 2 March 2009 seeking primarily the following relief:

That the Defendant, Public Authority has contravened section 40B of the Human Rights Act 2004 by failing to provide adequate funds by way of legal aid so that the Plaintiff may be legally represented in criminal proceedings pending before the Courts of the ACT by a legal representative chosen by him in accordance with the Provisions of Section 22(2)(b), (d), (e) and (f) of the Human Rights Act 2004.
That the Defendant be required to provide the relief sought pursuant to s 40C of the Human Rights Act 2004.

13. I noted that the defendant was described in the Originating Application as "The Chief Executive Officer, Legal Aid Office of the Australian Capital Territory".

14. The Chief Executive Officer is almost certainly a "public employee" and therefore a public authority under s 40 of the Human Rights Act, by virtue of the definition of "public employee" and "territory instrumentality" in Pt 1 of the Dictionary to the Legislation Act 2001 (ACT). I do not have to decide that.

15. The function of granting aid, however, is one that the Commission is required to perform, namely the provision of legal assistance in the ways mentioned in Pt 5 of the Legal Aid Act. Further, the Work Allocation Guidelines are made by the Commission under s 11 of the Legal Aid Act and so they would bind the Chief Executive Officer.

16. Accordingly, the Commission is the relevant authority for this application. Further, its corporate name under s 6 of the Legal Aid Act is the "Legal Aid Commission (A.C.T)".

17. As a result, I directed that the name of the defendant be amended in these proceedings to "Legal Aid Commission (A.C.T.)".

18. Mr Hakimi relied on and read an affidavit of himself and an affidavit of Mr Domenico Romano, the latter principally annexing correspondence. The Commission relied on and read an affidavit of Ms Mary-Therese Daniel, which principally annexed the Work Allocation Guidelines.

19. The Attorney-General for the ACT intervened under s 35 of the Human Rights Act but filed no affidavit.

20. Mr Hakimi's argument was simply put that properly construed, pars (b), (d), (e) and (f) of s 22(2) of the Human Rights Act mandated that the Commission is required to pay the expenses of the lawyer of Mr Hakimi's choice, even if that is a private practitioner.

21. Although not expressly stated, I took it that Mr Hakimi was relying on s 40B of the Human Rights Act which makes it unlawful for a public authority to act in a way that is incompatible with human rights. Thus, not to pay the expenses incurred by Mr Romano in representing Mr Hakimi, as Mr Hakimi's lawyer of choice, would be unlawful.

22. It is convenient to set out the pars of s 22 of the Human Rights Act relied on by Mr Hakimi:

(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

...

(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;

...

(d) to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her;

(e) to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;

(f) to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance.

23. Mr Romano, who appeared for Mr Hakimi, submitted that he was relying on the plain meaning of s 22 of the Human Rights Act. He referred to no authorities and cited no principles. In effect, he asked the court simply to read the provision in the same way as it would read any other act of Parliament and submitted that the meaning was clear: that Mr Hakimi had a right to defend himself through legal assistance chosen by him, and that if the interests of justice required that he have such assistance (and as I indicated above they certainly seem to do so) and he could not afford it, then the legal assistance must be provided without payment. He submitted that, in the context and reading at least the section as a whole, the legal assistance to be provided without payment (if the pre-conditions in s 22(2)(f) of the Human Rights Act were met) must be the legal assistance to which s 22(2)(d) renders Mr Hakimi to be entitled, namely assistance chosen by him.

24. This is an attractive argument, not only for its simplicity, but because it can be seen to be a fairly conventional application of the traditional approach to statutory construction.

25. Mr Romano did, however, acknowledge that there were arguments that might undermine this simple, straight-forward approach. For example, he acknowledged that the provision could not mean that a person charged with a criminal offence could require a lawyer to act for him or her, even if that lawyer was unwilling or refused to do so.

This was, for example, the situation in X v United Kingdom (1980) 21 DR 126 where, in the course of evidence on the voir dire the accused departed from his instructions and admitted that certain incriminating statements which he had allegedly made were in fact true. Despite this, he wished defence counsel to continue to represent him on the basis that the statements were untrue. Defence counsel unsurprisingly withdrew. The court held that in view of the admissions made on the voir dire, any other counsel appointed would be unavoidably embarrassed, and required the accused to continue unrepresented, though assisted by his solicitor. The European Commission on Human Rights held that there had been no breach of the relevant provisions of the European Convention for the Protection of Human Rights and Fundamental 1950, 213 UNTS 221 (the European Convention).

27. Further, Mr Romano acknowledged that the provisions could not mean that the funds of the Commission were required to pay for any lawyer whom the person charged with the criminal offence chose, no matter how expensive that lawyer's fees were. He also acknowledged that the courts were not required to wait for an unreasonably long period of time just because the lawyer of choice of a person charged with a criminal offence was otherwise engaged, for example, in a long-running trial or Royal Commission or inquiry or the like.

28. Such examples showed that a plain reading could lead to such an absolute interpretation that was, if not absurd, at least so unreasonable that it is unlikely that the legislature intended it.

29. The difficulty is where to draw a line and on what principles. In effect, if the provisions do not have their plain meaning, what do they mean?

30. Mr Romano submitted that one did not have to go this far. All one needed to show, he submitted, was that where a private practitioner, such as himself, was willing to act for the person charged with the criminal offence, and to do so at the fees customarily paid by the Commission, and was also the person's choice of lawyer, then the Human Rights Act required the Commission to give effect to that choice.

31. This, too, is an attractive argument, for it gives much weight to the apparently clear words of the provisions without needing to adopt the examples recounted above which lead to a form of reductio ad absurdum.

32. Mr Romano did not, however, really articulate this argument. Doing the best I can, it appears that what was being submitted must be something along the lines of the following.

33. The provisions provide for legal assistance of the choice of the person charged with a criminal offence as a human right, that is a minimum guarantee required for a fair trial. If the person cannot afford such legal assistance, then a further minimum guarantee is that, if the interests of justice require it, such assistance must be provided without cost.

34. These rights are however not absolute and may be limited by reasonable limits that can be demonstrably justified in a free and democratic society: s 28 of the Human Rights Act. Thus, the right cannot result in what may be called civil conscription, that is to say, it cannot result in a lawyer being forced to act for the person charged with the criminal offence where they do not wish to do so. Other limits that could reasonably be applied to the rights would include a requirement for the chosen lawyer to abide by reasonable fees or a requirement that the courts need not wait for an unreasonably long period of time for the counsel of choice to become available.

35. The Commission did not contend that it was not a public authority, nor that it was not bound to apply the provisions of s 22 of the Human Rights Act so far as they applied to it and required its compliance.

36. The Commission, represented by Mr M Hockridge, essentially mounted two arguments. In the first place, it pointed out that there was a difference between the wording of pars (b), (d) and (e) of s 22(2) of the Human Rights Act and par (f).

The Commission noted that there was an express reference in pars (b), (d) and (e) to lawyers or legal assistance "chosen by him or her" but that there was no such reference in par (f). This, the Commission submitted, was a deliberate omission. It was a recognition of the international jurisprudence in respect of similar provisions in international instruments. For example, reference was made to the consideration of the Human Rights Committee in Teesdale v Trinidad and Tobago [2002] UNHRC 17 where art 14(3)(d) of the International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (the Covenant) was considered. That article provides:

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right, and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

38. The Human Rights Committee commented in Teesdale v Trinidad and Tobago at par 9.6:

The author further claims that at the Appeals Court he was assigned a legal aid attorney, who [sic] he rejected as his representative. Article 14, paragraph 3(d), stipulates the right to defend oneself in person or through legal assistance of his own choosing. However, the Committee recalls its previous jurisprudence that an accused is not entitled to choice of counsel if he is being provided with a legal aid lawyer, and is otherwise unable to afford legal representation. Therefore, the Committee finds that Article 14, paragraph 3(d), was not violated in the present case.

The "previous jurisprudence" included the Committee's earlier comment on art 14(3)(d) of the Covenant in Earl Pratt and Ivan Morgan v Jamaica [1989] UNHRC 12; [1989] UNHRC 11 in which the Committee had said (at [13.2]):

As to the first issue under article 14, the Committee notes that legal representation was available to the authors. Although persons availing themselves of legal representation provided by the State may often feel they would have been better represented by counsel of their own choosing, this is not a matter that constitutes a violation of article 14, paragraph 3(d), by the State party ...

40. Thus, it was submitted that where legal aid authorities provided free representation, it was not the intention of the provision which now appears as s 22(2)(f) of the Human Rights Act to require that this was to be by a lawyer of the person's own choice.

41. The Commission supported this argument by submitting that the references in pars (b), (d) and (e) of s 22(2) of the Human Rights Act to "chosen by him or her" were "primarily concerned with preventing a criminal defendant being forced to accept the help of a lawyer to whom the defendant has a reasonable objection".

42. The second argument was that, even if there was to be implied into par (f) of s 22(2) of the Human Rights Act the right to choose the legal representative, s 28 of that Act permitted reasonable limitations on that right and, it was submitted, the Work Allocation Guidelines were such reasonable limitations.

43. The limitations were said to arise from the Commission's obligation to deliver its legal assistance in the most effective, efficient and economic manner: s 10(1)(a) of the Legal Aid Act. The Work Allocation Guidelines were expressly required to take into account the need to make the most efficient use of money available to the Commission: s 11(b) of the Legal Aid Act.

44. It is notorious that legal aid authorities always have less funds than they need for meeting all the requests made on them for legal assistance. Thus, mechanisms to see that their funds are spread as widely as reasonably consistent with proper legal representation, would be compatible with the objectives implied in provisions such as s 22(2) of the Human Rights Act.

45. I note that the Work Allocation Guidelines, under guideline 1(b), do expressly require the Commission to take into account the fact that a person seeking legal aid has expressed a preference for a private legal practitioner to act for him or her, and that in limited circumstances, under guideline 2, this will be provided if it is not inconsistent with the considerations under guideline 1. I note, too, that guideline 1(b)(iii) expressly requires the Commission to have regard to the interests of justice in determining whether a private legal practitioner may be appointed by the Commission.

46. Under s 35 of the Human Rights Act, the Attorney-General has a right to intervene in proceedings which involve the application of that Act. Unlike the position with the Human Rights Commissioner (s 36 of the Human Rights Act), leave of the Court is not necessary for the intervention.

47. Ordinarily, an intervener becomes a party to the proceedings: Corporate Affairs Commission v Bradley; Commonwealth (Intervener) [1974] 1 NSWLR 391 at 396; Cheesman v Walters (1997) 77 FCR 221 at 227. That means that the intervener, who becomes an additional defendant or respondent, can appeal, tender evidence and participate fully in all aspects of the proceeding.

48. A non-party may also be heard as an amicus curiae. In such a case, the person seeking to be heard on this basis offers the Court a submission on law or a relevant fact which will assist the court in a way in which the Court would not otherwise have been assisted, for example, where one of the parties declines to address the issues for determination: Levy v Victoria (1997) 189 CLR 579 at 604.

49. While the role actually played by the Attorney-General in this matter was similar to that of an amicus curiae, I see no reason why I should not give the words of the section full force and effect and accept the Attorney as a true intervener and therefore a party. In that regard, the position of the Attorney seems similar to that of the Trade Practices Commissioner under s 163A of the Trade Practices Act 1974 (Cth) as discussed in O'Keeffe Nominees Pty Ltd v BP Australia Ltd and Anor (No 2) [1995] FCA 1079; (1995) 55 FCR 591 at 595-7. I would certainly be inclined to accept that this is so. Since, however, I have not heard submissions on the matter and it may not ultimately affect the outcome, I make no final determination.

50. It may, of course, become relevant in relation to costs or in any appeal from my decision and so may need to be determined later in these or other proceedings.

51. The Attorney-General submitted that the correct approach to the issues raised by Pt 5A of the Human Rights Act could be encapsulated by asking the following five questions:

1. Is the entity engaging in the relevant act or making the relevant decision a public authority under ss 40 and 40A?

2. Is the relevant act or decision apparently inconsistent with, or does it impose a limitation on, any of the rights protected under Pt 3 of the Human Rights Act?

3. Is the limitation reasonable, insofar as it can be demonstrably justified in a free and democratic society having regard, inter alia, to the factors set out in s 28(2) of the Human Rights Act? To put it another way, is the limitation proportionate?

4. Even if the limitation is proportionate, where the matter involves making a decision, did the decision-maker give proper consideration to the protected right?

5. Does the act or decision made under an Act or instrument give either no practical discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 30 of the Human Rights Act consistently with the protected right?

52. In my view this does appear in general to be the proper way to approach the issue of how claims under Pt 5A of the Human Rights Act should be determined. Of course, not all questions will have to be answered in all cases and in some cases the answers will be complex and require significant consideration.

53. I do think, however, that it is desirable to add two questions. Before question 1, I would ask:

O: What is the act or decision which is the subject of challenge?

This question can be difficult and needs precision in articulation. In addition, after question 1, I would ask:

1A: What is the human right engaged and what is its content?

For reasons that will become clear, that is not always as obvious as these questions suggest.

54. No party made a submission that the defendant, now correctly described, was not a public authority and that is quite correct.

55. In order to answer the second question, it is necessary to identify the act or decision (my question O) and to describe the right said to be relevant to the act or decision (my question 1A). The subject matter of the complaint is in my view a decision, not an act, namely the decision of the Commission that the legal assistance was to be provided by an officer of the Commission and not by the private legal practitioner chosen by Mr Hakimi.

56. The Attorney submitted that the rights set out in s 22(2) of the Human Rights Act were an aspect of the right to a fair trial, namely a specific right in relation to legal assistance as set out in pars (b), (d), (e) and (f) of s 22(2) of the Human Rights Act. The Attorney submitted that none of these provisions, in terms, protected a right to choose legal aid counsel. It was further submitted that this was confirmed by international jurisprudence.

57. The Attorney further submitted that in large measure the right to a fair trial at common law is substantially the same as the right protected under ss 21 and 22 of the Human Rights Act.

58. It seems to me that this is broadly correct. While there are statements that the common law is accurately described as a right not to be tried unfairly (see, for example, Stevens v McCallum [2006] ACTCA 13) this has to be seen in the context in which it was identified, where Deane J said in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 56-57:

The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused's 'right to a fair trial'. I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable 'right' since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.

59. See also Dietrich v The Queen at 299-30 per Mason CJ and McHugh J.

60. Certainly, with that understanding, the High Court has constantly used the phrase "right to a fair trial" thereafter. It seems to me that the equivalence in what was said by Deane J between "a right not to be tried unfairly" and "an immunity against conviction otherwise than after a fair trial" shows that there was not, at least in his Honour's view, a difference between a "not unfair trial" and "a fair trial".

61. Similarly, I am not aware of any jurisprudence under any of the international equivalents to the Human Rights Act which have held that a person has the right to insist on being prosecuted in the sense in which Deane J held that the "right to a fair trial" might more accurately be construed.

62. The Attorney then submitted that, in the event that there was a contravention of s 22 of the Human Rights Act, the limitation that creates that contravention was proportionate. In this, the Attorney's submissions were relevantly the same as those of the Commission.

The approach to the Human Rights Act

63. This matter raises quite specifically the nature of the Human Rights Act and its content. Is it simply another Act of the Australian Capital Territory Legislative Assembly to be construed as with any other such Act of Parliament, to which the ordinary canons of construction set out in the Legislation Act 2001 (ACT) and the common law apply?

64. One of the issues of debate about the Human Rights Act when it was first proposed and then enacted was the question about the content of the rights. They are expressed in very general terms. Some are said to be absolute, others subject to limitations, sometimes expressed in the wording which specifies the right, others subject to that limitation enunciated in s 28.

65. In a number of the ACT Supreme Court decisions which refer to the Human Rights Act, overseas jurisprudence is frequently cited. See for example, Alcock v Casey [2009] ACTCA 1, R v Fearnside [2009] ACTCA 3 and others.

66. This is of course invited by the Act itself, which provides in s 31:

31. Interpretation of human rights

(1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.

(2) In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account:

(a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole;

(b) the undesirability of prolonging proceedings without compensating advantage;

(c) the accessibility of the material to the public.

Note: The matters to be taken into account under this subsection are consistent with those required to be taken into account under the Legislation Act, s 141(2).

(3) For subsection (2)(c), material in the ACT legislation register is taken to be accessible to the public.

67. Reference to English decisions, New Zealand decisions and Canadian decisions, and even American decisions, is unexceptionable as this country has, despite the now clear indication of the existence of an Australian common law (e.g. CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, especially at 26-27, 32), always seen an aspect of the genius of the common law in its capacity to draw on the learning and experience of other similar common law jurisdictions. Of course, our law is also taken from the English common law, which is likewise the source of New Zealand, Canadian and American common law.

68. Those countries, however, have quite different human rights contexts. For example, the UK is bound by the European Convention. While the House of Lords is the final court of appeal in a general sense for the UK, there is a right to petition the European Court of Human Rights (the European Court) (art. 34 of the European Convention) which can and does effectively overrule decisions of the House of Lords. That is to say a decision of the European Court is final and binding (art. 46(1)). Though it does not have jurisdiction to quash the decisions of the House of Lords, for example, to overturn a criminal conviction, it has the power to award "just satisfaction" for the victim of a rights violation (art. 41) and the UK is bound to abide by an applicable decision of the court (art. 46(1)). This is enforced by the Committee of Ministers. See Tomkins A, "The Committee of Ministers; Its roles under the European Convention on Human Rights" [1995] 1 EHRLR 49.

69. The European Court is not a body that has direct or traditional influence on Australian jurisprudence and is not within the ordinary line of precedent. Yet its judgments are increasingly cited with approval and as authoritative as to the content and meaning of the rights which it protects.

70. That its jurisprudence should be respected is perhaps inherent in the very notion of human rights. They are, as described in the preamble to the Universal Declaration of Human Rights 1948 (United Nations General Assembly Resolution 217 A (III), 10 December 1948), "the equal and inalienable rights of all members of the human family" and to like effect in the preamble to the Covenant. It is therefore difficult to see how the rights themselves can be different for different juridical systems. They are intended to be universal and inherent to the notion of humanness. That is not to say that local legal and political systems may not approach the issue of proportionality somewhat differently, though it would also be relevant and important to see how that was done.

71. Thus, the process of identification of the content of rights enshrined in the Human Rights Act is properly to be assisted by the jurisprudence of international courts and tribunals, which consider the same or relevantly similar rights expressed in instruments similar to the Human Rights Act.

72. That this is intended by the Human Rights Act is clear from the Act itself and from the circumstances of its making. Thus, sch 1 to the Act shows the Covenant to be the source of the rights in Pt 3 of the Act. This is clear from the note to Pt 3; although a note is not part of an Act (s 127(1) of the Legislation Act 2001 (ACT)), it is of some value in confirming what is to be understood from sch 1 of the Human Rights Act in the light of s 142 of the Legislation Act 2001 (ACT) and especially item 1, column 2 of Table 142.

73. I have also had regard to the Report of the ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (Canberra, May 2003) which was presented to the Legislative Assembly on 23 October 2003 and, therefore, falls within item 2, column 2 of Table 142 in the Legislation Act 2001 (ACT). This Report proposed that the rights set out, inter alia, in the Covenant should be protected by the recommended Human Rights Act. See pp 3, 109.

74. Additionally, s 31 of the Human Rights Act, quoted above, confirms this general approach which recognises the universality of human rights and so the value of international jurisprudence.

75. This is confirmed by the Explanatory Statement to what was the Human Rights Bill 2003 (ACT) where it states:

The primary source of these rights is the International Covenant on Civil and Political Rights (the Covenant). Schedule 1 provides a cross reference of Part 3 rights to the relevant article of the Covenant.

In some cases the rights appear in a different order to that of the Covenant. This is to provide a more logical sequence to the order in which the rights appear.

The rights are generally expressed in the same terms as the Covenant except where some adjustments to language were necessary to improve the drafting or to clarify the application of a right in the context of the Territory. For example, the right to life is expressed to apply only to a person from the time of birth. This is expressed in clear terms to avoid doubt about how the right to life applies in the Territory.

76. Similarly in the presentation speech, Mr J Stanhope, then Chief Minister and Attorney-General, said in the Legislative Assembly on 18 November 2003:

The object of this Bill is to give recognition in legislation to basic rights and freedoms.

...

...this Bill will recognise in legislation fundamental rights and freedoms drawn from the International Covenant on Civil and Political Rights. Consequently rights... will be interpreted and applied in the ACT context.

77. I am, however, mindful that s 31(2)(a) refers to the "desirability of being able to rely on the ordinary meaning of this Act" and accordingly the ordinary canons of statutory construction of this legislation cannot be ignored.

78. In considering par (f) of s 22(2) of the Human Rights Act, I accept that in terms of traditional statutory construction, the omission of "chosen by him or her" was deliberate. If support was needed for that, I would rely on the maxim "expressio unius est exclusio alterius", though I accept that it is something of a weak aid to construction and should be applied with caution: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 513.

79. This construction is confirmed by the international jurisprudence to which I can assume that the legislature had regard when deciding on the form of this provision.

80. The point was canvassed at some length by the New Zealand Court of Appeal in R v Heemi (1998) 16 CRNZ 221 where the Court, consisting of Eichelbaum CJ, Anderson and Elias JJ, said (at 228):

It is of comfort, however, that in declining to uphold choice of counsel, New Zealand jurisprudence is in accord not only with the decisions of the HRC, but also with those of the European Commission on Human Rights ("ECHR").

...

The ECHR has 'consistently held' that this provision does not provide the right for legally aided applicants to choose their legal representative, see Application No 9728/82 v UK (1983) 6 EHRR 345 (ECHR).

See also R v Elliot (1997) 4 HRNZ 648 at 651.

81. The European Commission on Human Rights has also considered these issues. In M v United Kingdom [1984] 36 DR 155, the Commission said (at 158):

The Commission recalls first that it has consistently held that this provision does not provide the right for a legally aided applicant to choose his legal representative. To the extent, therefore, that the applicant complains that he was not able to choose his legal representative in his legally aided application for leave to appeal against sentence on the charge of theft, his application is incompatible with the Convention ratione materiae.

82. A little later, the Commission addressed a further complaint and said:

Recognising that financial restraints may be necessary to ensure the most cost-effective use of the funds available for legal aid, the Commission finds nothing to show that Article 6, para. 3.c, of the Convention required a further consultation between the applicant and his counsel, where the latter did not consider this necessary for the proper pursuit of the appeal.

83. While not directly on point, this passage is support for the view that the principles in s 10(1)(a) of the Legal Aid Act relating to economy are properly to be considered in deciding on the content of the right and whether it has been contravened.

84. There are a number of other decisions of both the European Commission and the European Court to the same effect.

85. I am reinforced in this approach by a consideration of the right to a lawyer of the accused person's choice. It seems to me that both common sense and international jurisprudence require the interpretation that pars (b), (d) and (e) of s 22(2) of the Human Rights Act do not mandate that a person charged with a crime has an absolute right to be represented by a lawyer chosen by him or her.

86. I consider that those sections cannot be held to require any lawyer to act for that person regardless of their wishes or availability. It also seems to me that questions of delay can override the choice made by the person charged: see R v Williams (2006) 16 VR 168, especially at [20].

87. In Croissant v Germany [1992] ECHR 60; (1993) 16 EHRR 135, the European Court held that in the circumstances of that case, it was not a breach of the accused's human rights for a court to appoint an additional lawyer to which the accused objected on political grounds, and to require that lawyer to continue to act for the accused. It was held (at [27]) that the accused person's choice could be overridden, but only where there was "relevant and sufficient justification".

88. The converse, but also relevant situation, is to be seen from X v United Kingdom, referred to above.

89. Thus, the right is not absolute and has inherent limitations which are being worked out through decisions such as this and the above. Of some immediate interest are provisions which require a court to appoint a lawyer for a person accused of a sex crime who is otherwise unrepresented, for the purpose of cross-examining the complainant. Regarded as a proper balance between the rights of the accused and those of the victim (see Doorson v Netherlands [1996] ECHR 14; (1997) 22 EHRR 330) some commentators believe that such a provision would not breach art 14 of the European Convention, the relevant equivalent of s 22 of the Human Rights Act. See Emmerson B, Ashworth A and Macdonald A, Human Rights and Criminal Justice, (Sweet and Maxwell, 2007) at pp 478-9.

90. Accordingly, I find that there is no absolute right for a person legally aided to choose their lawyer.

91. This relieves me of considering whether the Work Allocation Guidelines are a reasonable limitation on the right to a lawyer of the accused's choice under s 28 of the Human Rights Act, since the question does not arise.

92. It also relieves me of deciding the contentious issue, identified in Byrnes A, Charlesworth H and McKinnon G, Bills of Rights in Australia, History, Politics and Law (UNSW Press, 2008) at p 120, of whether the justifiable limits permitted in s 28 of the Human Rights Act to restrict a human right are available to be relied upon by public authorities absent a Territory law (i.e. an Act or statutory instrument: Dictionary to the Human Rights Act). Of course, the Work Allocation Guidelines are probably a statutory instrument in this case: ss 13 & 14, Legislation Act 2001 (ACT).

93. I note that the Work Allocation Guidelines go some way to respecting the right expressed in s 22(2)(d) of the Human Rights Act, though I have found it is not bound absolutely by it, for it requires consideration to be given to the arranging of legal assistance through the private lawyer chosen by an applicant for legal aid, before deciding that an officer of the Commission should be appointed. See guidelines 1(b)- (c).

94. If these Guidelines had not been applied properly, then there may have been a ground of challenge for the Applicant under a provision for judicial review.

95. Thus, if the respondent had failed to advert to the human right or had unreasonably ignored or rejected special circumstances justifying the arranging of legal assistance through a nominated private practitioner, this may have justified curial intervention.

96. Similarly, if par (d) of s 22(2) of the Human Rights Act is to be construed and submitted by the Commission (see [41] above) - about which I make no specific finding - then it may be that if the Commission, through its Work Allocation Guidelines, forced a litigant to accept a lawyer employed by it where there were reasonable grounds for the litigant objecting to that assignment, there may be a breach of the right protected by that provision.

97. In this case, no material was ultimately put to me on which I could come to that conclusion.

98. Accordingly, the application must be dismissed.

99. I shall hear the parties as to any other orders.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: Romano Satsia Kordis Legal

Solicitor for the respondent: Legal Aid Commission (ACT)

Solicitor for the intervener: Australian Capital Territory Government Solicitor

Human Rights Amendment Act 2008(ACT)

Rights Amendment Act 2008

Procedures Rules 2006

Human Rights Amendment Act 2008(ACT)

Rights Amendment Act 2008

Procedures Rules 2006

Hakimi v Legal Aid Commission

At a glance

Court

Decision date

Source

Judgment (167 paragraphs)

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48 (12 May 2009)

Parties

Legislation Cited (12)

Cases Cited (8)