Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial

By Flynn, Asher; Hodgson, Jacqueline et al. | Melbourne University Law Review, August 2016 | Go to article overview

Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial


Flynn, Asher, Hodgson, Jacqueline, McCulloch, Jude, Naylor, Bronwyn, Melbourne University Law Review


CONTENTS  I Introduction II Human Rights and the Right to a Fair Trial III Victorian Challenges to Legal Aid Policy   A The Dietrich Decision   B Restricting Funding for Instructing Solicitors   C Chaouk   D MK   E The Third Case   F The Interlocutory Appeal IV Fair Trial Beyond the Criminal Trial   A Why Legal Aid Matters Pre-Trial   B Why Legal Aid Matters Pre-Charge V European Court of Human Rights: Salduz v Turkey   A The Salduz Solution: A Question of Legal Aid? VI Conclusion 

I INTRODUCTION

Across Western nations, restrictions on the provision of legal aid, coupled with changes to crime control and social welfare policies have significantly increased demand for legal services, while simultaneously increasing the extent of unmet legal need. This shift in government priorities has combined with a reduction in investment across every stage of the legal process to produce a potential storm of injustice. In Australia, financial restrictions and changes to the eligibility and accessibility of legal services across all jurisdictions have impacted significantly on the provision of legal aid, the allocation of resources to community legal centres (which provide free legal services to the poor and disadvantaged), (1) and the types of legal aid programs and policy agendas that can be funded. Elsewhere, reductions in government funded legal services across civil and criminal legal systems have similarly become commonplace. In England and Wales for example, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) c 10 ('LASPO') was introduced in 2012 with the specific aim of cutting the legal aid budget by 350 million [pounds sterling]. (2) The complexities surrounding legal aid funding are fuelled by vexed questions: namely, who most deserves legal aid? In the context of finite funding and expanding demands, on what criteria are priorities decided? And who decides those criteria? (3)

In this article, we argue that access to legal aid is necessary in order to ensure the effective availability of legal counsel, and so, the accused's right to a fair trial. A key determinant in answering the above questions, therefore, is the way in which the concept of fair trial is defined and interpreted. In particular, we consider whether international developments in both access to legal aid for criminal trials, and the extension of access to legal aid and legal representation for pre-trial procedures, can and should inspire change in Victoria. That is, we question whether the right to a fair trial as defined in international (or even domestic) human rights instruments can and should be invoked in the Victorian courts to challenge restrictive access to counsel and legal aid provision.

The right to a fair trial is set out in international as well as regional legal instruments, such as the International Covenant on Civil and Political Rights ('ICCPR'), (4) and refers to core principles including the presumption of innocence, the right to know the nature of the accusation against the accused, and the ability to challenge that accusation effectively in a fair and public hearing by an independent and impartial tribunal. (5) In this context, legal representation is central to the right to a fair trial. The ICCPR is not itself part of Australian domestic law, but related international jurisprudence is relevant to the interpretation of the two human rights instruments introduced in Australian jurisdictions: the Human Rights Act 2004 (ACT), and--a primary focus of this article--the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter'), (6) both of which include fair trial rights.

Inextricably linked to the right to counsel is the accessibility of legal aid. Without access to legal aid, the right to counsel becomes meaningless for many accused persons, as it may prevent them from accessing a lawyer to defend themselves against the charges they face. This argument is recognised in the qualified right to legal aid included in definitions of fair trial in international instruments such as the ICCPR, (7) and the European Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR'). …

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