Australia’s justice system is not able to ensure the rule of law is accessible to everyone.
The observation came from Morry Bailes, Law Council of Australia president, in the inaugural “Justice State of the Nation” address. Bailes and the society’s immediate past president, Fiona McLeod SC, delivered the address at the National Press Club in Canberra.
The Law Council represents more than 65,000 lawyers, a group of people bound by long-held professional values and their duty to the court to uphold the rule of law and always act with integrity, Bailes said.
The nation also has a strong and independent judiciary and “the rule of law has been tested and not found wanting,” she said. The Law Council is also robust, as it not only understands the challenges and issues of the day, but actively seeks and advocates for the solutions, the president said.
However, Bailes said that the nation’s “longstanding reputation as a fair, open-hearted and prosperous country with a strong legal system has distracted us from an uncomfortable truth: the growing numbers of people unable to access justice who are excluded from that system and thus from equality before the law.
“The people who are cut off include the most disadvantaged and impoverished among us, but also the growing numbers in the ‘missing middle’. These are the ordinary working people who cannot afford legal representation for everyday legal concerns such as commercial matters, family law, injury compensation,” she said. “Those in the ‘missing middle’ would never be able to qualify for legal aid assistance so they fall through the cracks in our justice system. That’s why the work of the Law Council is now more important than ever.”
Bailes said that members of the profession “must bring our strongest and most measured arguments to the table to defend the rule of law and the rights and freedoms we all assume we have by virtue of being Australian.”
The president also outlined the Law Council’s priorities for the next 12 months. These priorities include being a trusted adviser to Parliament on key legislative matters, defending an independent judiciary, and working to safeguard the future of the legal profession. The peak lawyer body will also continue to study and advocate for solutions to issues affecting aboriginal and Torres Strait Islander peoples, as well as rural, regional, and remote communities.
“Rigorous advice to Parliament”
“Providing rigorous advice to Parliament will always be one of the Law Council’s key strategic responsibilities,” Bailes said. “We’ve built relationships of trust with Parliamentarians. There are a large number of bills currently before them and we will continue to engage and offer counsel to ensure strong legal outcomes.”
Pending legislation includes those that affect national security, foreign interference, changes to family and immigration law, welfare reforms, and the national redress scheme for survivors of institutional child sexual abuse.
They also include laws covering charities and non-for-profit organisations, which may impinge on the freedom of speech. Pending laws also cover major new criminal offence provisions, as well as bankruptcy and tax.
“We’ll continue to call for a national action plan on business and human rights and a Modern Slavery Act,” Bailes said. “We’ll be working on a national action plan on business and human rights and continue our advocacy for a Modern Slavery Act.”
Defending an independent judiciary
The Law Council will always defend an independent judiciary, Bailes said, adding that it is one of the fundamental principles of the legal profession and the nation’s democracy.
“An independent, impartial and competent judiciary and an ethical legal profession are essential to upholding the rule of law and facilitating access to justice,” Bailes said. “The judiciary must always be allowed to perform its duty without executive interference and unwarranted criticism. We will also continue to work to protect the future of our profession.”
The comment comes after the judiciary has been repeatedly attacked by politicians, which has prompted legal organisations including the Law Council to rise to its defence.
Safeguarding the future of the profession
To safeguard the future of the legal profession, the Law Council will continue to address the problems of overloaded courts, chronic funding shortfalls, and a lack of legal services, particularly in rural, regional, and remote Australia, Bailes said.
“It is also how we protect and preserve professional values and the rule of law in a changing world; how to adapt to innovations such as technological change without compromising our integrity and the fundamental principles that underpin all our work,” she said.
The “catastrophic over-incarceration of Aboriginal and Torres Strait Islander peoples” is a situation that shames the country’s legal community, Bailes said.
“Current figures include alarming increases in the imprisonment of Aboriginal and Torres Strait Islander women and people on remand,” she said. “Defending the rights of Indigenous Australians will always be one of the central tenets of our work. We will continue to work closely with elders and communities, advocating for them to have control over solutions they themselves know will work.”
The Law Council will continue to examine contributing factors such as bail and parole conditions, mandatory sentencing, and early intervention. It will also advocate for an inter-governmental strategy to reduce rates of indigenous incarceration of young people, men and women.
Bailes said that the council will be a strong voice in the fight for recognition of indigenous peoples and the recommendations of the Uluru statement and continue to advocate for the implementation of the recommendations of the royal commission on the protection and detention of children in the northern territory.
“Most importantly, we will advocate for the inclusion of justice targets in the closing the gap strategy. Success should be measured by outcomes, not the money spent,” she said. “There’s simply no room for compromise or delay on this very basic issue of human rights in a modern Australia. “
Serious regional, rural, and remote communities issue
While 30% of Australians live outside major centres, only about 10% of legal practitioners operate in these regional, rural, or remote areas. This is a serious issue, Bailes said.
She said that lawyers working in many non-city locations are relying on the council as they try to make their services more comprehensive.
The Law Council may need to develop minimum servicing standards in the bush, as well as well as find more ways to support young lawyers, including instituting mentoring and placement schemes, Bailes said.
“Like rural doctors, nurses, paramedics, the police, teachers, and emergency services, solicitors and barristers in these areas work hard and often alone. These people deserve our recognition, our support, and our gratitude,” she said. “Without them, the framework of our civic life would cease to function. Their capacity to continue to deliver their care and services to rural people is directly linked to tackling disadvantage.”
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