InBrief

Law reform and public affairs

Minister Dutton is wrong - lawyers act pro bono because legal representation is not only for the powerful or popular

It was disappointing that the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, agreed with a proposition this week that lawyers acting on a pro-bono basis for refugees are “un-Australian”. It would be troubling if it was to become the norm in Australia for the legal profession to have to remind our elected members of parliament that legal representation should be available not just to the powerful or the popular. Solicitors and barristers defend the rights of all. If that were not so, unpopular people - and that may include politicians from time to time- would be left without representation in courts. Justice would not be done, let alone be seen to be done.

Similarly, it should not be necessary for the legal profession to remind ministers of the Crown that, whatever the merits of a policy that denies asylum seekers who arrive by sea the possibility of resettlement in Australia, the people detained on Manus Island and Nauru are in the care of the Australian Government. More pertinently, they are in the care of Minister Dutton. As such, the Minister and the Government are accountable for their actions under Australian and international law. If transparency and accountability can be denied in respect of the duty of care towards those detainees by attempting to discourage lawyers from acting for the detainees, then the application of principles underpinning good governance and adherence to the law are under threat. Questioning the motives of lawyers appearing in cases in which Minister Dutton is the respondent certainly doesn’t help as it may give the appearance of wishing to undermine the accountability that such proceedings can foster.

In fact, what concerned lawyers was hearing a minister of the Crown disparaging the motives of barristers and law firms doing pro-bono work. There are three reasons for this.

First, to appear pro bono for the weak and marginalised is the finest tradition of the legal profession. Sir Owen Dixon, described by Sir Anthony Mason as “Australia’s greatest lawyer” said at his swearing in as Chief Justice of the High Court “…it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak…”. Robert French AC, our former Chief Justice, gave a speech in Darwin on 18 May 2017 as part of Law Week and made the point that if individuals did not have access to legal representation, then the rule of law in Australia was diminished. Nothing could better represent Australian values than to appear, pro bono, on behalf of the poorest, most disadvantaged and marginalised people. Barristers and law firms undertake significant legal assistance work not only for refugees but also for the general community in Australia. These barristers and solicitors should be applauded for this, not criticised.

Secondly, Minister Dutton’s comments were particularly disappointing because a great deal of the pro bono work currently done by barristers and law firms is necessitated by harsh cuts to Commonwealth funding for legal aid. It has reached the point where federal funding is virtually non-existent in relation to matters that do not involve crime.

At the NSW Bar, barristers have contributed approximately 51,500 hours of work to the Bar Association’s Legal Assistance Referral Scheme since its inception in 1994. Under the Association’s duty barrister arrangements, members contribute 8000 hours a year attending every sitting day at the Downing Centre and John Maddison Tower to provide advice to unrepresented litigants in the Local and District Courts.

However these figures are just the tip of the iceberg. Individual barristers contribute countless hours of pro bono work of their own motion, for individuals, local clubs and other not for-profit organisations.

The attempt by the Minister to impugn the motives of the barristers, solicitors and large law firms in undertaking pro bono work was unfounded and should not have been made.

Finally, it would seem that the Minister was not aware of the views of the Commonwealth Attorney-General Senator, the Hon George Brandis QC. At the National Association of Community Legal Centres Conference 2017, Canberra on 11 August 2017 the Attorney General praised the pro bono work of Australian lawyers. He said: "[T]he community service you perform for distressed people, the most vulnerable people in our community, is of particular importance. It is of unique social importance. The government, governments of both persuasions and at all levels, support you where we can. We will continue to support you and in supporting you, we pay tribute to and respect to the work that you do."

Barristers, like law firms who do pro bono work, should be recognised rather than criticised for providing assistance to the court in determining matters. This leads to the proper representation of individuals and the efficient conduct of proceedings. It is hoped that the minister will consult the Attorney General the next time he is considering making assertions about the legal profession in order to ensure he has a proper understanding of the work of the legal profession and its role within the justice system.