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Olaf Dietrich

Olaf Dietrich

Dietrich v The Queen was an important case decided in the High Court of Australia on November 13 1992. It concerned the nature of the right to a fair trial, and under what circumstances indigent defendants (defendants who cannot afford legal representation) should be provided with legal aid by the state. The case determined that although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented. It is an important case in Australian criminal law, and also in Australian constitutional law, since it is one of a number of cases in which some members of the High Court have found implied human rights in the Australian Constitution.

Background to the case

On 17 December 1986, the accused, Olaf Dietrich, flew from Bangkok, Thailand to Melbourne Airport. He had imported at least seventy grams of heroin, which he concealed within condoms that he had swallowed. He was arrested the next morning by the Australian Federal Police, who searched his flat and found one of the condoms in the kitchen, and some heroin in a plastic bag under a rug in another room. He was taken into custody, and passed the remainder of the condoms during the night at the hospital in Pentridge Prison. Dietrich alleged that the drugs had been planted by the police. Dietrich was tried in the County Court of Victoria in 1988 for a trafficking offence under the Customs Act 1901. The trial lasted about 40 days, and during this time the accused did not have legal representation. Although he had applied to the Legal Aid Commission of Victoria for assistance, they said that they would only help him if he pleaded guilty, an option which Dietrich did not want to take. He applied to the Supreme Court of Victoria for legal assistance, but was again turned down since he had waited more than fourteen days to apply. He was convicted in the County Court, and tried to appeal to the Supreme Court. After that court refused to hear his appeal, he sought leave to appeal to the High Court of Australia.

Arguments

Dietrich's main argument was that his trial was a miscarriage of justice, since he did not have legal representation. He argued that he should have been provided with counsel at public expense, given the seriousness of the crime with which he was charged. Alternatively, he argued that the judge should have stayed or adjourned the trial until he was able to obtain counsel himself. His argument was based on the common law tradition that an accused is entitled to a fair trial. common law.]]

The right to a fair trial

Dietrich suggested three different sources in law for the right to counsel that he asserted. The first was section 397 of the Victorian Crimes Act 1958, which provides that "every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by legal practitioner". However, the court found that this provision only means that an accused is entitled to counsel paid for by themselves or someone else, and not counsel provided by the state. The second source that Dietrich proposed was Australia's obligations under international law, particularly under the United Nations International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Article 14(3) of the Covenant provides that an accused should have legal assistance provided for them "in any case where the interests of justice so require". Article 6 of the European Convention of Human Rights, to which Australia is not a party, also guarantees that defendants should be provided with legal aid "when the interests of justice so require". Australia has not incorporated the ICCPR into its domestic law with any specific legislation, unlike some other international treaties, such as World Heritage treaties (see Commonwealth v Tasmania). However, Dietrich argued that the common law of Australia should be developed in accordance with the principles in the ICCPR, as well as other international treaties to which Australia is a party. This is the approach used in the United Kingdom, in relation to decisions of the European Court of Human Rights, for example. But the court pointed out that this practice was usually done in relation to interpreting legislation, and in this case the court was being asked "to declare that a right which has hitherto never been recognised should now be taken to exist." The third source that Dietrich suggested was a group of similar cases in other common law countries such as the United States and Canada. In the United States, the right to counsel was guaranteed in the Sixth Amendment to the United States Constitution, part of the United States Bill of Rights. The Amendment says that "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." However, this did not necessarily mean that counsel had to be provided by the state. In the case of Powell v. Alabama in 1932, the United States Supreme Court held that the court must provide counsel to defendants in capital trials, that is trials where capital punishment was a possible sentence, if the defendants were too poor to afford their own counsel. In Johnson v. Zerbst (1938), the Supreme Court expanded this principle to cover all federal trials, and in Gideon v. Wainwright (1963) the Court held that under the Fourteenth Amendment, the principle also applied to State courts. More recently, the Supreme Court has recognised the right of people to have counsel at other stages of criminal investigations. For example, the court has affirmed the right of indigent defendants to have counsel provided for them in interrogation after they have been arrested (Miranda v. Arizona), and for line-ups (United States v. Wade). In Canada, Section Ten of the Canadian Charter of Rights and Freedoms guarantees the right "to retain and instruct counsel without delay and to be informed of that right", and Canadian case law has found that as a corollary of this right, there is a right to legal aid. Although it is common for Australian courts to acknowledge developments in other common law countries, including the United States and Canada, the law in those countries on the right to counsel were based on particular provisions of the Constitutions or Bills of Rights of those countries. Australia did not, and still does not, have any such provisions of rights in either the Constitution or in legislation. The High Court also pointed out that when interpreting the legislation which established legal aid services, Australian courts did not recognise an absolute right to counsel in all circumstances. The court also raised the question of what a right to counsel would actually mean in practice, that is, would a right to counsel at public expense entitle a person to counsel of a certain degree of experience? Moreover, the court suggested that having a right to representation would necessarily imply that a trial conducted without the accused being legally represented would necessarily be unfair, an idea which has been rejected by the Australian courts. The accused must have lost a "real chance of acquittal" before a trial can be regarded as unfair. Essentially, Australian common law recognised a right to a fair trial, but the question of whether the lack of representation caused an unfair trial had to be based on the particular circumstances of each case.

Miscarriage of justice

Dietrich's other argument was that the trial judge should have used discretionary powers and granted an adjournment until Dietrich was able to provide counsel himself, and that the failure to do so caused a miscarriage of justice. Dietrich had asked the trial judge for an adjournment during the trial, but the judge said that since more than a year had passed since the offence occurred, it was in the interests of the community that the matter be dealt with promptly. The High Court said that the trial judge did not seem to be aware that he had the authority to adjourn the trial. Another factor which complicated the case was that although the jury found Dietrich guilty of importing the heroin in the condoms, they found him not guilty of owning the heroin which had been hidden in a plastic bag. For the High Court, this uncertainty meant that it was possible that Dietrich could also have been acquitted of the other charges, if he had been legally represented.

Judgment

By a majority of five to two, the High Court decided that although there was no right at common law to have publicly provided legal representation in all cases, in some cases representation is appropriate to ensure a fair trial. Although judges no longer have the power to appoint counsel for an accused, since that function has been largely taken over by legal aid agencies, a trial judge should use their power to adjourn a case if it is in the interests of fairness that an accused have representation, which would encourage the legal aid agencies to provide counsel. Two of the judges, Justice Deane and Justice Gaudron, went further and suggested that the right to representation in some circumstances is founded in the Constitution. They said that Chapter Three of the Constitution, which establishes the separation of powers, and vests judicial power exclusively in the courts, requires that judicial process and fairness be observed. Another two judges, Justice Brennan and Justice Dawson, dissented, arguing that it would not be proper for judges to use their power to adjourn trials in order to put pressure on the various legal aid agencies to change their decisions. Moreover, the trial judges had explicitly told the jury on several occasions to take into account the fact that Dietrich was unrepresented.

Consequences

The High Court ordered that the verdict of the original trial be overturned, and that a retrial be conducted. However, there was never any retrial since Dietrich had already served his sentence. Dietrich was released on parole in July 1990, and he quickly changed his name to Hugo Rich. He has subsequently been jailed for a range of offences including armed robbery and threatening to kill a detective. As of 2005, Rich is in Port Phillip Prison, awaiting trial on firearm charges. He is also being investigated for the murder of security guard Erwin Katsenberger during an armed robbery in Blackburn North, Victoria on March 8 2005. The case reinvigorated debate about who should be provided with legal aid. Although there are no precise figures about the effect of the decision on legal aid budgets, a Senate inquiry determined that the decision had the potential to divert legal aid funding towards criminal cases at the expense of civil or family law matters. However, legal aid funds across the country noted that the Dietrich principles had not yet had any significant impact on the budgets of the legal aid funds. The Government of Victoria, under Premier Jeff Kennett, suggested to the inquiry that the principle would lead to delays in trials and would undermine the credibility of the legal system. As such, the Parliament of Victoria passed legislation amending the Crimes Act 1958 to allow judges to directly order that legal aid funding be granted, rather than to simply order a stay. However, the impact of this legislation is uncertain, since Victoria Legal Aid told the Senate inquiry that in most cases where a judge ordered that funding be granted, they would have done so anyway.

References

# # # # # # # #

External links


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- Category:High Court of Australia cases Category:Australian criminal law Category:1992 in law

High Court of Australia

The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and interprets the Constitution of Australia. The High Court is mandated by Section 71 of the Constitution, which vests the judicial power of the Commonwealth of Australia in it. The court was constituted in 1903 by the Judiciary Act 1903.

Role of the court

Judiciary Act 1903 The High Court exercises both original jurisdiction (cases which originate in the High Court) and appellate jurisdiction (appeals made to the court from other courts).

Original jurisdiction

The original jurisdiction of the High Court refers to matters which are originally heard in the High Court. The Constitution confers actual (section 75) and potential (section 76) original jurisdiction. Section 75 of the Constitution confers original jurisdiction in regard to "all matters":
- (i) arising under any treaty
- (ii) affecting consuls or other representatives of other countries
- (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:
- (iv) Between States, or between residents of different States, or between a State and a resident of another State:
- (v) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth The conferral of original jurisdiction creates some problems for the High Court. For example, immigration-related decisions are often brought against an officer of the Commonwealth within the original jurisdiction of the High Court. Section 76 provides that Parliament may confer original jurisdiction in relation to matters:
- (i) arising under the constitution or involving its interpretation
- (ii) arising under any laws made by the Parliament
- (iii) of admiralty and maritime jurisdiction
- (iv)relating to the same subject-matter claimed under the laws of different states admiralty Constitutional matters, referred to in s76(i), have been conferred to the High Court by section 30 of the Judiciary Act 1903. However, the inclusion of constitutional matters in s76, rather than section 75, means that the High Court’s original jurisdiction regarding constitutional matters could be removed. In practice, section 75(iii) (suing the Commonwealth) and s75(iv) (conflicts between states) are broad enough that many constitutional matters would still be within jurisdiction. The original constitutional jurisdiction of the High Court is now well established: the Australian Law Reform Commission has described the inclusion of constitutional matters in s76 rather then s75 as "an odd fact of history." The 1998 constitutional convention recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament. Failure to proceed on this issue suggests that it was considered highly unlikely that Parliament would ever take this step. The requirement of "a matter" in section 75 and section 76 of the constitution means that a concrete issue must need to be resolved, and the High Court cannot give an advisory opinion.

Appellate jurisdiction

The High Court's appellant jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the States, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia), and from decisions made by one or more Justices exercising the original jurisdiction of the court. However, section 73 allows the appellant jurisdiction to be limited "with such exceptions and subject to such regulations as the Parliament prescribes". Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903. This requires "special leave" to appeal. Special leave is only granted where a question of law is raised which is of public importance; or involves a conflict between courts; or "is in the interests of the administration of justice". Therefore, while the High Court is the final court of appeal it cannot be considered to be a general court of appeal.

The High Court and the Privy Council

Judiciary Act 1903 The issue of appeals from the High Court to the Privy Council was a significant one during the drafting of the Constitution, and it continued to be significant in the years after the court's creation. The final wording of section 74 prohibited appeals on constitutional matters involving disputes about the limits inter se of Commonwealth or state powers (about), except where the High Court certified the appeal. It did so only once, in the case of Colonial Sugar Refining Co v Attorney-General (Commonwealth). After that case, in which the council refused to answer the constitutional questions put to it, the High Court never certified another inter se appeal. Indeed, in the case of Kirmani v Captain Cook Cruises Pty Ltd, in 1985, the court said that it would never again grant a certificate of appeal. In general matters however, section 74 did not prevent the Privy Council from granting leave to appeal against the High Court's wishes, and the council did so often. In some cases, the council acknowledged that the Australian common law had developed differently from English law, and thus did not apply its own principles (for example, in Australian Consolidated Press Ltd v Uren, or in Viro v The Queen), by using a legal fiction which stated that different common law can apply to different circumstances. However, in other cases, the Privy Council enforced its decisions, overruling decisions by the High Court. In Parker v The Queen, for example, Chief Justice Owen Dixon led a unanimous judgment which rejected a decision by the House of Lords in DPP v. Smith, saying that "I shall not depart from the law on this matter as we have long since laid it down in this Court and I think that Smith's case should not be used in Australia as authority at all." Section 74 did provide that the parliament could make laws to close of appeals to the council, and it did so, beginning in 1968, with the Privy Council (Limitation of Appeals) Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council (Appeals from the High Court) Act 1975 was passed, which had the effect of closing all routes of appeal from the High Court. In 1986, with the passing of the Australia Acts by both the Imperial Parliament and the Parliament of Australia (with the ratification of the States), all appeals to the Privy Council were cut off, including appeals from state courts.

History

The genesis of the court can be traced back to the mid 19th century. Following Earl Grey's 1846 proposal for federation of the Australian colonies, a 1849 report from the Privy Council of the United Kingdom suggested that a national court be created. As early as the 1860s, politicians in the Australian colonies advocated the creation of an inter-colonial court, which would allow appeals to be heard in Australia. Before the establishment of the High Court, appeals from the state Supreme Courts could only be made to the Judicial Committee of the Privy Council, which involved the great expense of physically travelling to London. In 1880, an inter-colonial conference was convened, which proposed the establishment of an Australasian Court of Appeal. Judges from the state Supreme Courts would serve one-year terms on the new court, with one judge from each colony at a given time. However, the proposal retained appeals from state Supreme Courts to the Privy Council, and was soon abandoned.

Constitutional Conventions

1880.]] The Constitutional Conventions of the 1890s, which met to draft an Australian Constitution, also raised the idea of a federal Supreme Court. Initial proposals at a conference in Melbourne in February 1890 led to a convention in Sydney in March and April 1891, which produced a draft constitution. The draft included the creation of a Supreme Court of Australia, which would not only interpret the Constitution, like the United States Supreme Court, but would also be a court of appeal from the state Supreme Courts. The draft effectively removed appeals to the Privy Council, only allowing them if the British monarch gave leave to appeal, and not allowing appeals at all in constitutional matters. This draft was largely the work of Samuel Griffith, then the Premier of Queensland, later Chief Justice of Queensland and the first Chief Justice of Australia. Other significant contributors to the judicial clauses in the draft included Attorney-General of Tasmania Andrew Inglis Clark, who had prepared his own constitution prior to the convention. Inglis Clark's most significant contribution was to give the court its own constitutional authority, ensuring the separation of powers; the original formulation from Griffith, Edmund Barton and Charles Kingston only provided that the parliament could establish a court. Charles Kingston.]] At the later conventions, in Adelaide in 1897, in Sydney later the same year and in Melbourne in early 1898, there were changes to the earlier draft. In Adelaide, the name of the court was changed from Supreme Court of Australia to High Court of Australia. Many people also opposed the new court completely replacing the Privy Council. Many large businesses, particularly those which were subsidiaries of British companies or regularly traded with the United Kingdom, preferred for business reasons to keep the colonies under the unified jurisdiction of the British courts, and petitioned the conventions to that effect. Some politicians, such as Dibbs, supported the petitioners, but others, including Alfred Deakin, supported the design of the court. Despite the debate, the portions of the draft dealing with the court remained largely unchanged, as the delegates focused on different matters. When the draft was approved by the colonies, it was taken to London in 1899, for the assent of the British Imperial Parliament. The Secretary of State for Colonial Affairs, Joseph Chamberlain, had altered the draft, allowing much wider rights of appeal to the Privy Council. After much negotiation, a compromise was reached, in the form of the current text of section 74, which allows the monarch to grant leave to appeal, and allowed some appeals directly from state Supreme Courts (a right which has subsequently been removed).

Formation of the court

The Constitution was passed by the Imperial Parliament, and came into effect on 1 January 1901. However, the High Court was not established straight away; it was necessary for the Parliament to make laws about the structure and procedure of the court. Some of the members of the First Parliament, including Sir John Quick, then one of the leading legal experts in Australia, opposed legislation to set up the court. Even Henry Higgins, who was himself later appointed to the court, objected to setting it up, on the grounds that it would be impotent while Privy Council appeals remained, and that in any event there was not enough work for a federal court to make it viable. In 1902, the then Attorney-General Alfred Deakin introduced the Judiciary Bill 1902 into the parliament. Although Deakin and Griffith had produced a draft bill as early as February 1901, it was continually delayed by opponents in the parliament. The success of the bill is generally attributed to Deakin's passion and effort in pushing the bill through the parliament despite this opposition. Deakin had proposed that the court be constituted of five judges, specially selected to the court. Opponents proposed that the court should be made up of state Supreme Court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before. Deakin eventually negotiated amendments with the opposition, reducing the number of judges from five to three, and eliminating financial benefits such as pensions. opposition, is administered the judicial oath at the first sitting of the High Court, in the Banco Court of the Supreme Court of Victoria, 6 October 1903.]] At one point, Deakin even threatened to resign as Attorney-General due to the difficulties he faced. In what is now a famous speech, Deakin gave a second reading to the House of Representatives, lasting three and a half hours, in which he declared:
"The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power... It is properly termed the keystone of the federal arch... The State stands and will stand on the statute-book just as in the hour in which it was assented to. But the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. [The High Court] enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates."
Deakin's friend, painter Tom Roberts, who viewed the speech from the public gallery, declared it Deakin's "magnum opus". The Judiciary Act 1903 was finally passed on 25 August 1903, and the first three justices, Chief Justice Samuel Griffith and Justices Edmund Barton and Richard O'Connor were appointed on 5 October of that year. On the 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria.

First years of the court

After the court's first sitting in the Banco Court in Melbourne, the court continued to use that court until 1928, when a separate courtroom was built in Little Bourke Street. Also in this building was the court's principal registry. The court also sat regularly in Sydney, where it was located in an extension on the side of the Criminal Courts in the suburb of Darlinghurst. The court also travelled to other cities across the country, where it did not have any facilities of its own, but used facilities of the Supreme Court in each city. Alfred Deakin had envisaged that the court would sit in many different locations, so as to truly be a federal court. Shortly after the court's creation, Chief Justice Griffith established a schedule for sittings in state capitals: Hobart, Tasmania in February, Brisbane, Queensland in June, Perth, Western Australia in September and Adelaide, South Australia in October. It is said that Griffith established this schedule because those were the times of year he found the weather most pleasant in each city. The tradition remains to this day, although most of the court's sittings are now conducted in Canberra. Sittings were dependent on the caseload, and to this day sittings in Hobart only occur once every few years. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each. During the Great Depression, sittings outside of Melbourne and Sydney were suspended in order to save costs. During World War II, the court faced a period of change. The Chief Justice, John Latham, was the Australian ambassador to Japan from 1940 to 1941, before the commencement of the Pacific War. Justice Owen Dixon was also absent for several years, while he served as Australia's ambassador to Washington. George Rich was Acting Chief Justice in Latham's absence. There were many difficult cases concerning the federal government's use of the defence power during the war.

Post-war period

federal government From 1952, with the appointment of Owen Dixon as Chief Justice, the court entered a period of stability. After World War II, the court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court. Garfield Barwick, who was Attorney-General from 1958 to 1964, and from then till 1981 Chief Justice, proposed that more federal courts be established, as permitted under the Constitution. In 1976 the Federal Court of Australia was established, with a general federal jurisdiction, and in more recent years the Family Court and Federal Magistrates' Court have been set up to reduce the court's workload in specific areas. In the 1950s, the then Prime Minister Robert Menzies had established a plan to develop Canberra, and construct more important national buildings. In 1959, a plan featured a new building for the High Court on the shores of Lake Burley Griffin, next to the location for the new Parliament House, and the National Library of Australia. This plan was abandoned in 1968, and the location of the Parliament was moved, later settling on the present site on Capital Hill. In March 1968, the government announced that the court would move to Canberra and in 1972 a competition was held for designs. Construction began in 1975, on a site on the shore of Lake Burley Griffin, in the Parliamentary Triangle. The site is just to the east of the axis running between Capital Hill and the Australian War Memorial. The building was designed by Edwards Madigan Torzillo and Briggs Pty Ltd and constructed between 1975 and 1980. It is an unusual and distinctive structure, built in the brutalist style, and features an immense public atrium with a 24 metre high roof. The High Court building houses three courtrooms, Justices' chambers, and the Court's main registry, library, and corporate services facilities. The building was completed in 1980, and the majority of the court's sittings have been held in Canberra since then.

Recent history

In 1977, the referendum on retirement of judges was successful, which altered the Constitution to require that all High Court justices must retire when they turned seventy. In 1979, after campaigning from Chief Justice Garfield Barwick, the High Court of Australia Act 1979 was passed, granting the court the ability to manage its own affairs, including control over court personnel. In 1989, video hearings were introduced, to allow the justices in Canberra to hear cases in places such as Darwin, Northern Territory, where the court does not travel to visit. The High Court celebrated its centenary on 6 October 2003. A special session was held in the Banco Court of the Supreme Court of Victoria, where a hundred years earlier, the court had first sat.

Composition of the court

The High Court is composed of seven Justices, the Chief Justice of Australia and six other (puisne) Justices. puisne The first three justices of the High Court were:
- Chief Justice, Sir Samuel Griffith
- Justice Sir Edmund Barton
- Justice Richard Edward O'Connor There were a number of possible candidates for the first bench of the High Court. In addition to the eventual appointees, Griffith, Barton and O'Connor, names which had been mentioned in the press included two future Justices of the court, Henry Higgins and Isaac Isaacs, along with Andrew Inglis Clark, Sir John Downer, Josiah Symon and George Wise. Barton and O'Connor were both members of the federal parliament, and both from the government benches; indeed Barton was Prime Minister. Each of the eventual appointees had participated in the drafting of the Constitution, and had intimate knowledge of it. All three were described as conservative, and their jurisprudence was very much influenced by English law, and in relation to the Constitution, by United States law. In 1906, at the request of the Justices, two more seats were added to the bench, with Isaacs and Higgins the appointees. After O'Connor's death in 1912, an amendment to the Judiciary Act 1903 expanded the bench to seven. For most of 1930 two seats were left vacant, due to monetary constraints placed on the court by the Depression. The economic downturn had also led to a reduction in litigation, and consequently less work for the court. After Isaac Isaacs retired in 1931, his seat was left empty, and in 1933 an amendment to the Judiciary Act officially reduced the number of seats to six. However, this lead to some decisions being split three-all. With the appointment of William Webb in 1946, the number of seats returned to seven, and since then the court has had a full complement of seven Justices. However, the composition of the court has changed over that time. As of 2005 there have been forty-five Justices, eleven of whom have been Chief Justice. Current Justice Susan Crennan is only the second woman to sit on the bench, after Justice Mary Gaudron. More than half of the Justices, twenty-four, have been residents of New South Wales. Thirteen were from Victoria, six from Queensland and two from Western Australia. No Justices have been residents of South Australia or Tasmania, or any of the territories. The majority of the justices have been from Protestant backgrounds, with a smaller number from Catholic backgrounds. Sir Isaac Isaacs was of Jewish background, the only representative of any other faith.

Appointment process

Jewish Appointments are officially made by the Governor-General in Council. In practice, appointees are nominated by the Prime Minister, on advice from the Cabinet, particularly from the Attorney-General. For example, four Justices were appointed while Andrew Fisher was Prime Minister, but it was largely on Attorney-General Billy Hughes' authority that the candidates were chosen. The appointment process stands in stark contrast with the highly public selection and confirmation process for justices of the Supreme Court of the United States. While there are people who are critical of the secrecy of the process, and who advocate a more public methods for appointments, there are relatively few who dispute the quality of appointees. Although three of the Chief Justices (Adrian Knox, John Latham and Garfield Barwick) were conservative politicians at the time of their appointment, and were appointed by conservative governments, their political views are not considered to have interfered with their performance on the court, and their talent is rarely questioned. However, there is frequent criticism of Barwick's intervention in the Australian constitutional crisis of 1975, when he gave advice to Governor-General John Kerr.

References


- Role of the court # http://www.austlii.edu.au/au/other/alrc/publications/reports/92/ch12.html#Heading7 # # #
- History # # # # # # # Parliamentary Debates, 1902. #
- Other :
- Blackshield, Coper & Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) ISBN 0195540220

See also


- Australian court hierarchy
- Judiciary Act 1903
- Judiciary of Australia
- Law of Australia
- List of High Court of Australia cases
- List of Judges of the High Court of Australia

External links


- [http://www.hcourt.gov.au Official High Court of Australia website] Category:Australian law Australia Category:Australian courts Category:Buildings and structures in Canberra Category:Brutalist structures Category:Australian constitutional law

1992

1992 (MCMXCII) was a leap year starting on Wednesday.

Events

January


- January 1 - Boutros Boutros-Ghali of Egypt replaces Javier Pérez de Cuéllar of Peru as United Nations Secretary-General
- January 1 - George H. W. Bush becomes the first President of the United States to address the Australian Parliament.
- January 8 - Bosnian Serbs declare their own republic within Bosnia-Herzegovina in protest to the decision by Bosnian Muslims and Bosnian Croats to seek EC recognition.
- January 8 - George H. W. Bush falls violently ill in the presence of the Prime Minister of Japan.
- January 11 - Paul Simon is the first major artist to tour South Africa after the end of the cultural boycott.
- January 12 - The second round of Algeria's general elections is cancelled when the first round is favorable to the Islamic Salvation Front.
- January 13 - Japan apologizes for forcing Korean women into sexual slavery during World War II.
- January 13 - Jeffrey Dahmer pleads guilty but insane to the murders of 15 young men and boys.
- January 15 - The Socialist Federal Republic of Yugoslavia ceases to exist. Slovenia and Croatia gain independence.
- January 16 - El Salvador officials and rebel leaders sign a pact in Mexico City that ends a 12 year civil war that claimed at least 75,000.
- January 22 - Rebel forces occupy Zaire's national radio station in Kinshasa and broadcast a demand for the government's resignation
- January 22 - STS-42: Dr. Roberta Bondar becomes the first Canadian woman in space.
- January 26 - Boris Yeltsin announces that Russia is going to stop targeting United States cities with nuclear weapons.

February


- February 1 - Chief Judicial Magistrate of Bhopal court declares Warren Anderson, ex-CEO of Union Carbide a fugitive under Indian law for failing to appear in the Bhopal Disaster case, and orders the Indian government to press for an extradition from United States
- February 7 - Signing of the Maastricht treaty, which founded the European Union.
- February 10 - In Indianapolis, Indiana boxer Mike Tyson is convicted of raping a Miss Black America contestant named Desiree Washington
- February 11 - F-16 jet crashes into a residential district of Hengelo, the Netherlands. No casualties are reported.
- February 17 - A court in Milwaukee, Wisconsin sentences Serial killer Jeffrey Dahmer to life in prison
- February 18 - Iraq disarmament crisis: The Executive Chairman of UNSCOM details Iraq's refusal to abide by UN Security Council disarmament resolutions.
- February 20 - The English FA Premier League was officially formed
- February 21 - United Nations Security Council approves Resolution 743 and decides to send UNPROFOR peacekeeping force to Yugoslavia
- February 26 - Supreme Court of Ireland rules that a 14-year-old rape victim may travel to England to get an abortion

March


- March - Boxer Mike Tyson is given a 6 year sentence for raping an 18 year old Miss Black America contestant, Desiree Washington
- March 1 - After a majority of the Bosnian Muslim and Bosnian Croat communities vote for Bosnian independence, Serb snipers fire on civilians
- March 12 - Mauritius becomes a republic while remaining a member of the British Commonwealth
- March 12 - 13 are killed and several injured when a tram-car crashes into a crowd of people at the tram-station at Vasaplatsen in Gothenburg, Sweden.
- March 13 - In eastern Turkey, an earthquake registering 6.8 on the Richter scale kills over 500.
- March 17 - 29 are killed and 242 injured when a suicide car-bomb goes off in the Israeli embassy in Buenos Aires.
- March 25 - Cosmonaut Sergei Krikalev returns to Earth after a 10-month stay aboard the Mir space station

April


- April - Bosnia and Herzegovina secedes from Yugoslavia.
- April 2 - In New York, Mafia boss John Gotti is convicted of murder of mob boss Paul Castellano and racketeering and is later sentenced to life in prison
- April 6 - Robert Schumann (record-breaker) becomes the youngest person to visit the north pole
- April 6 - Serbian troops begin to bombard Sarajevo
- April 8 - Punch magazine publishes its final issue
- April 9 - A Miami jury convicts former Panamanian ruler Manuel Noriega of assisting Colombia's cocaine cartel
- April 9 - United Kingdom general election - John Major unexpectedly re-elected.
- April 10 - IRA bomb explodes in the Baltic Exchange in the City of London - 3 dead, 91 injured
- April 13 - Flooding in downtown Chicago, Illinois
- April 13 - Roermond in the Netherlands is rocked by an earthquake along the Peel Fault.
- April 14-October 15 - The trial of the Russian serial killer Andrew Chikatilo - he is sentenced to death
- April 21 - Maria Vladimirovna of Russia succeeds her father as Head of the Imperial Family of Russia and Titular Empress and Autocrat of all the Russias.
- April 22 - Fuel that has leaked into sewer explodes in Guadalajara, Mexico - 215 dead, 1500 injured
- April 27 - Betty Boothroyd elected the first woman to be Speaker of the British House of Commons.
- April 29 - In Los Angeles, California, the police officers that were accused of excessive force in their severe beating of Rodney King, were found "not guilty". The verdict resulted in several days of riots in L.A. and smaller riots around the country.

May


- May 5 - Alabama ratifies a 202-year-old proposed amendment to the United States Constitution making the 27th Amendment law. This amendment bars the U.S. Congress from giving itself a midterm or retroactive pay raise
- May 5 - Russian leaders in Crimea declare their separation from Ukraine as a new republic. They withdraw the secession on May 10
- May 10 - Team of Sweden wins the Ice Hockey World Championships in Prague
- May 15 - The Genoa Expo '92 World's Fair opens in Genoa, Italy
- May 16 - STS-49: Space Shuttle Endeavour lands safely after a successful maiden voyage
- May 19 - Amy Fisher shoots at Mary Jo Buttafuoco
- May 23 - Mafia bomb kills Italian anti-mafia judge Giovanni Falcone
- May 26 - Charles Geschke, President of Adobe Systems is kidnapped from his company car park. Kidnappers demand ransom for $650,000 - they are later apprehended

June


- June 1 - Terrorist Carlos (the Jackal) is sentenced to life imprisonment
- June 1 - Kentucky celebrates its bicentennial statehood.
- June 1 - The Pittsburgh Penguins sweep the Chicago Blackhawks in 4 games in the 1992 Stanley Cup Finals.
- June 8 - The first World Ocean Day celebrated, coinciding with the Earth Summit held in Rio de Janeiro, Brazil.
- June 12 - Medical doctor Pravin Thakkar is sentenced for 16 years for aborting fetuses of two of his former lovers without their permission
- June 15 - During a spelling bee at a Trenton, New Jersey elementary school, U.S. Vice President Dan Quayle corrects a student's spelling of the word potato by indicating it should have an e at the end.
- June 17 - A 'Joint Understanding' agreement on arms reduction is signed by U.S. President George H.W. Bush and Russian President Boris Yeltsin (this would be later codified in START II). [http://www.fas.org/nuke/control/start2/]
- June 22 - Two skeletons excavated in Yekaterinburg are identified as Czar Nicholas II and his tsarina
- June 23 - Mafia boss John Gotti is sentenced to life in prison after being found guilty of conspiracy to commit murder and racketeering on April 2 [http://www.crimelibrary.com/gangsters_outlaws/mob_bosses/gotti/don_24.html?sect=15]
- June 26 - Denmark beat Germany 2-0 to win Euro 92 at Ullevi Stadium in Gothenburg, Sweden.
- June 29 - Bodyguard assassinates president Mohammed Boudigh of Algeria

July


- July 6-29 - Iraq disarmament crisis: Iraq refuses a U.N. inspection team access to the Iraqi Ministry of Agriculture. UNSCOM claimed that it had reliable information that the site contained archives related to illegal weapons activities. U.N. Inspectors stage a 17-day "sit-in" outside of the building, but leave when their safety is threatened by Iraqi soldiers
- July 10 - In Miami, Florida, former Panamanian leader Manuel Noriega is sentenced to 40 years in prison for drug and racketeering violations
- July 13 - Britain's former executioner Albert Pierrepoint dies
- July 20 - Václav Havel resigns as president of Czechoslovakia
- July 22 - Near Medellín, Colombian drug lord Pablo Escobar escapes from his luxury prison fearing extradiction to the United States.
- July 25 - Summer Olympic Games in Barcelona, Catalonia, Spain

August


- August 7 - Buckingham Palace opened to the public for the first time
- August 10 - The UK government bans Ulster Defence Association, a loyalist paramilitary organisation that had been legal for twenty years.
- August 17 - US Marshalls start Siege of Ruby Ridge
- August 18 - Wang Laboratories files for bankruptcy
- August 20 - Kristiansunds connection to the main land of Norway, Krifast, opens.
- August 24 - Hurricane Andrew hits South Florida.
- August 28 - Hurricane Andrew dissipates over the Tennessee valley when it merges with a storm system. Twenty-three were killed.

September


- September 11 - Hurricane Iniki hits the Hawaiian Islands, Kauai and Oahu
- September 16 - Pound Sterling and Italian Lira forced out of the European Exchange Rate Mechanism (Black Wednesday)
- September 23 - A large IRA bomb destroys the forensic laboratories in Belfast
- September 24 - The Kentucky Supreme Court in Kentucky v. Wasson holds that laws criminalizing same-sex sodomy are unconstitutional, and accurately predicts that other states and the nation will eventually rule the same way.

October


- October 1 - Pittsburgh International Airport's new facility is opened in Findlay Township, near Pittsburgh, Pennsylvania The new terminal's were built as an expansion for US Air and an upgrade from the older Pittsburgh International Airport facility.
- October 2 - Riot in the Carandiru prison system in São Paulo, Brazil, which leads up to the events known as the Carandiru Massacre.
- October 4 - Plane crash in Amsterdam, Netherlands, known as the Bijlmerramp.
- October 7 - In Turkey, the farmer Tevfik Esenç, the last fluent speaker of the Ubykh language, dies.
- October 9 - A 13-kilogram (29-pound) meteorite landed in the driveway of the Knapp residence in Peekskill, New York destroying the family's 1980 Chevrolet Malibu.
- October 15 - In Russia, Andrei Chikatilo is found guilty of 52 serial murders.
- October 17 - Yoshihiro Hattori, a 16-year-old Japanese exchange student mistakes from an address to a party, and is shot after knocking on the wrong door in Louisiana, United States. The shooter, Rodney Peairs, is acquitted by Jury causing an outrage in Japan.
- October 24 - Toronto Blue Jays win World Series in 6 games. Marking the first Canadian team to win.
- October 26 - In Canada, the Charlottetown Accord is defeated in a national referendum.
- October 29 - The Food and Drug Administration approves Depo Provera for use as a contraceptive in the United States.

November


- November 3 - Bill Clinton defeats George H. W. Bush and H. Ross Perot in the U.S. presidential election
- November 5 - In Detroit, Michigan, black motorist Malice Green is beaten to death by policemen Larry Nevers and Walter Budzyn during a struggle (the officers were later convicted and sentenced to prison)
- November 11 - The Church of England votes to allow women to become priests.
- November 20 - In England, a fire breaks out in the Private Chapel room of Windsor Castle, rages for 15 hours, and seriously damages the northwest side of the building (an investigation found that the fire was ignited after a spotlight came into contact with a curtain over an extended period).
- November 24 - In the People's Republic of China, a China Southern Airlines domestic flight crashes, killing all 141 people on-board
- November 24 - Queen Elizabeth II describes this year as an Annus Horribilis (horrible year) due to various scandals damaging the image of the Royal Family
- November 25 - The Czechoslovakia Federal Assembly votes to split the country into the Czech Republic and Slovakia starting on January 1, 1993
- November 30 - A murder trial of 14 South Vietnamese accused of murder of 24 North Vietnamese begins in Hong Kong (ends November 29, 1994)

December


- December 3 - UN Security Council Resolution 794 is unanimously passed, approving a coalition of United Nations peacekeepers led by the United States to form UNITAF, tasked with ensuring humanitarian aid gets distributed and establishing peace in Somalia.
- December 3 - The Greek oil tanker Aegean Sea carrying 80,000 tonnes of crude oil runs aground in a storm while on approach to La Coruña, Spain, and spills much of its cargo
- December 4 - US military forces invade Somalia.
- December 5 - Kent Conrad of North Dakota resigns his seat in the United States Senate and is sworn into the other seat from North Dakota, becoming the only US Senator ever to have held two seats on the same day.
- December 6 - Hindu activists destroy the Babri Mosque in Ayodhya, India, triggering religious violence around the country.
- December 8 - Last blast fired in Falu Copper Mine in Sweden. The end of a millennium of continuous operation.
- December 20 - The Folies Bergere music hall in Paris, France closes.
- December 29 - Brazil's president Fernando Collor de Mello resigns, following charges that he stole more than $32 million from the government and impeachment precedings.

Unknown Dates


- The Council for National Academic Awards, UK is wound up.
- Pope John Paul II issues an apology and lifts the edict of Inquisition against Galileo Galilei
- The largest shopping mall in the US, Minnesota's Mall of America is constructed spanning 78 acres (316,000 m²)
- Carsington Reservoir opened in England after nearly 20 years planning and construction.
- Image Comics is founded by a number of former Marvel artists, seeking to create a company where creators were given exclusive ownership of their creations.

Fictional Events


- January 12 HAL 9000 is purported to become operational at the H.A.L. plant in Urbana, Illinois.
- The events of the novel Do Androids Dream of Electric Sheep? take place.

Births

For more 1992 births see :Category:1992 births
- January 10 - Eric & Brandon Billings, Twin American actors
- January 19 - Logan Lerman, American actor
- January 21 - Logan O'Brien, American actor
- February 14 - Freddie Highmore, British actor
- March 15 - Sosie Bacon, American actress
- March 21 - Bobby Preston, American actor
- April 15 - Richard Sandrak, American bodybuilder and actor
- May 18 - Spencer Breslin, American actor
- June 7 - Jordan Fry, American Actor
- June 12 - Ryan Malgarini, American actor
- June 14 - Daryl Sabara, American voice actor
- July 13 - Dylan Patton, American actor and model
- August 4 - Dylan and Cole Sprouse, Twin child actors
- September 19 - Gavin Fink, American actor
- October 9 - Tyler James Williams, American actor
- October 15 - Vincent Martella, American actor
- October 30 - Tequan Richmond, American actor
- November 25 - Zack Shada, American actor
- November 30 - Dylan Smith, American actor
- December 23 - Spencer Daniels, American actor

Deaths

January-April


- January 3 - Dame Judith Anderson, Australian actress (b. 1897)
- January 9 - Bill Naughton, British playwright (b. 1910)
- January 23 - Freddie Bartholomew, Irish actor (b. 1924)
- January 26 - José Ferrer, Puerto Rican actor (b. 1912)
- January 27 - Allan Jones, American actor and singer (b. 1908)
- January 29 - Willie Dixon, American composer and musician (b. 1915)
- February 2 - Bert Parks, American game show host (b. 1914)
- February 4 - Lisa Fonssagrives, Swedish model (b. 1911)
- February 10 - Alex Haley, American author (b. 1921)
- February 12 - Bep van Klaveren, Dutch boxer (b. 1907)
- February 20 - Dick York, American actor (b. 1928)
- March 2 - Sandy Dennis, American actress (b. 1939)
- March 9 - Menachem Begin, Prime Minister of Israel, recipient of the Nobel Peace Prize (b. 1913)
- March 23 - Friedrich Hayek, Austrian economist, Nobel Prize laureate (b. 1899)
- March 29 - Paul Henreid, Austrian-born actor (b. 1908)
- April 5 - Molly Picon, American actress (b. 1898)
- April 6 - Isaac Asimov, Russian-born author (b. 1920)
- April 8 - Daniel Bovet, Swiss-born pharmacologist, recipient of the Nobel Prize in Physiology or Medicine (b. 1907)
- April 18 - Benny Hill, British comedian and actor
- April 21 - Grand Duke Vladimir Cyrillovitch of Russia (b. 1917)
- April 23 - Satyajit Ray, Indian filmmaker (b. 1921)
- April 27 - Olivier Messiaen, French composer (b. 1908)
- April 28 - Francis Bacon, Irish-born painter (b. 1909)

May-December


- May 6 - Marlene Dietrich, German actress (b. 1901)
- May 12 - Robert Reed, American actor (b. 1932
- May 17 - Lawrence Welk, American musician (b. 1903)
- May 22 - Tony Accardo, American gangster (b. 1906)
- May 23 - Giovanni Falcone, Italian judge (b. 1939)
- June 22 - Chuck Mitchell, American actor (b. 1927)
- July 15 - Hammer DeRoburt, first President of Nauru (b. 1922)
- August 5 - Jeff Porcaro, American musician (b. 1954)
- August 12 - John Cage, American composer (b. 1912)
- August - Mark Heard, American singer (b. 1951)
- September 2 - Barbara McClintock, American geneticist, recipient of the Nobel Prize in Physiology or Medicine (b. 1902)
- October 7 - Tevfik Esenç, last known speaker of Ubykh (b. 1904)
- October 8 - Willy Brandt, Chancellor of Germany, recipient of the Nobel Peace Prize (b. 1913)
- October 17 - Yoshihiro Hattori, Japanese exchange student (b. 1975)
- October 19 - Arthur Wint, Jamaican runner (b. 1920)
- October 25 - Roger Miller, American singer (b. 1936)
- October 27 - David Bohm, American-born physicist, philosopher, and neuropsychologist (b. 1917)
- November 22 - Sterling Holloway, American actor (b. 1905)
- December 18 - Mark Goodson, American game show producer (b. 1915)
- December 21 - Nathan Milstein, Ukrainian-born violinist (b. 1903)
- December 22 - Albert King, American musician (b. 1930)

Unknown date


- E. Harold Munn, American activist (b. 1903)

Nobel Prizes


- Physics - Georges Charpak
- Chemistry - Rudolph A. Marcus
- Medicine - Edmond H. Fischer, Edwin G. Krebs
- Literature - Derek Walcott
- Peace - Rigoberta Menchu Tum

Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel


- Gary Becker

Templeton Prize


- Kyung-Chik Han

Alternative


- Finnish Village Action Movement, Gonoshasthaya Kendra / Zafrullah Chowdhury, Helen Mack, John Gofman and Alla Yaroshinskaya
- als:1992 ko:1992년 ms:1992 ja:1992年 simple:1992 th:พ.ศ. 2535

Right to a fair trial

The Right to a fair trial is an essential right in all countries respecting the rule of law. It is explicitly proclaimed in the Sixth Amendment of the US Constitution, Article Ten of the Universal Declaration of Human Rights, Article Six of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. The essential ingredients for a fair and just civil trial must include a competent, neutral and detached judge (an independent judge); the absence of any intimidation of witnesses and ideally, an equal weight of arms i.e. a level playing field in terms of legal representation.

Divergent approaches

These are general principle, and, understandably, there exist divergent approaches and appreciation to what constitutes a fair trial. Proponents of both major classes of systems of criminal procedure (the adversarial system and the inquisitorial system) allege that their system offers defendent a fairer trial than the other system. There may be differences on points of procedures: for instance, some jurisdictions, in certain circumstances, allow trials of defendants in their absence (in absentia) while some other jurisdictions consider that a trial can only be fair if the defendant has attended it. In cases of extradition, the extraditing country generally requires that the country requesting extradition offers the defendant a fair trial. In some cases, this has led to some procedural defenses by defendants who alleged that their trial would not be fair according to the rules of the extraditing country. As an example, murderer Ira Einhorn waged a legal battle against his extradition from France to the state of Pennsylvania on grounds that his trial occurred in absentia and rendered a final judgment. Other (historical) divergences are stated below.

Ingredients of a fair trial

Right to counsel

Nowadays, it is generally believed that a fair trial includes the possibility for the defendant to be assisted by counsel (i.e. lawyers), and that if he cannot afford having his own lawyer, the government should appoint one for him, or pay his lawyer expenses. However, this has not historically always been the case:
- Before the Prisoners' Counsel Act (1836), felony defendants did not have the possibility of having a counsel in British courts. It was thought, at the time, that counsels would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel.
- In the United States, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in 1963 that the US Supreme Court affirmed the right for defendants to have counsel in trials for serious crimes. On the other hand, some other countries had adopted the right to counsel earlier on. For instance, the Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes). Category:Legal ethics Category:Rights of the accused

Legal aid

Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To not do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law. Some people use the label of "judicare" for legal aid, in an apparent attempt to analogize legal aid to the Medicare health care programs in the U.S., Canada, and Australia.

Legal aid in the U.S.

The U.S. has always been less generous than most other First World industrialized democracies in providing counsel to the poor and indigent. In a series of cases starting in 1964, the U.S. Supreme Court has ruled that American indigents do have a right to counsel, but only in criminal cases. See Gideon v. Wainwright. A few states (like California) also guarantee the right to counsel in "quasi-criminal" cases like paternity actions and involuntary terminations of parental rights. The federal government and some states have offices of public defenders who assist indigent defendants, while other states have systems for outsourcing the work to private lawyers. Meanwhile, legal aid for civil cases is currently provided by a diverse hodgepodge of public interest law firms, who often have "legal aid" or "legal services" in their names. All such firms impose income and resource ceilings as well as restrictions on the types of cases they will take, because there are always too many potential clients and not enough money to go around. Common types of cases include: denial or deprivation of government benefits, evictions, domestic violence, immigration status, and discrimination. Some legal aid organizations serve as outside counsel to small nonprofit organizations that lack in-house counsel. Funding usually comes from charities, private donors, and some local and state governments. Most typical legal aid work involves counseling, informal negotiation, and appearances in administrative hearings, as opposed to formal litigation in the courts. However, the discovery of severe or recurring injustice with a large number of victims will sometimes justify the cost of large-scale impact litigation. In 1974, Congress created the highly controversial Legal Services Corporation to provide federal funding for legal aid services. LSC's funding has fluctuated dramatically over the past three decades depending upon which political party was in control of Congress. For example, LSC suffered staggering funding cuts under former President Ronald Reagan in the early 1980s. Legal aid organizations that take LSC money tend to have more staff and services and can help more clients, but must also conform to strict government regulations that require careful timekeeping and prohibit lobbying and class actions. Many legal aid organizations refuse to take LSC money, and can continue to file class actions and directly lobby legislatures on behalf of the poor. However, even with supplemental funding from LSC, the total amount of legal aid available for civil cases is still grossly inadequate. According to LSC President Helaine Barnett, in a speech delivered on October 21, 2004, all legal aid offices nationwide, LSC-funded or not, are together able to meet only about 20 percent of the estimated legal needs of low-income people in the United States. The problem of chronic underfunding of legal aid traps the lower middle class in a Catch-22: too rich to qualify for legal aid, too poor to pay an attorney in private practice. To remedy the ongoing shortage of legal aid services, some commentators have suggested that mandatory pro bono obligations ought to be imposed on all lawyers, just as physicians working in emergency rooms are required to treat all patients regardless of ability to pay. However, all such proposals have been successfully fought off by bar associations. Legal aid programs for the poor are generally opposed by conservatives in the U.S., and supported by liberals and moderates. Fiscal conservatives argue that if asked to select between $500 in cash and $500 in legal services, most poor persons would take the cash. Social conservatives argue that legal aid programs serve only a very limited, left-wing version of the public interest. The liberal counterargument is that from an moral or philosophical perspective, legal aid preserves the ideal of "equal access for all" to the judicial system. A rather Machiavellian argument is that legal aid upholds the rule of law and stabilizes society as a whole, by enabling the poor to regularly seek redress of their grievances through formal legal processes; otherwise, it is likely that the poor will resort to highly destructive self-help measures like rioting.

Legal Aid in Scotland

In Scotland, legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners.There is a separate system of criminal legal aid, and legal aid is also available for legal advice. Legal aid is means-tested, and in practice only available to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board.

Legal Aid in England and Wales

In England and Wales, legal aid is administered by the Legal Services Commission, and is available for most criminal cases, with exceptions including libel.

Legal Aid in Australia

Legal Aid is administered separately by each of the different states and territories in Australia, which typically have specific statutory agencies set up for that purpose. It is important to note that legal aid work in Australia is performed almost exclusively by private law firms who account to Legal Aid for their fees, rather than state employees or "public defenders". The amount of money a lawyer receives from Legal Aid is always somewhat less than they would obtain from a private-paying client; however, most small and medium sized firms (particularly regional firms) will do at least some legal aid work because payment, even if modest, is guaranteed. Moreover in some areas of law (especially criminal law) Legal Aid work is often the only work available. The High Court case R v Dietrich established that defendants to serious legal proceedings should receive representation, and generally the first spending priority of agencies is criminal proceedings. The legal aid agencies are required by statute to fund representation for criminal defendants in indictable proceedings, which tend to be relatively serious in nature (such as stealing, fraud, house invasions, and aggravated assault). Lesser charges such as traffic or drug possession offences (being those that can be dealt with summarily by a Magistrate) do not necessarily warrant aid, although it is often granted if the defendant is a child or is otherwise disadvantaged. Legal Aid is not available if the Applicant either earns excessive income (usually more than $600) or possesses excessive assets. Applicants may be required to contribute part of the cost of proceedings if their income is less than this but still moderately high. Participants in Family law proceedings involving custody (or residence as Australian family law terms it) of children will usually receive aid, unless they fail the means or asset test. However, typically aid will only be granted initially to attend an informal conference, at which a mediator will encourage the parties to agree on a consent order. If this fails, the Legal Aid agency will fund representation for court proceedings depending on its assessment of the merits of each party's position. Aid is only rarely granted for civil proceedings, generally worker's compensation claims, or more commonly, for criminal injuries compensation claims. Problems with Legal Aid in Australia involve chronic underfunding (the opening of the new High Court building was greeted by protests that the cost of the opening ceremony exceeded the total Legal Aid budget for that year). It is also worth noting that there is less pro bono work performed in Australia than the US (probably because in Australia, law is a significantly less lucrative profession). Moreover, the peculiar American innovation of public service firms that subsist on donations and federal grants to provide representation to indigents do not exist in Australia. As a consequence, people who do not receive aid but who cannot afford private counsel have no recourse but to represent themselves. This is a commmonplace occurrence in property claims in the Family Court following the separation of spouses - it is estimated that up to 75% of the participants in these proceedings are self-represented.

External links


- [http://www.slab.org.uk Scottish Legal Aid Board] - Very full information site of the Scottish Legal Aid Board, addressed to lawyers and to members of the public, as to legal aid in Scotland
- [http://www.legalservices.gov.uk/ Legal Services Commission] - Legal Aid in England and Wales
- [http://www.ptla.org/international.htm Pine Tree Legal Assistance] - General reference site for legal aid throughout the world
- [http://www.justice.gc.ca/en/ps/pb/arr/legal_aid.html Legal Aid Program in Canada] - From the Department of Justice of Canada website Category:Law

Australian criminal law

Australian criminal law was originally recieved from the English common law. Criminal laws exist at both state and federal level, with the state having broader powers in this regard. States vary in their level of codification of the criminal law (or reliance on the common law). There are currently plans within some states of Australia to reform the criminal law to achieve greater consistency between states, through the Model Criminal Code. At present, New South Wales, Western Australia and the Northern Territory have participated in the law reform, but the remaining states and territories have not yet agreed to participate.

External Links


- [http://www.ag.gov.au/www/agdHome.nsf/AllDocs/RWPA93DBE7859B79635CA256BB20083B557?OpenDocument Model Criminal Code]
- [http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/ Commonwealth Criminal Code] Category: Australian law Category: Australian criminal law

Human rights

Human rights refers to the concept of <