The Explosion Of Litigation And Legal Rights Will Require Control Of Lawyers' Fees
Sydney Morning Herald
Tuesday August 29, 1995
HOW can we prevent the growing encroachment of lawyers into every aspect of our daily lives and into the processes of government? It might seem somewhat late to ask this question, since we are already nearly as litigious a society as the United States, with a taxation law so complex that even the High Court occasionally confesses itself baffled.
The Government is trying to come to terms with the High Court's Teoh decision, which ruled that bureaucrats are bound to observe international treaties and conventions even if they have not been incorporated into Australian domestic law, with as yet imperfect draft legislation. Unless the NSW Appeals Court or the High Court reverses the judgment of Justice David Hunt about which I wrote last Friday, which extends the right to legal representation to a right to indefinitely expensive legal representation, legislation will be necessary in effect to nationalise the legal profession.
It is clear that just as the underwriting of medical expenditures through the health insurance and Medicare system has required extraordinary measures even to begin to control the share in public expenditure of health and medicine, amid much controversy, so too will the new income support scheme for the legal profession have to be countered by legislation overruling the High Court's development of the common law in the matter of legal representation. Something like a scale of standard fees for a complex array of legal services will have to be established, and defendants (whether subject to a means test or not) offered free legal representation on the basis of this scale. That is, any expenditure on legal representation over the set scale would be a matter for additional private payment or perhaps insurance.
Turning the whole legal profession into a branch of the public service, that is nationalisation, as was attempted for the medical profession by the postwar Labour Government in Britain, is not feasible in Australia because of the amendment to the Constitution prohibiting civil conscription. But the legal precedents for a "Legicare" approach to guaranteeing legal representation at a controllable cost to the community are pretty solid. Of course, given the fact that the High Court thinks barristers are beyond social control, and as officers of the court cannot be sued for negligence, even this must be uncertain.
What we are seeing is yet another example of the legalistic extension of rights to more and more absurd lengths. It is just one of the ways in which lawyers are extending their power and influence, as well as discovering new potential bonanzas for themselves every day.
In the case of serious criminal offences, there is a good deal to be said for the provision of some form of legal aid in the case of an accused who has no resources. This can be done adequately and in accord with the Dietrich judgment, either through a legal aid system or through the provision of some kind of "public defender" - perhaps a full-time lawyer employed by the Government, as is the case in many European countries.
There might seem to be some unfairness in this, in that in a complex case a duty lawyer might not be able to stand up to high-powered prosecutors. But as Justice Dawson said, the right to a fair trial cannot mean a right to perfect justice. It is for the presiding judge to ensure that a trial is as fair as it can be without presuming to determine how much money is to be spent on the defence. But the problem of fair representation goes far beyond criminal trials.
There has been a great deal of complaint about the fact that legal aid is not available to the ordinary middle-class person with legal problems.
One answer to this has been imitation of the American system of class actions and the advocacy of contingency fees. Fortunately our legal system is not yet as corrupt as the worst State systems in the United States, so the dangers are not as great. But there have been sufficient recent entrepreneurial mountings of legal actions to make it clear that some law firms at least need to be brought under control. Thanks to the explosion of the human rights industry, many people now feel entitled not only to go to law but to do so at public expense.
The danger is that the alternative will involve the creation of an extensive and self-aggrandising legal bureaucracy and support system. Either way the community is going to have to come to terms before long with the necessity of putting an end to the growth of litigation and litigiousness. Limiting the numbers of lawyers permitted to train every year might be a start. Controlling access to the courts by lawyers operating individually, and not charging standard fees might be another step. Simplifying the law, and reducing the huge volume of laws and regulations in existence would help also - at least medicine deals with real problems. Some kind of case-mix system along the lines being applied to hospitals, rather than the tentative approaches being made in the courts, will probably also become necessary. The growth of per capita expenditures on the law simply has to be slowed.
(Note: It has been suggested to me that I misrepresented Justice Hunt's judgment when I wrote that he had decided "without seeing any documentary evidence" that Milat had no capacity to pay. It is true that this is the case, but the AttorneyGeneral of NSW did not dispute that Milat is indigent, and therefore documentary evidence could be thought unnecessary. This is an issue which should be explored further when the Milat case has run its course.)
Internet: ppmcg@ozemail.com.au
© 1995 Sydney Morning Herald