1. Don’t attack the lawyers
  2. Mandatory sentencing and Bills of Attainder
  3. ASADA and the Rule of Law

Don’t attack the lawyers

Judges and juries determine guilt, not barristers and solicitors. Legal representation of a defendant is critical to a fair trial. Without it, the trial may miscarry at significant cost to the defendant, the victim, witnesses and the state.

“The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious … An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown.”

That is what the High Court said in Dietrich v R. To accuse lawyers who act for bikies, or anyone else for that matter, of being part of a “criminal gang machine” as Queensland Premier Campbell Newman has done, suggests a profound lack of understanding of the Australian system of governance and legal process. Under the cab rank rule, barristers are obliged to represent all comers, whatever their own personal views. Solicitors and barristers are bound by ethics that require them to promote the administration of justice, which includes offering quality advice and representation  –  however politically or personally distasteful. The rule of law depends on them.

Mandatory sentencing and bills of attainder

Oliver Cromwell by Robert Walker

Oliver Cromwell
by Robert Walker
oil on canvas, circa 1649
National Portrait Gallery, London. (Licensed under CC BY-NC-ND 3.0)

In other times, before the rule of law and the separation of powers, bills of attainder were used by parliaments to convict and sentence (usually to death) political opponents instead of having them tried by a court. They were also an exercise in political grandstanding, celebrating the power of the current government over its predecessors or those in opposition to it. Oliver Cromwell was a target of one such bill of attainder, notwithstanding that he was already dead.

In the tradition of bills of attainder, mandatory sentencing legislation gives parliament the power to determine the sentence of offenders, instead of courts. The circumstances of the crime and the offender are displaced, with politicians deciding on the sentence whenever it deems a particular crime has been committed.

The new offence of assault causing death introduced in NSW, with its mandatory minimum term of 8 years for offenders who were intoxicated at the time of the offence, regardless of the context or their personal circumstances is unfair and risks being imposed arbitrarily. Research into the penalties imposed in ‘king hit’ cases shows that the average penalty is around three and a half years imprisonment because of the subjective factors taken into consideration, so the new offence carries more than double the penalty. If mandatory sentences are legislated for an array of assault charges and affray as signalled, our prisons will not be able to cope. Sentencing is the job of judges, not politicians. Bills of attainder have no place in a rule of law society.

ASADA and the rule of law

The practices of the Australian Sports Anti-Doping Agency (ASADA) in investigating athletes were under scrutiny at RoLIA’s Annual Conference last year on sport, drugs and the rule of law. Sports law experts spoke of their concerns about ASADA’s coercive powers to compel athletes to attend for questioning and produce documents, or face significant penalties. The sporting working life of many athletes is a matter of years, not decades as in other areas of work. Long-winded investigations can mean that for a significant portion of their sporting life, the reputation of athletes is under a cloud. Even if their name is eventually cleared, mud may stick or opportunities could be lost during the process. The appointment of former Federal Court judge Garry Downes to review ASADA’s drawn out investigation into drug use in football codes is welcome, provided of course that does not further delay the investigation.


kate_twitter_picKate Burns is RoLIA’s Chief Executive Officer. Join the discussion about rule of law issues on Twitter @RoLAustralia.