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Delays, costs hamper FOI systems

Freedom of Information laws are designed to increase government accountability by allowing citizens to access documents related to government actions. However, concerns have been raised about how effective the arrangements are. In Victoria, the FOI Commissioner is struggling to process the large volume of requests. The cost of the Commonwealth system has been criticised, after a software developer was billed $720.30 in fees to access 130 pages of correspondence—including charges for 36.12 hours of decision-making time, or more than a full working week. “I assume that most of that is boosted up and inflated in order to kind of deter people from making FOI requests”, he said. He had requested any documents referring to Stop Tony Meow, a “browser extension that replaces photos of Tony Abbott with pictures of cute kittens”. The government’s response can be viewed at Right to Know, a website that helps citizens lodge federal FOI requests.

 

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Britain debates judicial gender balance

In response to a report showing only 22.3% of British judges were women, the Labour Opposition is considering whether to support “quotas for female and black and ethnic minority judges … to achieve a judiciary reflecting the composition of the population”. Quotas are a controversial form of affirmative action that require a set proportion of positions to be allocated to underrepresented demographic groups. A statistical analysis of the Australian judiciary found that while there has been significant improvement in the last decade, “[n]evertheless, there is a significant distance to travel in achieving gender parity — there are still more than twice as many males as females in the judiciary.” By contrast, “61.4% of [Australian] law graduates are women.”

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Productivity Commission draft report on access to justice

The Productivity Commission has released its draft report on access to justice in the civil jurisdiction, and will now seek public feedback. The PC provides advice to the Commonwealth on economic issues. The terms of reference for its inquiry focus on the financial and social costs of the justice system, and possible reforms to improve efficiency and accessibility. For example, “The report heavily criticises time-based billing by lawyers, ­arguing that it leads to over-­servicing, rewards inefficiency and lacks certainty for clients.” One of its more unusual proposals is for “a legal expenses loan scheme which would offer income-contingent interest-free loans to people who do not qualify for public legal assistance. The person would repay the loan through contributions of a proportion of their income, or from any award of damages.”

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No more funding for asylum seeker lawyers

The Commonwealth Government will no longer provide legal advice to asylum seekers. Immigration minister Scott Morrison explained, “What we’re saying is that it’s not going to be the responsibility of the taxpayers anymore to fund people pursuing appeals and various other things through the process.” Monash University’s Azadeh Dastyari says the policy change will put genuine refugees at risk: “Several studies have shown that there is a clear correlation between having legal advice and the recognition of a refugee’s status. … There is … much to lose —  including placing refugees in danger of persecution, torture or death.” The Government says asylum seekers should instead seek pro bono assistance from volunteer lawyers.

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Procedure trips up self-represented litigants

This week’s Radio National Law Report considers the difficulties faced by litigants who are forced to represent themselves in court. QPILCH′s Elizabeth Pendlebury says the system is difficult for non-lawyers to navigate: “They don’t expect to have to follow a lot of pre-trial proceedings and steps to set out their case before having a substantive hearing before somebody in the court system.” This can lead to people dropping their cases, even if they have a strong legal position. Judge Misso of the County Court says he tries to provide a “roadmap” for self-represented litigants, but the assistance judges can offer is limited in an adversarial system. The County Court is trying to improve accessibility with a new self-represented litigants coordinator, and a YouTube video guide to court processes.

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Lawyer turned police informer causes controversy

The Supreme Court last night forced the Herald Sun to stop its presses, to prevent the possible identification of a criminal defence lawyer who was also a secret police informer. Articles published earlier this week have been removed from the paper’s website. The right to confidential discussions with a lawyer is fundamental to the criminal justice system; Justice Gummow described it as “a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights.” The Legal Services Commissioner says a lawyer who leaks against their clients could be charged with professional misconduct. Prominent lawyer Rob Stary has called for a royal commission to investigate the issue and restore public confidence in the system.

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Queensland restores gendered language to law

Throughout the Crime and Misconduct and Other Legislation Amendment Bill 2014 (Qld), the Queensland government has included amendments what would omit the word “chairperson” and replace it with “chairman”. James Cook University lecturer Kate Galloway argues that although this has no legal effect, it is nevertheless “not only a retrograde step, but an indefensible one.” She argues: “There is certainly no harm in retaining the existing ‘chairperson’. The proposed change reinforces masculine norms that form an implicit barrier to women in achieving leadership roles within the law, and a precedent for wider use of masculine language as a means of excluding and potentially discriminating against women through the law.”

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VCAT losers will soon pay winners’ fees

The Victorian Civil and Administrative Tribunal Bill 2014 was passed by parliament this week. It will allow VCAT to order the losing side to pay the fees of the winner (but not their full legal costs). The Tenants Union is concerned that this will “cause further harm to a frequently economically disadvantaged section of our community”. On the other hand, the Consumer Law Action Centre says the impact of last year’s fee increases may be reduced, because winners could now have their fees reimbursed. A proposed amendment to require VCAT to specifically consider “financial hardship” before making a fees order was defeated.

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Legal aid cuts “unquestionably compromise” Family Court

The Chief Justice of the Family Court of Australia, Diana Bryant, says that due to funding cuts to Victoria Legal Aid, “the system is compromised, unquestionably”. Increasingly, parties are required to represent themselves, which puts them in a difficult position: “You have a party who’s not only going to be cross-examined by their former partner about, perhaps, violence of which they’re the victim, but they have to run their case and they have to cross-examine their partner. And for many people that’s impossible and it leads to settlements.”

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New restraint orders to limit vexatious litigants

The Napthine Government has proposed a crackdown on “tribunal pests and costly court time-wasters”. Under the existing system, a person can only be declared a “vexatious litigant” by the Supreme Court on the application of the Attorney-General; the bill is a response to a parliamentary committee’s call for a more flexible system. According to the explanatory memorandum, “The Bill enables the Supreme Court, the County Court, the Magistrates’ Court and VCAT to make various types of ‘litigation restraint orders’, which increase in severity in accordance with a person’s litigation history and pattern of vexatious behaviour.” A vexatious litigant is prohibited from launching a legal case without first being granted permission by the court.