Right to Legal Aid and a Lawyer of One's Choice

Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009) The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer.  This case was the first application made under amendments to the Human Rights Act 2004 (ACT) creating a new cause of action for breach of human rights, which came into force on 1 January 2009.

Facts

Mr Hakimi, an Afghan refugee, was arrested and charged with a serious offence.  Appearing for himself, he successfully applied for bail, and then met with a solicitor whose firm has acted for Mr Hakimi since that time.  As Mr Hakimi could not afford to pay for legal representation, his solicitor advised him to apply to the ACT Legal Aid Commission for assistance.

The Commission granted legal aid on the basis that Mr Hakimi would be represented by one of the Commission's own lawyers.  Mr Hakimi was not satisfied with the Commission's decision, as he wished his own solicitor to continue acting for him.

At the hearing, Mr Hakimi argued that s 22(2) of the Human Rights Act requires the Commission to pay for his choice of lawyer, even if that person is a private practitioner.  The relevant provisions provide for anyone charged with a criminal offence to:

  • be able to communicate with a lawyer they have chosen (s 22(2)(b));
  • be able to defend themselves through legal assistance they have chosen (s 22(2)(d));
  • be told about the right to choose legal assistance (s 22(2)(e)), and
  • have legal assistance provided to them without payment if required by the interests of justice (s22(2)(f)).

Mr Hakimi argued that the plain meaning of s 22(2) supported his position, and the Court was not required to look to any other authorities or principles.  All he needed to show was that he qualified for legal aid and a lawyer of his choice was willing to act for the fees ordinarily paid by the Commission.

The Commission did not dispute it was a public authority, nor that it was bound to apply the provisions of s 22.  It argued there was a significant difference between the wording of s 22(2)(f) and the other paragraphs of s 22(2) relied upon by Mr Hakimi.  Significantly, para (f) did not refer to legal assistance 'chosen by him or her', which it submitted was a deliberate omission, recognising international jurisprudence in respect of similar provisions (see, eg, UN Human Rights Committee in Teesdale v Trinidad and Tobago [2002] UNHRC 17 considering art 14(3)(d) of the ICCPR).  Therefore, it was not intended that legal aid funded representation necessarily be by a person's preferred private lawyer.

The Commission also argued that s 28 of the Human Rights Act permitted reasonable limitations on the rights provided by s 22.  The Commission argued that its Work Allocation Guidelines, the policy for determining to whom it can provide assistance in order to make the most efficient use of its money, constituted such reasonable limitations.

Decision

Justice Refshauge considered that identifying the content of the rights protected by s 22 of the Human Rights Act is properly assisted by international jurisprudence considering similar rights.  However, this does not mean that the 'ordinary canons of statutory construction' can be ignored.

His Honour agreed with the Commission's argument that the omission of 'chosen by him or her' from the wording of s 22(2)(f) was deliberate, particularly given this is supported by international jurisprudence to which he assumed the legislature had regard when drafting the provision.

His Honour specifically referred to decisions of the New Zealand Court of Appeal and the European Commission on Human Rights, which have held that a provision of this type does not provide the right for legally aided parties to choose their lawyer.

Justice Refshauge further held that paras (b), (d) and (e) of s 22(2) do not provide an absolute right to representation by a lawyer chosen by the accused.  In particular, the provisions could not force a lawyer to act for a person regardless of their wishes or availability, or if the accused's choice would lead to unreasonable delay.  Accordingly, the right is not absolute and can be limited in certain circumstances.

Relevance to the Victorian Charter

Section 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides similar protection of an accused's rights in criminal proceedings to those set out in s 22 of the Human Rights Act.  However, s 25(2)(d) of the Victorian Charter draws a distinction between the requirement that an accused be guaranteed the right to defend themselves though legal assistance of their choice or if eligible, through legal aid provided by Victoria Legal Aid.

Accordingly, the arguments relied upon by Mr Hakimi in this case would not seem to arise on the wording of s 25(2)(d).  In any event, the Court would be unlikely to depart from the principle that there can be no absolute right for a legally aided person to choose their own lawyer.

The decision is available at http://www.courts.act.gov.au/supreme/judgments/hakimi.htm.

Jonathan Kelp, Human Rights Law Group, Mallesons Stephen Jaques

MichelleBennettHuman Rights Law & Institutions