Monday, 3 December 2012

A call to arms

I'm on my way home from the Law Institute of Victoria meeting discussed here on Thursday. Properly described, it was an Extraordinary Meeting of the LIV's Criminal Law Section.

Lawyers came from far and wide to express their concerns. The meeting tonight was Standing Room Only. Many asserted their staunchly-held belief VLA is moving in the wrong direction, and still more were irked by the lack of consultation. It was said that redrafted eligibility criteria will be finalised by 12th December 2012.

Many possible responses by the Law Institute were suggested. The one which will definitely occur is a rally outside the County Court, next Tuesday 11th December.

Some speakers complained about VLA's recent Public Defender initiatives, arguing they came at the expense of the more mundane but important work that Legal Aid does routinely. There is a real worry that people who need help won't get it under the new rules. Criticism was made of VLA's decision to grant aid in the matter of Magee v Delaney [2012] VSC 407 earlier this year.

Kyrou J summarised what that case was about in the first paragraph of his judgement, rejecting the appeal [at 1]:

Kyle Magee was charged with the offence of damaging property under s 197(1) of the Crimes Act 1958 and the offence of possessing materials for the purpose of damaging property under s 199(a)(i) of that Act. He did not dispute that he intentionally committed the physical elements of those offences by painting over an advertisement in a bus shelter with white paint and by possessing a bucket of paint and a paintbrush for the purpose of painting over more advertisements. However, Mr Magee sought to escape criminal liability by contending that his acts engaged the right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), and that the exercise of that right in furtherance of his philosophical opposition to advertising constituted a ‘lawful excuse’ for the purposes of ss 197(1) and 199(a)(i) of the Crimes Act.

VLA reported a $3.1 million deficit for the 2011-2012 financial year. They are under pressure to ensure that this year's figures are better. The general feeling in the room was that VLA had better scrutinise its priorities more carefully.

Anyone who was at the meeting tonight (or just has a strong feeling about Legal Aid) is welcome to leave their own comment.

Unfortunately our 'Recent Comments' gadget was down when I posted about this issue last Thursday. The gadget is still down and awaiting a replacement, but you can read the comments attached to any post by clicking on the red link in the gray bar directly below the post. I have reposted Hugh de Kretser's comment from last week.


Dr Manhattan said...

Hugh de Kretser said this last week, 30 November 2012 9:49 AM ...

If you care about adequate funding for legal assistance services - legal aid, community legal centres and Indigenous legal services, get behind our campaign. We're calling for a doubling of Federal legal assistance spending and think this is achievable given the Federal government spends twice as much on its own lawyers than it does on Australians who can't afford a lawyer.

Jeremy Gans said...

There are some interesting funding issues raised by the Kyle Magee case - should legal aid fund people who commit crimes purely as a political act? should legal aid fund long bow appeals? should legal aid fund Charter arguments? should anyone bother with the Charter at all? etc.

But I hope the complaint wasn't based on Kyrou J's criticisms of the particular arguments raised by Magee's lawyers, which you've extracted in part here. The 'lawful excuse' defence raised by Magee is a very unclear defence and one that ought to receive genuine judicial attention. And Kyrou's finding that the right to freedom of expression doesn't cover covering up something temporarily is a very broad (not to mention obviously wrong) ruling. And the issue that Magee raised (but apparently then dropped) about the impact of the Charter on prosecutorial charging decisions is one that has quite significant implications for many criminal defendants.

It's true that Kyrou didn't think much of those arguments - so much so that he took the bizarre step of ordering that a criminal defendant pay the costs of an intervention as of right by the Attorney-General - but there should at least be some assessment of the quality of Kyrou's analysis before his views are relied upon as a debating device in a debate about VLA funding.