70103 ETHICS LAW AND JUSTICE. 2 Asylum seekers and access to justice 1 3 Access to justice: economic issues 7

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1 70103 ETHICS LAW AND JUSTICE TABLE OF CONTENTS Class Topic Page 2 Asylum seekers and access to justice 1 3 Access to justice: economic issues 7 4 Access to justice: social/cultural issues 17 5 Ethics, theory and the law 27 6 Legal Players - Lawyers 33 7 Legal Players professional identity and resilience 38 8 Ethics and Criminal law 47 9 Integrity and the law Duties to Client, Colleagues and Others 57 2 Asylum seekers and access to justice Defining justice What is justice? What is injustice? (James and Field p ) James and Field justice = a standard for which the law can be measured p407 Justice as divine command the authoritative command of a deity, i.e. something is wrong/unjust because the holy book says so Justice as natural law justice is a concept that is universal and absolute. Something is considered wrong simply because that s the way it is Justice as positive law justice is whatever the law says Justice as mutual agreement justice is what the community agrees it to be Justice as consequentialism justice is the decision or action that has the best consequences for total welfare p408 Injustice is therefore the inability to attain justice and is dependant on what you believe justice to be Theories of justice (James and Field, The New Lawyer ) Some legal philosophers believe that the law is a reflection of universal principles, whilst others believe that questions of legality and questions of justice are not necessarily related p407 justice provides a standard against which particular laws, legal decisions and the legal system as a whole can be measured p407 justice generally equates to fairness. However, what is considered to be fair? And who decides what is fair? Types of justice Distributive justice: Distributive justice is concerned with the fair and proper distribution within a group or a community p408 There are a number of possibilities concerning when distribution is fair and proper : 1. Egalitarianism - resources should be distributed equally within the group or community, either in terms of equality of opportunity or equality of outcome p408 - i.e. each person would receive the same amount of cake 2. Desert theory - resources should be distributed according to what each member of the group or community deserves, the basis of which is not equality but some other criterion such as need, talent or effort. p409 - e.g. the hungriest person would get the largest slice of case (based on need) 3. Utilitarianism - resources should be distributed as to maximise the total or average happiness or welfare across all members of the group or community.

2 - i.e. the largest slice of cake would be given to the person who likes cake the most maximising overall happiness Rawls vs Nozick Rawls: - p409 Nozick p410 - justice requires impartiality i.e. impartial distribution of resources and opportunities - p409 - would reject a utilitarian approach (maximise overall happiness/wellbeing) - distribute justice behind a veil of ignorance p409 - favour approach based on fairness for all parties can t end up in a position of personal disadvantage if it benefits the wider community - if were to distribute behind a veil of ignorance would distribute based on fairness - A mix between formal equality and that based on need Unrealistic - people will always want to work for themselves Everyone should get what they deserve through their work - but that doesn t account for structural inequalities and privilege as a result of virtue of birth According to Nozick, any attempt to redistribute property or wealth within a community in order to benefit the least advantaged is theft p410 Procedural justice Achieved when there is a fair hearing/trial p410 Safeguards in the legal system that ensures procedural justice: e.g. - a person may only be forcibly detained if they are reasonably suspected of committing a crime - the defendant must be informed of all matters alleged against him/her - the ability to cross-examine - the presence of a jury in criminal proceedings ASIO s interrogation powers p question + detain suspected terrorists + monitor them through intelligence - Australian Security Intelligence Organisation Act 1979 (Cth) - ASIO Director-General can request intelligence warrant from Attorney General - 2 types of interrogation warrant questioning warrant + questioning and detention warrant - a questioning and detention warrant allows suspects to be detained for up to 7 days, with questioning for no more than 24hrs in 8hr blocks - both warrants suspect can contact a lawyer - ASIO also has the power to tap a person s communications, track them and inspect their personal - are these powers consistent with notion of procedural justice? Why are they important? Do the powers of ASIO override procedural safeguards? Is that fair? - other examples = crime commissions and anti-terrorism organisations that for example can detain suspected terrorists for longer than the law sets out Retributive justice concerned with the appropriate responses the criminal and other harmful behaviour p412 desert theory - punishment should be decided according to what the offender deserves - i.e. the offender is dealt with as an individual, not in terms of overall welfare utilitarianism - compensation and/or punishment is justified if it maximises the overall welfare of the community p412 - e.g. deterrence, rehabilitation, ensuring compliance with the law - the onus is placed upon the benefits of the punishment for the community Restorative justice concerned with restoring or healing the victim and reintegrating the offender into the community p412 e.g. victim impact statements/ circle sentencing How should justice be distributed across the community? Access to health services - egalitarianism everyone should have equal access Access to the internet - base = formal equality model (egalitarianism) everone should have access - then beyond that a utilitarian model or the need model (that people n certain demographics need it more) Taxation - at the moment it is based on need but can reach a certain wealth level where tax is not even applicable

3 Public transport - should be egalitarian but it isn t e.g. many remote Aboriginal communities have little or no access to public transport Is the Australian legal system more retributive or restorative? Currently, the system is more retributive as it focuses on finding a punishment to fit the crime. However, there are significant elements of restorative justice that are becoming more prevalent within the legal system, for example, circle sentencing and victim impact statements. The law and obedience Milgrim Experiment (BBC, The Migrim Experimet (2009)) Examined the defence of obedience in committing atrocities particularly in relation to the Nazis in WWII i.e. how far a person will go in obeying instructions Relevance to law what do you do when you think the law is wrong and yet it is your responsibility to uphold the law - is it ever ok to disobey the law if you feel as though the law is wrong The foreman case: should lawyers be able to claim that stress and overwork have contributed to bad behaviour towards clients? - Carol Foreman found to have significantly overcharged clients - Gave evidence that she was pressured to bill clients + evidence of being overworked - Law Society of NSW v Pearson [2005] the profession must be aware of the professional dangers posed by any one of the modern day practices of hourly rates, time sheets and budgets that govern much of current practice by solicitors What if the choice is between obeying the supervising lawyer s directions or losing employment? Where does personal responsibility lie? - Opinion personal responsibility should uphold one s own ethical beliefs and values - Therefore, whilst it is a difficult situation, if the supervising lawyer s instructions are unethical should follow own instincts - Otherwise bystander which leads to other issues in certain circumstances Violence can be seen as a justified response it is an innate part of human beings e.g. Stanford prison experiment Is obedience part of a lawyer s role? In relation to upholding the law yes, as it is a lawyer s responsibility to uphold the law and obey court proceedings In relation to just going with what the client wants (it may be unlawful or unethical) no - Lawyers can choose to resign from the case - See later seminars i.e. a lawyer s duties Structural injustice = Injustices committed towards disadvantaged people that are embedded in the community E.g. Centrelink forms, gender binaries (male or female no transgender option), apartheid, Adam Goodes, education, housing, i.e. the view from the powerful that everything is fine they don t see the injustices the powerful have invested interest in keeping the structures as they are that is what benefits them Critical race theory says that when you apply this to racism the whole of our societies reflect social privileges Do individuals have a responsibility, as MLK poses, to fixing structural injustice? (Hanagan, Preferring Justice to Order: Martin Luther King on Responsibility, Extremism and Democratic Politics ) suggests that social responsibility reinforces existing inequalities, due to the expectation to strengthen social institutions or at the very least prevent their destabilisation p2 For Martin Luther King, social responsibility is not about preserving a social compact in which individuals seek to preserve and sustain institutions that have benefited them; rather, it is about individuals taking responsibility for harms that result from social institutions and processes in which they are embedded p3 King referred to himself as an extremist for justice p25 He suggests that extremism may be necessary to save democracy, as collective sins cannot be addressed without substantial changes in existing institutions and laws p26 Placing responsibility on the system King refused to attribute social and political ills to individual behaviour, suggesting that this distracts from the harmful impacts of the institutions p4 He is more concerned about the system/philosophy of life that produced the ills America - processes that reinforce injustices are so embedded within the culture that it is impossible to avoid

4 Therefore, even the conscientious individual remain implicated in harm p5 the conventional understandings of responsibility that focus on the misdeeds of individuals while ignoring the context in which they operate make it easier for Americans to justify their refusal to make sacrifices that meaningful equality requires p7 Social responsibility is more about individuals taking responsibility for harms that result from social institutions and processes, rather than about preserving social compact. o an ethic framework that suggests that individuals have an obligation to society social responsibility = fulfilling a social compact in exchange for the opportunity to enjoy the benefits that come from being a member of that society i.e. maintaining existing social structures and institutions p2 structural injustice = occurs when a society emphasises individual rights as opposed to social responsibilities Freedom within destiny resisting injustice is a moral imperative p8 individuals have a greater responsibility to address/resist injustices in which they are implicated King constantly referred to the obligation to resist injustice with human freedom p8 Freedom is not automatically achieved in the absence of constraints. It requires the ability to weigh alternatives, decisiveness and responsibility. Freedom requires responsibility. It is the obligation of the individual to respond as no one can respond for him King encourages his audience to take responsibility for their own actions rather than shifting blame onto external agencies p10 whilst individuals to not choose their circumstances, they do choose how they respond to those circumstances The limits of moderation King believes that American culture inherently discourages citizens from exercising freedom and responsibility due to entrenched history which makes the privileged unaware of how institutions implicate them in evil p13 Part of the problem is the individual s desire for social approval, which can lead him to ignore the judgements of his own conscience p14 The support of a crowd can also exacerbate the problem p14 Time doesn t lend itself to the notion of justice, as King believes that it is too optimistic to believe that injustices will merely be corrected over time p15 Creative extremism In criticising white moderates, King rejects the view that the world is ethically irrational i.e. that wellintentioned outcomes often have negative consequences p18 He also believes that interdependency is tragic. The fact that individuals rely on each other for survival means that they cannot avoid being implicated in and affected by collective sins p19 However, on the other hand it is a blessing as it ensures morality and the amalgamation of individual self-interest King s extremism seeks to create rather than destroy community p20 it however requires political actors to pursue objectives that are frequently in tension with each other. For example, the desire for coalitions to resist unjust power contrasted with moral obligations to resist violence Situations in Australia where justice may be served by breaking the law whistleblowing (e.g. in Manus Island context natural law basic human decency + fundamental human rights), aboriginal people being unfairly discriminated against with mandatory sentencing (a passer-by ignoring a petty crime e.g. mild theft), wikileaks, Asylum Seekers What access to justice issues to asylum seekers in onshore and offshore detention face? (Amnesty International, This is breaking people ) Treatment of asylum seekers in offshore detention: living conditions vary considerably, with Manus Island for example boasting incredibly crowded accommodation e.g. one dormitory with 112 closely spaced beds p6 detainees queue for meals due to inadequate dining facilities p6 latrines rarely have hand soap p6 upon arrival at Manus Island, belongings are generally confiscated and the clothes provided are very limited p6 Asylum seekers on two of the three main compounds have little or no access to phones and internet. This affects contact with family/friends as well as access to legal information on the internet. For example, access to UN High Commissioner for Refugees was blocked until recent complaints p7 medical facilities in the centre are limited and insufficient. For example, detainees require more opportunities for mental stimulation such as physical exercise p7

5 as a result of an administrative error, Manus island held 3 children under the age of 18 until mid-november The children were housed in a separate compound from the adults and had no opportunity for schooling. p7 the treatment of 3 cases of asylum seekers under the age of 18 who had all been determined to be over the age of 18 raises serious concerns about the age assessment procedures employed by Australia s Department of Immigration and Border Protection. Furthermore, age determination interviews on Manus Island are held by way of teleconference, and as a consequence, may not be 100% accurate p8 one detainee on Manus Island has dwarfism, and the centre had taken no steps that would afford him a measure of dignity and autonomy, consequently making both Australia and PNG in violation of the Convention on the Rights of Persons with Disabilities p8 the most frequent complaint however is that asylum seekers are left in uncertainty and held in arbitrary detention. No asylum seeker held on Manus Island since the facility reopened in November 2012 has yet received a Refugee Status Determination (as of 2013 when the article was written) the Regional Resettlement Agreement (between Australia and Papua New Guinea) has resulted in numerous human rights violations under international law, a refugee is a person who: -p9 - has a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, political opinion - is outside the country of his/her nationality - is unable to avail himself or herself of that country s protection or is unwilling to do so because of fear As soon as these conditions are met, a person is entitled to the protections of the 1951 Refugee Convention and its 1967 Protocols People who are outside of their country of nationality due to a serious threat to their life, liberty or security as a result of generalised violence or events that seriously disturb public order are also regarded as refugees (mandate refugees) and broader international criteria applies to them- p9 Applicable legal standards p59 60 Applicable medical laws and standards at the centre are unclear p59 Whist Papua New Guinea may not have the capacity to provide the best medical care, Australia has a responsibility to ensure that refugees detained at Manus Island are not in any way disadvantaged by virtue of their transfer to an offshore facility p59 International law on health and disabilities p60 - Both Aus and PNG have signed and ratified the Convention on Rights of Persons with Disabilities which creates obligations to ensure that persons with disabilities are treated with dignity and - Both are also parties to the International Covenant on Economic, Social and Cultural Rights which states everyone enjoys the right to the highest attainable standard of physical and mental health - Under these, Aus must not transfer asylum seekers to facilities where their needs cannot be adequately met (e.g. Manus Island) otherwise in breach of Convention on Rights of persons with disabilities Domestic laws on health and disabilities p60 - Disability Discrimination Act (DDA) protects people from discrimination on basis of disability - Indirect discrimination occurs if a condition/requirement, or failure to make a reasonable adjustment, had the likely effect of disadvantaging a person with a disability e.g. the failure to take into consideration a person s disability when transferring them to Manus Island which has limited resources Refugee status determination interviews Access to lawyers p Claims Assistance Providence Scheme (CAPS) gives asylum seekers help in compiling evidence - However they do not act as lawyers and therefore do not provide legal or advocacy services p63 - Many - Access to CAPS was disbanded following the September 2013 elections and reinstated only 3-4 weeks before Amnesty International s visit in November p63 - There is significant confusion amongst the detainees as to whether or not CAPS officials are actually lawyers or not p64 - Neither countries provide a free legal service to asylum seekers during the Refugee Status Determination process p64 - when asked, non of the detainees interviewed said that they had been offered access to a lawyer or informed that they had a right to a lawyer during the Refugee Status Determination Process p64 Experiences in interviews - brief interview upon arrival to Christmas Island explored e.g. asylum claim, life in country of origin, family details, details of journey p64

6 - DIBP (oversee Refugee Status Determination Process) there are only 3 Papua New Guinea refugee status determination officials for more than 1100 detainees with plans to increase this to 20 p64 - i.e. inadequate staff for determination (AAP, Asylum seekers will no longer receive taxpayer-funded immigration advice if they arrive in Australia through unofficial channels SBS, March 2014>) - both onshore and offshore Asylum seekers who arrive without proper visas, by either boat or plane, will not be eligible for free legal help under the Immigration Advice and Application Scheme, according to Immigration minister Scott Morrison The argument for this is that taxpayers wont have to fund the legal representation of asylum seekers They will however continue to be given instructions setting out the asylum process and interpreters small amount of support will be offered to vulnerable people, such as unaccompanied minors (SBS, I was told to lie: Manus Island staffer 25 February 2014) Liz Thompson, a former immigration officer, argues that asylum seekers are subject to indefinite detention She refers to the fake processing system, as resettlement is not a discussion the staff can have with the detainees In reference to Manus Island, she reveals that It s not designed as a processing facility, it s designed as an experiment in the active creation of horror to deter people from trying in the first place She states that we were informed that we were not to discuss resettlement, we were not to discuss third country options the process doesn t lead anywhere except indefinite detention (Laughland, Asylum seeker reports department to federal police after punitive transfer, The Guardian, 2014) - onshore claims that the transferral of 83 asylum seekers from Villawood in NSW to Curtin in WA was an interference in the judicial process and criminal additionally, asylum seekers have lodged court cases over the public disclosure of their personal details by the Department of Immigration The Guardian Australia revealed that nearly asylum seekers had their personal details published on a public forum, in breach of both the Migration Act and Privacy Act those marked for transfer to Curtin were asylum seekers who had arrived in Australia by boat, as it is a measure of punishment due to the hot climate and lack of mobile phone reception (Morrison and Barns, Manus Island negligence may have financial costs, ABC, 25 March 2014) a High court case NSW v Lepore ruled that the Commonwealth Government can be held responsible for the negligence of others trusted to care for a third party therefore, in the context of asylum seekers in detention, the commonwealth can be held responsible for harm that occurs if the government engages contractors, e.g. security NGOs or medical professionals regardless of the fact that Manus Island and Nauru are offshore, the article argues that the Commonwealth still assumes responsibility since 1999, in which asylum seekers began to bring negligence and breach of care claims against the government, $7 million has been paid out the physical conditions and the quality of care provided to detainees on Manus Island and Nauru is well below the international and Australian human rights standards for individuals who are detained by governments, making it likely that the Commonwealth s duty of care is being breached (Kirsty Needham, Compensation payouts to asylum seekers reach $23 million, SMH, 2011) - onshore and offshore federal government made to pay former detainees a combined $18 million for unlawful detention and $5 million for negligence documents released by the Finance Department under Freedom of Information reveal 293 unlawful detention claims and 111 negligence claims since 2000 the article also notes the severe mental health issues of asylum seekers caused by mandatory detention e.g. escalating levels of self harm Should the Australian Government/taxpayers continue to fund free legal/migration agent services for asylum seekers Yes, there should continue to be free legal/migration agent services for asylum seekers. Australia has signed and ratified the Refugee Convention, and therefore has a duty to protect refugees A refugee s status cannot be accurately determined without equality in access to justice, which ultimately stems from adequate legal representation (Azadeh Bastyari, Why refugees need legal aid New Matilda, 4 April 2014) - both onshore and offshore the problem with not getting access to Immigration Advice and Application Assistance Scheme is that asylum seekers are not in position to understand intricacies of legal system whilst the gov will provide some info, Bastyari argues that this is insufficient

7 Many are illiterate + distrustful of government as a result of experiences of persecution From several studies conducted worldwide, there is a clear correlation between having legal advice and the recognition of a refugee s status Australia signed the Refugee Convention, requiring them to protect refugees from being returned to persecution UNHCR recognises need for legal advice Asylum seekers are often unable to articulate the elements relevant to an asylum claim without the assistance of a qualified counsellor because they are not familiar with the precise grounds for the recognition of refugee status and the legal system of a foreign country. quoting UNHCR Bastyari questions why Australia, who can spend over $2 billion over 4 years on offshore processing, can t afford the $100 million over 4 years for legal representation Without adequate legal representation, processing take much longer due to poor records and insufficient information, consequently, in many cases, increasing the time of detention there is nothing to gain by cutting funded immigration advice and assistance to asylum seekers arriving without valid visas. There is, however, much to lose including placing refugees in danger of persecution, torture or death. Is it ethical/realistic to expect pro-bono lawyers to fill the gap this cut presents? It is not ethical neither realistic to expect pro bono lawyers to fill the gap. See Mirko Bagaric and Penny Dimopoulos, Legal ethics is (just) normal ethics in seminar 3 notes. It discusses the downside of pro bono and how society can t expect lawyers to fill in the gap when they aren t paid to do so/ the issues of pro bono being expected or mandatory. Are laws (international or domestic) being broken in Australia s treatment of asylum seekers on Manus Island? Are there issues with the law being in a grey area on Manus Island? See - applicable legal standards (Amnesty International, This is breaking people ) 3. Access to justice: economic issues Access to justice: Baron and Corbin p Initiatives such as pro bono and other service arrangements are not sufficient enough to create equitable access to justice for everyone p206 Lawyers however have the responsibility of promoting access to justice. This includes support for structural changes that widen access p206 The problem of inequitable access to justice: Access to justice is important on both a personal and social level, as well as being vital to democracies and the rule of law Quoting Davis and Turku by providing access to justice, governments enhance their legitimacy, improve their ability to create social change, and facilitate economic development p207 Access to justice uphold the rule of law, as it ensures that individuals are protected from arbitrary power, have their rights upheld, and that due process is followed p207 Additionally, it proposes that everyone is subject to the law no matter who they are p207 The problem with access to justice stems from both procedural barriers as well as difficulties faced by disadvantaged groups p208 The meaning of access to justice: = the mechanisms by which the individual may seek legal assistance p208 involves 3 key elements (Sackville Report) p209 - equality of access to legal services - national equity - equality before the law due to the focus on mechanisms, in combatting access to justice, people generally focus on overcoming procedural barriers e.g. efficiency, cost of proceedings, organisation etc. p209 Baron and Corbin argue that we need to look beyond legal services and consider: - p209 - the equal ability of all societies to access processes and enforce laws - that the widely protect rights under international law may not exist within the domestic system