Something is with the grant of legal aid to those charged over an incident at the Iranian Embassy earlier this year. Eight of 13 who applied got legal aid. The committal hearing is to resume in September.

It must be said at the outset that the case is before the courts and in issue of the grant of legal aid has nothing whatever to do with the merits of the case.

It has been estimated that the legal aid will the taxpayer about $1 million. That is an awful lot of money for just one case. It has resulted in caustic criticism, especially on talk-back radio in Sydney. The shadow attorney-general, Peter Costello, has also weighed in. Several questions come to mind immediately. Why so much money? What effect will it have on the ACT legal-aid budget? What role, if any, did the Commonwealth have? What sort of legal aid, if any, should be granted to non-citizens? And why did these defendants get lawyer-of-choice aid?

The incident at the embassy got wide publicity. An SBS film crew was on hand and filmed much of what happened. The incident raised questions about media ethics. At what stage should a camera-operator cease filming and start helping injured people? At what stage and in what circumstances should a media organisation inform authorities of potentially violent demonstrations. It also raised questions about embassy security and Australia’s obligations under the Vienna convention. However, none of these questions has anything to do with the merits of case or the issues before the magistrate at the committal hearing.

The case should not be a drawn-out, complicated matter. It is complicated by the fact that there are 13 defendants and the charges are fairly serious, but not to the extent that this case should warrant $1 million in legal fees.

The public would be justified in wondering whether essentially irrelevant attendant publicity and wider diplomatic questions have caused this case to attract unnecessary complications which would not have arisen with similar charges in an everyday situation.

It is clear that $1 million would be a major drain on the ACT Legal Aid Office’s resources. Unless there were extra funding, some other litigants would not obtain aid and be forced to represent themselves, abandon their cases in civil matters, or beg or borrow to get their own lawyers. Indeed, the head of the ACT Legal Aid Office, Chris Staniforth has said the case has the potential to wipe out his whole budget for the rest of the year.

Mr Costello, no doubt seizing the opportunity to make some political mileage, has asked how these defendants got lawyer-of-choice aid and what role did the Minister for Justice, Senator Michael Tate, have in that? He said, “”Somehow $1 million of aid has materialised for these applicants, some of whom are not Australian citizens.”

Senator Tate has made it quite clear that neither he nor his office had any part in determining whether these accused meet the eligibility criteria laid down by the ACT office. That was a matter for the ACT. However, he did say that if they met the criteria, then the Commonwealth would provide extra funding. Further, he said weight should be attached to the fact that bonds of trust had been built up between the accused and their present lawyers because these lawyers had been successful in obtaining bail, and if this happened the Commonwealth would meet the extra cost so the ACT office was not left destitute.

In effect this was an encouragement to give them lawyer-of-choice aid. It was an extravagant thing to do. No doubt the present lawyers are very capable and would do an excellent job. No doubt they have built up bonds of trust. However, the cost issue is of greater importance. This is because the legal-aid cake (whether ACT or Commonwealth) is finite. The more money taken up by this case the less there will be for other cases. These defendants could be ably and well represented by legal-aid solicitors and the public defender. If they want their own lawyers, for whatever reason, they should pay for it themselves. If they cannot afford it, they cannot expect the public to pick up the tab. Justice demands legal representation for all people accused of serious crime in Australia, but it does not demand the best or the most expensive lawyers in town, nor even the mid-range. It demands adequate representation.

That may sound harsh, but there are protections against incompetent representation: the system of legal education and admission procedures, the system of professional regulation, the ability of a judge to ensure fairness during trial and in the last resort the appeal system.

The question of non-citizens being granted legal aid has arisen in this case. Non-citizens should be entitled to apply to aid like anyone else. It has no comparison with refugee and other immigration cases. It has no comparison with non-citizens getting social welfare. The difference is fundamental: the Australian state has charged them with a serious crime. Given that threshold element, there is an in-built safeguard against widespread abuse and there is requirement of justice that the state that charges people should not misuse its unequal power by having lawyers itself but not providing the accused with the same resource. A civilised state should provide that for all who come before its courts. It is a shame that this is not a legal right in Australia, though, fortunately, it is a rare case indeed where a person accused of a serious crime goes unrepresented.

On the question of Commonwealth funding, some flexibility is required. Strict guidelines will achieve nothing. The important point is that each state and territory must determine eligibility according to means and circumstance for all legal-aid cases. Those offices should also determine the type and level of representation. Having done that, those offices should apply for extra funding in unusual cases involving multiple defendants or some other complicating factor.

It is not for the Commonwealth to make suggestions or hints about the extent or type of representation, even if it is prepared to pick up the tab for any extras.

The best way to maximise the legal-aid dollar is for the local offices to make the decisions. If the Commonwealth has got any extra cash to throw around it would do better to hand it untied to the local offices rather than making unhelpful hints about lawyer-of-choice aid in particular cases.

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