Month: September 1992

Defence pay determination needed a complete overhaul, the Opposition spokesman for Defence Science and Personnel, Allan Rocher, said yesterday.

He was commenting after the Defence Force Advocate, Bob Buchanan, QC, resigned because those responsible for managing Defence resources were also responsible for approving and the initiation of pay cases.

The advocate, a part-time position, represents those putting pay cases to the Defence Forces Remuneration Tribunal.
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The Commonwealth Director of Public Prosecutions called the Australian Securities Commission yesterday a “”gentlemen commercial regulator” without enough interest in jailing corporate crooks.

Michael Rozenes, QC, said the ASC policy had resulted in one law for the rich and another for the poor. Rich corporate crooks got civil penalties, whereas those without any money left were prosecuted under the criminal law.

The policy brought the criminal law into disrepute.

The ASC’s emphasis was on protecting the creditor or the shareholder. Its policy seemed to be that if you imposed a commercial civil penalty that would be a deterrent.
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In the old days Parliament passed laws and to ensure they were obeyed provided penalties. If it is was suspected that someone broke the law the police investigated and pressed charged. That was fine for standard crimes: murder, arson, rape, burglary, armed robbery, assault and the like.

“”Look, there’s a body. Call the cops.” “”Help I’ve been robbed, call the cops.”

Then life got a more complex. New offences were needed in the public good. Criminal sanctions were used for a much wider range of things as the state interfered with individual behaviour more and more. Perhaps it was a response to more individuals not conforming with established religious and social mores. Perhaps it was an intolerance to what had previously be eccentric behaviour.

Anyway, the categories of crime have ballooned. In, say, 1930, for example, an individual could use heroin, go fishing in public waters for what he wanted and shoot which ever ducks he wanted and an individual could discharge whatever waste he liked into the rivers, to use four examples.
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The Chief Minister’s Investigation Unit has called in the police over the leaking of the ACT health budget.

Details of the Budget were published in The Canberra Times on Sunday.

Two police officers arrived at üThe Canberra Times with a search warrant directed at me and the Federal Capital Press yesterday.

The warrant said sought all documents, dairy notes and fax records pertaining to the ACT health budget and all documents or faxes to or from the ACT Health Department or the office of the Minister for Health, Wayne Berry.
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The Real Estate Institute of the ACT has come out in favour of the Government’s plan to take away the lawyers’ monopoly over conveyancing.

It said in a submission to the government that there would be benefits to consumers in lower prices, but acknowledged the ACT conveyancing market was highly competitive and the gain would be small.

The general manager of the institute, Bruno Yvanovich, said this week (sept 21, so change to last week if used on sunday) that there was a trade-off for lower fees. This was a reduction in the level of expertise, which would more likely hit the less-experienced first-home buyers would be more likely to use cheaper conveyancers rather than lawyers.
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These days, of course, one does not have to steal a document to get information. We have the remarkably useful fax machine. Not only have they given us another very useful word to get rid of the X in Scrabble (though some purists would disagree), they have given us the ability to receive information without having to steal a document.

The perplexing question is: can one “”steal” information? The question would sit as well in a Philosophy I examination as in a Criminal Law I or Property I examination.

The criminal law describes stealing as the taking away of property with a intention of permanently depriving the owner of it. Thus, before there can be a stealing there has to be property. Most people think of property as either land or something tangible that can be touched or moved. But our law recognises intangible property, too. The main rights are those over intellectual and industrial property: copyright, trade marks, patents, designs and trade secrets.
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The ACT Chief Justice, Justice Jeffrey Miles, has put a mid-way course. He says we are neither; we are a half-way house.

In the latest Australian Law Journal he took issue with a view put the Deputy Editor of The Canberra Times, Jack Waterford. Waterford had said the ACT Supreme Court ought to be within the sovereignty of the people of the ACT.

Justice Miles said his purely personal response was: “”I wonder whether the people of the ACT think they have, or want sovereignty. I doubt whether the Commonwealth intended to give sovereignty to them. Look at the terms of the ACT Self-Government Act whereby the Commonwealth retains the power to dismiss the Legislative Assembly or to disallow its enactments.”
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Henry Cecil (the nom de plume of a judge who wrote humorous legal novels) described the plight of the unrepresented pauper in one of his books. In those days, there was no legal aid provided by the state. Rather, the poverty-stricken were represented by lawyers who were equally poverty-stricken. These lawyers could not get more lucrative work, so they hung around the courts hoping to get some lag to engage them for a pittance, which was better than being unemployed. These were called dock briefs. And the lags paid whatever they could.

One of the Cecil’s lags, charged with his fifth or six break and enter, was advising a younger lag on how to select a lawyer to do a dock brief. Always take the young ones, he said. The old ones were proven to be no good at the law, otherwise they would be applying their learning to more lucrative cases. With a young one you had a 50-50 chance of getting of getting someone bright but yet to move on to bigger and better things.

Now we have legal aid.

Legal aid is restricted mainly to criminal cases where jail or job loss is likely, family law (provided the parties have done everything to settle) and personal injury.

The plight of the ACT’s Legal Aid Office gained prominence recently over the incident at the Iranian Embassy. Providing legal aid to all those charged would gut the aid budget unless the Commonwealth came to the party, which it did.

High profile cases like that will attract top lawyers despite the lower fees paid by legal aid, no doubt because such cases provide great professional challenge.

But what of the run-of-the mill cases?

The ACT Legal Aid Office recently updated its guidelines. It remains the case that you have to be desperately poor to get legal aid. Grants of aid depend on income (making allowance for housing and dependants), net assets (making allowance for housing, furniture, clothes, tools of trade and car) and the estimate cost of the case. Applicants always have to make some contribution to costs.

If the case is under $3000, aid cuts out at $360 a week. For bigger cases, those on $350-$360 a week have to contribute the first $5550 and a further $410 for every $10 of weekly income thereafter.

All the applicants’ assets over $3000 have to go to the case. Usually, about a third of the assets under that have to be applied to the case.

Clearly, you have to be skint to get legal aid, or if you are not, you certainly will be afterwards.

It means, of course, that hundreds of moderately poor people are denied legal aid. They either go unrepresented or have to beg or borrow from friends and relatives.

In 1991, 3798 people applied for aid and 2448 got it, about half of those were handled in house and the rest contracted out to the private profession (the latter-day dock brief).

The total budget is $4.3 million. This means the case average is $1720, including all the overheads of the central office. Now, we all know that you can’t get a top-end-of-town lawyer to sneeze for $1720 these days.

The tradition has been for counsel to charge about 20 per cent less than the standard mark, but the Legal Aid Office is paying less than this. Its own staff is clearly overworked and underpaid.

It must therefore be the case that those on legal aid being represented by the private profession are either being represented by the altruistic or by those who are not getting or cannot get the more lucrative work. It must also be the case that those being represented by salaried staff are being represented by people with a very heavy workload and that must affect the time available for each case and therefore the overall quality of the service.

There can be no doubt that people on legal aid are being represented by competent, diligent lawyers. Many lawyers choose to go do legal aid work for the experience and out of a sense of public duty.

However, as the funding squeeze on legal aid gets tighter, it must affect the quantity and quality of representation: one representation for the rich; another for the poor.

An even worse off group are those who do not qualify for legal aid, but are by no means well-off. Many must abandon their rights in the face of the cost onslaught.

That said, the office always provides one free interview to applicants. This alone can go a long way to crystalising issues.

What can be done? Experience tells us that making the law cheaper and simpler is a hopeless cause; the trend is the other way. Perhaps we should teach more law in schools to demystify it and to provide the last resort of self-representation (at least in simpler cases) as legal-aid budgets shrink and the cost of running a case privately gets more prohibitive.

A machine that tested blood at Royal Canberra Hospital (North) was not working at a critical time during a baby’s operation, a coroner’s inquest was told yesterday.

Brian Lankuts, aged five months, died on November 21, 1990, after surgery to correct a skull abnormality which threatened to compress his brain.

The coroner, John Burns, heard that a machine that tested electrolytes and potassium levels in blood was not working that day. A fall or rise of potassium can cause cardiac arrest and death.
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The ability to determine how a baby was going during an operation was irretrievably clouded by the absence of records, the ACT Coroners Court was told yesterday (fri18sept).

Anaesthetist Dr Raymond Cooke was agreeing to a proposition put by Stuart Littlemore (acting for three surgeons) at the inquest into Brian Lankuts, who died aged five months on November 21, 1990, after surgery to correct a skull abnormality which threatened to compress his brain.

Mr Littlemore: “”Would you put it as high as this: the ability to assess the child’s performance during the operation was irretrievably clouded by absence of records.
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