Australian Law Assignment: Becoming a Lawyer in a Globalised World
Task: Prepare a well-researched Australian law assignment responding to the following questions:
- The rule of law is a fundamental principle of the Australian legal system. What do you understand the concept of the rule of law to mean? In your answer, provide some contemporary examples where application of the rule of law has been in doubt.
- In 2018 the case of Nicola Gobbo made headlines around the country
Ms Gobbo, a criminal law barrister, was registered as a secret police informant over an extended period of time. She not only passed on confidential information about her clients to the police, but also forged intimate personal relationships with police officers and clients, while also defending some of those clients in criminal cases prosecuted by Victoria Police. The Police later paid her a confidential fee of $2.9m for her services.
Discuss the ethical issues arising from this case, drawing on the ethical and legal duties of legal practitioners you have learned about. Are there conflicts between these duties in this case, and how could these conflicts have been resolved.
- Consider the following statement. ‘The Australian Constitution contains very few protections of fundamental rights and freedoms. As a result, Australians – some more than others – are vulnerable to having their human rights undermined.’
Do you agree? Critically discuss this statement supported by examples.
The key purpose of this Australian law assignment is to identify the relevant law and policy and provide reform suggestions that are applicable within the given case study, as well as addressing the issues that have been identified and learned during the course. The overall study will focus on the three questions that generally focus on the rules and regulations, legal practices or the legal practitioners' duties, as well as the social and political issues raised by the given questions. The first question is based on the concept of the rule of law wherein twocases of contemporary examples where the application of the law rule has been in doubt. The second question is based on the case about Ms. Gobbo, who is a criminal law barrister, wherein she practices her duty against the law and practices her duties by considering the ethics in the profession. The third question is based on the fundamental rights and freedoms under the Australian Constitution.
The rule of law is said to be the process, system, practice, institution, or norm that promotes the fairness of all citizens prior to the law, protects a non-arbitrary type of government, and more commonly prevents the arbitrary practice of authority1 . The rule of law has been articulated as a protean and rare value of the political convention as it is said to be the different form of arbitrariness that reflects absolutism, despotism, totalitarianism, and authoritarianism. Centrally, the rule of law includes the consistency and self-control value personified in the government laws slogan2 . In the year 1885, A.V Dicey initiated a classical creation within the law rule and asserted wherein the rule of law has certain meanings:
Firstly, it means the unconditional dominance or prevalence of common rule as conflicting to the arbitrary power impact. Englishmen are dominated by the law, and by law only, wherein an individual might be punished for a violation of rules, but they might be punished discretely. Generally, it means that again equality before the rule within all the communities to the common regulation of the land sanctioned by the common law courts; in this case, the rule of law prohibits the concept of any official exceptions to the rule that dominates other citizens or from the common tribunals’ jurisdictions.
One of the current relatable examples where the claim of rule of law has been in doubt is the case of King V. Burwell. As per the case study, on 4 March 2015, there was an oral argument heard by the Supreme Court in King V. Burwell, and hence this case is considered to be one of the significant cases, with the involvement of the Patient protection Administration and Affordable Care Act, also referred as Obamacare. The main reason for considering the King significant was because a huge amount of money was at stake, with the requirement of fundamental improvisation to be implemented in Obamacare, and the most crucial was the insinuation of the rule of law. In this case, the action of the president towards King was said to be unlawful, the action of the president, governing conspicuous down was important to warrant the consistent cogency of the rule of law3 . From the beginning periods of the Republic, one of the major elements of the constitution was the government was to be governed within the law, and not just by a person. Apparently, the elected leaders are to be constrained under the statute book of the constitution of the nation. Also, the laws are to be followed by the government officials, as it is equally implemented on them as well. If the government officials will not be driven by their predilections, then it may avoid making arbitrary decisions, keeping the discretion of the executive within the appropriate ground. However, with the release of Guantanamo internees, without prior notification to the congress, as per the law, the offense of the president ranges here, though the action was clothed by the inaction of the congress, with the authority for the suspension of the law of immigration, claiming him the power to regulate within the congress session. It was cited as an example of the overreach of the executive, where the actions of the president in kings were seen overruling the rule of law.
Another example of the doubt in the rule of law can be seen in the case of the conflict between R Jackson and the Attorney- General when the Lord Hope of the UK house claimed that the rule of law as imposed by the court, has the ultimate power of controlling on which the constitution is based on4 . However, the Supreme Court of India further stated that comes under the basic part of the constitutional structure of the country, and hence, it cannot be amended by the parliament to repeal or demolish it., even by the process for amendment postulated within the constitution.
As per the given case study, it can be said that Nicola Gobbo, as one of the well-known criminal law barristers, did not work with professional legal ethics. Hence, considering the case study, it can be said that Ms. Gobbo did not meet the terms of ethical and legal duties of legal practitioners. All the legal professional members enclose a supreme obligation to the administration and court of integrity5. This obligation overcomes all other duties, particularly in situations where there might be a conflict of duties, for instance, following the directions of clients if those directions are conflicting with the obligations of the practitioners to the court, despite the fact that this duty impacts the professional conduct within the relationship between client and Solicitor as it is the broad responsibilities and every legal professional member is commended for holding the neutral and independent supervision of integrity6 . Hence, it is significant that authorized practitioners like Ms. Gobbo must conduct themselves with reliability, deliver experienced support to the court of justice and support communal assurance in the system of court. In order to perform their obligations, authorized practitioners are needed and anticipated to deal with other legal professional members with integrity and courtesy. However, the ethical and legal duties of legal practitioners under the regulations of professional conduct, creating it significant for the duty solicitor like Ms. Gobbo to turn out to be familiar by means of the other regulations. It is significant to remember that a breach of conduct rules under the Australian Solicitor can account for unsatisfactory professional wrongdoing.
However, under the Conduct Rules of Australian Solicitors for legal practitioners wherein practitioners neither must nor engross in conduct that shows scandalous or dishonest that would represent that the solicitor is a right and right individual to conduct law7 . Hence, it would reduce the assurance in the court of integrity or carry the profession into disregard. Thus, the legal practitioner should also evade any conciliation of their integrity and independence in the profession. Hence, as per the study, it has been known that the responsibility of duty solicitor at certain times had to perform under stress as this stress emerges as of time restraints, the requirement for multifaceted appearances of court, and the dealing task with distressed or concerned defendants. Moreover, the solicitor's duty is held answerable to a similar standard of professional conduct wherein there is an official solicitor as per the case of Halliwell v Kraft  SASC 2634; Milera v Korber  SASC 9474 on the authorized comment on the work of Solicitor8 . As per the law council of Australia under section 427 of the legal professional uniform law and legal services under part 9.2, the fundamental duties of solicitors is to act in the client's best interest in any matter wherein the Solicitor promotes the clients and be courteous and honest in all undertakings on the legal practice. Additionally, they need to deliver competently on legal services, attentively and as swiftly as practicable possible, should not accept any bribe to their professional independence and integrity, and should meet all the legal terms with law and rules.
Identification of duties of conflict and the ways to resolved:
Former clients-while practicing law, a solicitor must evade conflicts between the duties owed to former and current clients, apart from authorized by rule 10.2. A law practice or Solicitor or who is in control of information that is private to the former client where that information may practicably be completed to be a material fact for other client and detrimental to the former client interest if disclosed, must not perform for the current client in that issue unless: the former client has provided authorized written sanction to the law practice or Solicitor so performing, or an efficient facts blockade has been formed 9.
Performing for other than an individual client- Conflicts might also take place where a lawful practitioner is solicited to symbolize other than individual client included in specific facts, for instance, co-charged accused under Australian Solicitors’ Conduct Rules.
Practitioner's own interest- A solicit or law practice ought to not perform for an accused where the practitioner is attentive that the concern of the defendant in the issue is, or can be, in conflict with the own interest of the practitioner.
Nevertheless, it can be said that these conflicts could be resolved with the proper jurisdiction by the prosecutor and by identifying the guiding principle that creates the obligations and roles of the solicitor. Hence, the solicitorneeds to hold the law practice as per the guidelines of the court as well as the community, the victims, the accused, and security guidance. There must be a realistic view of assurance and acceptable, reliable, and considerable that an illegal offense recognized to the act needs to assured by the defendants.
The constitution is said to be a set of rules, based on which the country or the state functions, covering all the important aspects of the nation, with the special aim to protect the rights of the citizens, while prohibiting the violation of human rights. It has been claimed that the National Parliament has frequently neglected the role of shielding human welfare, with the major focus on the prospect of other rights unified in the Australian constitution, and the High Courts of Australia. Also, it has been stated that, since 1988, rather than the parliament, Australian Courts has taken measures towards the protection of human welfare, under the law of the nation. But it cannot be sustained indefinitely that the constitution of Australia contains no bill for the rights, as it grants some significant freedom such as the right to trial by jury, under section 80, access to any religion under section 166, prohibition of the obligation of any disability and discrimination under section 117, the liberation of trade and commerce within the states without any charges under section 92, and much several discrimination acts 10.
Apparently, the trial by jury, under section 80, of the Australian Commonwealth, has been said to create a miscarriage of justice while indictment for an offense against any law of the commonwealth11 . The section based on the provision within the constitution of the United States, section 80 of the Australian Commonwealth law faces the difficulties for the usage of the such as ‘on indictment’ in the very beginning of the framing of the sentence itself while quoting the. As a result, it made the foundation of the section narrow, as said by the High Court, that the right to trial by jury can take place only when the actions are brought to on indictment while avoiding the trial to the jury if the summary proceeding is authorized by the parliament12
The trial by jury may sometime have a severe impact over the life of the innocent people, not only contaminating the image of the person in the society, but also punishing the innocent one with the wrong veridiction, based on the infertile investigation. There have been many examples of such cases, where the victim has been found innocent, but only after the imposition of severe punishment, after the trial of jury. One such example is a case of a 22 years old boy Farah Jama, from the state of Victoria, who was accused for the crime of rape of 48 years old women in the year 2006. There was no any witnessed to the crime, and the investigation was totally relied on the evidence of DNA. Without any solid evidence of the crime, the young boy was sentenced convicted for the crime of rape and sent to prison in Melbourne. However, the boy was announced innocent by the jury, but it was only after the boy has served 16 months in the prison. Though the boy has been released from the prison, but justice has been too late for the boy, as the victim, despite of being innocent, has been punished for the long period of 16 months in the prison, while the image of the victim has been contaminated in the society, because of the crime, which was not even committed by the poor victim. Also, another example is a case of Lindy Chamberlain, who was convicted for the murder of her own nine-week daughter, in the northern territory of Australia, and after her trial, she was sentenced for life imprisonment, in the year 1980. It was after 3 years of imprisonment, the innocent victim was relinquished from the prison after the new evidence were discovered, which proved the victim innocent. Though the victims were compensated, after being proved to be an innocent, but those compensations will never be able to help the victim to live with the same image and same life as before in the society, and yet there are several other cases of miscarriages of justice in the nation.
Therefore, after the analysis of such cases, I strongly agree that the right to trial by jury can lead to a miscarriage’s justice, because it may destroy someone’s life, with their wrong convictions, and hence people are vulnerable to having their basic rights undermined.
In conclusion, it can be said that the overall study focuses on the rules, laws, policy, ethical issues as well as the fundamental rights of people under the Australian Constitution. As a result, it can be said that the overall study has analyzed all of the three questions and has been discussed accordingly.
1. MURRAY GLEESON, COURTS and the RULE of LAW (2021) www.hcourt.gov.au
2. Austlii.edu.au, The Rule of Law as an Australian Constitutionalist Promise -  MurUEJL 2 (2021) classic.austlii.edu.au
3.Senator Orrin G Hatch, King v. Burwell and the Rule of Law (May 2, 2015) UCLA Law Review
4.LISA BURTON CRAWFORD, The Rule of Law as an Assumption of the Australian Constitution – AUSPUBLAW (2017) Auspublaw.org
5. The new lawyer ,Nickolas James (Q.1)
6. Liv.asn.au, Code of Ethics (2021)
7. Fundamental duties of solicitors are stared in part 4 of the conduct rules. (Q2)
8 lsc.sa.gov.au, Legal Professional Ethics (2021) lsc.sa.gov.au
9.Nsw.gov.au, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (2021)
10 Rosalind Dixon, “An Australian (Partial) Bill of Rights” (2016) 14(1) International Journal of Constitutional Law 80.
11 the right to trial by jury on indictment for an offence against any law of the Commonwealth—s 80; 11
12. Jacqui Horan, All about Juries: Why Do We Actually Need Them and Can They Get It “Wrong”? (March 15, 2019) The Conversation