Why don’t we have the right to free legal representation in Australia?

by Sydney Criminal Lawyers

Unlike the USA, there is no right to free legal representation in Australia.

We must either pay a lawyer to represent us, qualify for assistance such as Legal Aid or remain unrepresented.

In fact, court cases have confirmed that people charged with criminal offences are not entitled to state-funded represented. Only 150 years ago did we get the right that all people accused of crimes may be represented by counsel. Before then, there was no such right.

In fact, under the old common law, a person charged with a felony actually couldn’t be defended by counsel.

Now we have the right to representation at our own expense, but not at the public’s expense.

So while there are avenues where defendants with limited financial means can explore to find help, none of these are a guaranteed right.

The Legal Aid Commission does not have the resources to help all eligible candidates and in addition there is threshold criteria to meet, particularly your income.

For Commonwealth crimes a person has the right, within two weeks of committal, to ask the judge for counsel.

The justice or judge may then appoint someone to represent the defendant if they are convinced that the defendant cannot afford adequate counsel on their own and that it would be in the interests of justice to do so. Alternatively the matter could be referred to Legal Aid.

However in Australia, we also have the right to a fair trial, which is one of the core principles of our justice system. No one, understandably, really wants to be footing expensive legal bills of murderers when there was never really much doubt of guilt. Just how much public money should be spent on defending criminals?

And even if we were to adopt such a right there are questions about what exactly this would include. For example would it be a right to choose the quality and level of experience of your lawyer?

However to counter balance these points is the fact that it is possible for an innocent and poor defendant to be convicted.

The prosecution in a trial has the advantage of good legal advice and access to vast state resources that will often overshadow those of a defendant, even one with reasonable means.

Anyone who has ever had the need to engage a lawyer knows that costs can add up quickly and not everyone can afford an expensive criminal defence lawyer.

Neither the prosecution nor judge have any duty or obligation to disclose to the person accused issues that could come up in the trial. 

Even in the absence of representation for the defendant, a judge may provide only a very limited amount of assistance, in order to balance out any imbalance in the presentation of the prosecution and defence cases.

This can make it very difficult for people of limited legal knowledge to understand the potential strengths and weaknesses in their case.

Of course the consequences of being unrepresented in court depend on the seriousness of the trial.

In less-serious local court cases, where the defendant is before a magistrate and may be less-likely to be imprisoned, the danger of being unrepresented can be less than in a District or Supreme court jury trial.

It is recognised that a person appearing unrepresented is at a disadvantage.

But the law as it currently stands is that a right to state-funded representation decides that this imbalance is not to be corrected by provision of free counsel. Instead, this is for the trial judge to overcome.

To put it differently, while we don’t have right to state-funded representation, we do have the right to a fair trial.

And if this right to a fair trial is compromised by the fact that a defendant does not have legal representation, through no fault of their own, the judge should grant any request for an adjournment during the court proceedings.

A trial judge must adjourn, stay or postpone proceedings if the defendant wishes in order to get legal assistance, unless there are exceptional circumstances. 

If you have been caught up on the wrong side of the law and think you may need some legal advice, Sydney Criminal Lawyers is a highly experienced law firm who have a proven track record of achieving great results for clients. Visit our website to find out more.


We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

Protected by FormShield

We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.