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Nationalise the Profession

25/7/2017

 
Vol 12, Issue 1

BEN WILSON
​
Stop wasting time arguing about freedom of speech when we should be nationalising the legal profession

We’re all aware of the brouhahah surrounding section 18C of the Racial Discrimination Act, about the tension between protecting racial minorities from abuse and protecting the public from censorship.

In fact, s18(c) protects no one (barring the rich or well connected) from anything, and here’s why: either bringing or defending an action under the law could well make you bankrupt.
​

On the 28th of May, 2013, Cindy Prior, an indigenous woman working at the Queensland University of Technology, asked three white students to leave a computer room reserved for indigenous students. They did so, but posted Facebook comments critical of the policy, at points joking about being white supremacists.
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Ms Prior brought an action under 18C seeking apology and damages from the university and eight students, claiming that the Facebook posts were reasonably likely to offend indigenous students. A number of the students settled out of court. Three of the students contested the claims.

On the 4th of November 2016, Judge Jarret summarily dismissed the actions against those students, finding that there was no reasonable prospect of success. Costs in the order of $200,000 were awarded against Ms Prior; she now has bankruptcy actions pending against her.

But was she unreasonable in bringing the action? The law prohibits public acts, done because of the race of a person or group of people, that are reasonably likely to offend members of that group. Were the comments criticising indigenous only spaces in the university ‘because of’ the race of indigenous people? It seems possible to think so, particularly in light of the purpose of the statute.

The University obviously believed that indigenous students were disadvantaged, and needed assistance in the form of exclusive computer spaces. Is it obviously unlikely that a member of that group would be offended by public comments attacking the policy – with the implication that the disadvantage suffered by the group is insufficient to justify it?

18D(c)(i) exempts ‘fair’ comments about matters of public interest. Was the criticism obviously ‘fair’? One of the respondents had likened the indigenous-only space as ‘segregation’, invoking apartheid or the Jim Crow South; was this a ‘fair’ comparison?
As it is, I agree with the outcome. I don’t want positive discrimination policies to be put beyond public comment, even though beneficiaries of those policies might find the criticism hurtful. However, given the text and context of the law, I don’t believe it was unreasonable for Ms Prior to have brought the case. She certainly did not deserve to be bankrupted for bringing an action under a law specifically designed to protect her.
All of which makes the debate about the law somewhat surreal. Any question of whether removing ‘offense’ from 18C would unacceptably weaken the protection the law affords to racial minorities is ridiculous given that any person bringing an action under the law risks losing their home and their livelihood in costs. Likewise, any question of whether 18D satisfactorily protects freedom of speech seems absurd: defending any such action also risks financial ruin.

Clearly, and I write this without intending any irony or hyperbole, our whole legal system is a sham and an absurdity. That fees paid by lawyers defending a charge or a lawsuit frequently surpass any fine or damages that a judge might impose should be a source of inconsolable shame for everyone in the profession. In Victoria, for instance, costs are almost never awarded in criminal cases; the punishment our justice system imposes on an innocent person for the crime of proving their innocence can easily be the loss of their family home.

It is axiomatic that people have a right to justice. Our system of ‘justice’ depends on professional advice and representation. The only just solution I can see is to nationalise the profession of law, just as we’ve nationalised the profession of medicine.


Ben Wilson is a third-year JD student​

More articles like this:
  • Who's Afraid of the Woolf Reforms

The rest of this issue:​
  • What is it Like Being an Anarchist Law Student
  • On Difficult Readings
  • Pardon or Prosecute: Offenders Special Circumstances and the Law
  • Big Data: Challenges to the Freedom of Political Communication through Meme Pages
I pay tax and I vote
25/7/2017 11:58:12 am

"The only just solution I can see is to nationalise the profession of law, just as we’ve nationalised the profession of medicine."

Pray tell, why should taxpayers have to foot the bill for frivolous lawsuits like that of Cindy Prior's? This is quite different to medicine where tax money is spent to benefit the physical health of the populace (which also has flow on effects that benefit the public at large).

The prospect of having to pay costs serves as a deterrent to idiotic suits like that of Ms Prior's, although perhaps the bill should have more appropriately been forwarded to Gillian Triggs and Tim Soutphomasane who egged her on in this matter. But if the taxpayer is footing the bill, there is literally no downside risk to initiating litigation, no matter how ridiculous it may be.

Wrong
25/7/2017 08:50:37 pm

The profession doesn't need to be nationalised it needs opening up

The many formal requirements for appearing in court results in a system where representation is expensive

Let client's trust in their representative & minimalist professional bodies govern the standard instead and representation will become more affordable

The 'law degree' and 'PLT' are modern phenomena; and one questions whether the arguments in their favour are often driven by an anxious profession chilled by the volume of students familiar with the law now graduating across the country

Besides, nationalisation wouldn't increase the amount of lawyers doing court work. & it'd bring about its own hive of issues

Berryn Hinch
25/7/2017 10:01:55 pm

This piece is like:
1. The civil justice system is expensive and inaccessible
2. Here is an example of that
3. Therefore, the only solution is to nationalise the system.

Sooo much more work to do to live up to the title of this piece.

Here's a problem that doesn't even involve complaining about tax: law is not medicine. If legal services are nationalised and allocated according to need - like medical services - won't this end up mainly serving commercial interests anyway? Because BHP Billiton needs a lawyer more often than I do.

So maybe partly nationalised? Okay, we're getting there. So what's in and what's out? If it's partly nationalised there would still be the power imbalance allowing stronger parties to drive up costs and outcompete a public service. A medical patient in the Royal doesn't really have to go head to head with one in the Epsworth do they? How to deal with this difference?

These are all the things that aren't addressed because you've talked about 18C for most of the article.

Duncan
29/7/2017 02:29:47 pm

This article makes a very important point. Legal services aren't that different to medical services - the costs of accessing legal help are absolutely prohibitive. Nationalising the sustem seems like good proposal

Baby Steps
1/8/2017 04:31:08 pm

In a utopia it should be nationalised, but the likelihood of this is effectively zero. A more realistic proposal, and a better place for our focus, is increasing the level of access and funding to legal aid services.


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