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MICHAEL STANTON[*]
Imagine the scene. Mr A R Castan, QC takes his seat in front of a differently constituted High Court and nervously awaits the decision in Mabo v Queensland (No 2).[1] Judgment is given, and the State of Queensland is victorious. When making costs orders, the Court politely admonishes the barrister and his lawyers for encouraging the litigation. The doctrine of terra nullius having been applied for over 200 years, the case never had a reasonable prospect of success. It might not necessarily have been hopeless or bound to fail, but in seeking to turn the legal tide against a common law principle that had been a foundation stone of the Australian legal reality, it was optimistic at best, and ultimately amounted to irresponsible and costly litigation. Mr Castan QC should have turned his mind to these considerations more seriously. Accordingly, the Court makes personal costs orders against him, his junior, and the solicitors for Eddie Mabo, and they are forced to pay the costs of the litigation from their own pockets. It is unsurprising when other legal minds choose not to agitate the point again.
Luckily for Mr Castan, QC, and those who believe in the development of the common law, the Migration Litigation Reform Act 2005 (Cth)[2] (‘the Act’) does not give Parliament the power to turn back time and reverse High Court decisions. Its ambit is largely restricted to migration law. Nevertheless, the Act raises issues of concern not only to those who believe in the rule of law and the evolution of the common law, but also those who believe that we have an ethical duty to afford legal representation to those most powerless in our society. In short, the Act empowers courts to make personal costs orders against legal practitioners who ‘encourage’ migration litigation with ‘no reasonable prospect of success’. Such litigation does not have to be ‘hopeless’ or ‘bound to fail’. The deterrent effect of such legislation on pro bono lawyers — those described by the Federal Court as ‘acting according to the highest ideals of the law’ and seeking to give voice to those ‘who are perforce voiceless’[3] — is clear.
This article first canvasses the Act, focusing on the provisions that demand courts to consider making personal costs orders against legal practitioners. Second, it considers the purpose of the legislation as ascertained from the second reading speech. Third, through the prism of Ronald Dworkin’s jurisprudence, it examines the consequences of the Act on pro bono advocacy, the evolution of the common law, and the efficiency of the courts.
The Act provides for many changes to Australia’s migration law system,[4] too many to be discussed suitably in the one article. This article focuses on s 38 of the Act, which inserts Part 8B into the Migration Act 1958, and is entitled ‘Costs orders where proceedings have no reasonable prospect of success’.[5]
As amended by the Act, s 486E of the Migration Act is now entitled ‘Obligation where there is no reasonable prospect of success’. It provides that:
(1)
A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
(a)
the migration litigation has no reasonable prospect of success; and
(b)
either;
(i)
the person does not give proper consideration to the prospects of success of migration litigation; or
(ii)
a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
Subsection 2 provides that:
(2)
For the purposes of this section, migration litigation need not be:
(a)
hopeless; or
(b)
bound to fail;
for it to have no reasonable prospect of success.
Subsection 3 provides that ‘[t]his section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant’.
In turn, s 486F(1) provides that if a person contravenes s 486E, the Court may make a personal costs order against that person. Notably, s 486F(2) mandates that if a Court, when giving substantive judgment, considers there was no reasonable prospect of success, the Court must consider whether such a costs order should be made.
These provisions beg many questions:
• First, why does the Act only apply to migration cases? Why should a lawyer who brings an unreasonable case in other areas of law not be similarly liable? It cannot be merely a matter of caseload, as all courts, in all jurisdictions, endeavour to deal with a high degree of unmeritorious litigation daily. As the Law Council of Australia’s submission to the Senate Legal and Constitutional Legislation Committee’s Inquiry into the Act states ‘[t]he insertion of these provisions into one area creates the impression that the government is trying to drive lawyers out of immigration cases’.[6]
• Second, what type of case has ‘no reasonable prospect of success’, but is not ‘hopeless’ or ‘bound to fail’?[7] As identified by Professor George Williams and Dr Ben Saul, the provisions clearly depart from the common law test for summary judgment, which requires a case to be manifestly groundless.[8] Does this mean that a case with some prospect of success, albeit slim, may still be unreasonable for the purposes of the Act?
• Third, what does it mean to ‘encourage’ litigation with no reasonable prospect of success? As the Law Council of Australia’s submission notes, ‘[o]n the face of the Bill, any solicitor who provides advice to a litigant could be caught by the provisions — even if the solicitor does not appear on the record as having given advice’. Given that the Act purports to apply to those ‘despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant’, how does that affect barristers who are ethically bound by the cab-rank rule?
• Fourth, how is the criterion that the person did not give proper consideration to the prospects of success of the migration litigation to be interpreted? Is it a subjective or objective test? Under s 486I of the amended Migration Act, a lawyer must not file a document commencing migration litigation unless it is confirmed in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. This would be prima facie evidence in satisfaction of any subjective criterion. Doubtlessly there will be those who will argue that if a case is found not to have a reasonable prospect of success, then it must not have been properly considered. Will ‘proper consideration’ allow for mistakes and misjudgments, or are lawyers expected to be infallible?
• Fifth, is litigation in the ‘public interest’ of challenging common law principles related to what the court process is designed to achieve under s 486E(1)(b)(ii) of the Act, or will this be perceived as an improper purpose?
It is important to consider the intention of the Act before there is a more detailed discussion about its pitfalls.
In the second reading speech to the Act, the Attorney General, the Hon Phillip Ruddock MP, explained:
The government has been concerned about the high volume of migration cases, unmeritorious litigation and delays which are impacting on the federal courts and the migration system … In recent years, the government has won over 90 per cent of all migration cases decided at hearing. Of course the government recognises that not all unsuccessful cases are unmeritorious. However, the very large proportion of unsuccessful migration cases is a strong indicator that some unsuccessful visa applicants are using judicial review inappropriately to prolong their stay in Australia.[9]
Others have commented on why those statistics are misleading, and the reasons for the high number of unsuccessful appellants at the Federal Court stage, including the fact that the Court is only empowered to consider errors of law.[10] This article will not expand on those reasons now. Nevertheless, the more fundamental point is that the government should not be applauded for being successful in a majority of litigation to which it is a party. The government should not contest an appeal if it does not firmly believe that it will be successful.
Citing the dangers of ‘mass-produced’ applications and the lodging of unmeritorious cases to simply ‘prolong’ an unsuccessful visa applicant’s stay in Australia, the Minister stated:
The measures in this bill seek to deter such conduct and require lawyers and others who provide advice on bringing migration litigation to do so carefully and having regard to the chances of the claim succeeding …
Lawyers acting ethically and in accordance with their professional duties have no need for concern.[11]
However, if lawyers acting ethically have no need for concern, why is this purported problem not dealt with by the existing mechanisms that protect legal ethics rather than by legislative imposition? If there is a need to encourage ethical legal practice, surely this should be done uniformly, and not by targeting one particularly politicised area of concern. The Minister makes the concession that ‘not all unsuccessful cases are unmeritorious’. The question must be asked as to what degree of ‘merit’ is sufficient for a practitioner to be protected from a personal costs order under an Act which specifically enables costs orders to be made in cases that are not hopeless or bound to fail.
The Minister opined that ‘[i]t is grossly irresponsible to encourage the institution of unmeritorious cases as a means simply to prolong an unsuccessful visa applicant’s stay in Australia’. Doubtlessly a majority of lawyers would agree. However, this begs the foundational question — is this happening? It also raises the consequential question — even if it is happening, does the legislation sufficiently remedy the predicament, or will it make matters worse?
When the Senate Legal and Constitutional Legislation Committee called for submissions on the Bill, it received resounding criticism of the prospective legislation from Law Councils, Bar Associations, international organisations and academics. I consider four criticisms of the Act:
• that it provides a powerful disincentive to the pro-bono advocate
• that it will stultify the evolution of migration law
• that it is unnecessary given pre-existing judicial powers
• that it will increase inefficiency in the courts.
The Act adversely affects pro bono advocates; those who give their time willingly to try and help those unable to help themselves, and described by the Federal Court as acting according to the highest ideals of the law.[12] As Julian Burnside QC warned on the ABC’s AM radio program:
The people who do pro bono work for refugees will be discouraged from doing that work. It’s one thing to work for nothing because you believe people deserve a fair go. It’s something else to be told that you’re going to have to pay the government its costs just because you gave it a go and lost.[13]
The National Pro Bono Resource Centre (NPBRC) expands on this point by explaining the reality of pro bono work:
It can be difficult for any practitioner, particularly one acting pro bono … to have the time or resources immediately available to undertake the necessary research and give due consideration to a matter to be able to be satisfied to certify in writing that a matter has reasonable prospects of success before filing the application. It is not suggested that their professional approach to these matters is any less diligent … [P]ro bono clients will often present to lawyers seeking assistance only days before the expiry (if not on the same day) of a statutory deadline. Lawyers … are also facing the difficulties of trying to assist a client who is possibly in detention, without a good command of English, often disadvantaged by lack of access to legal assistance or information, and more often than not with little understanding of the complex Australian migration law system.[14]
This presents a pressing concern for the pro bono advocate. Even if the judiciary interprets the statute narrowly, all it takes is one federal magistrate to decide that a given case had no reasonable prospect of success and the advocate would find they were paying the government’s fees or alternatively fighting an appellate battle to overturn a discretionary costs judgment.
The jurisprudence of Professor Ronald Dworkin illuminates the problem faced by pro bono advocates under the Act. Dworkin essentially argues that there are correct answers to legal problems.[15] His mythic judge, Hercules, with immense wisdom and knowledge, and the advantage of time (a luxury not enjoyed by the typical pro bono advocate) is able to ascertain all legal principles and rules which results in one answer being superior to any legal problem. Dworkin’s jurisprudence, while often criticised, does say something important about the way the law regards itself.
Many judges, litigants and members of the community perceive that the judiciary determines ‘correct’ answers to legal problems. Often these are hard fought cases, where both sides will have provided helpful submissions, and the bench might even be divided as to the correct outcome. But at the end of the day, one side is found to be right, and the other wrong. When the given judge applies legal norms to a factual scenario and makes their decision, one side’s solution to the legal problem is preferred.
Judges not only act like a stewards monitoring the race and viewing the result at the finishing line but, in giving reasons and making orders, they often present the result as having been decided before the pistol shot at the starting line. Even in closely fought cases, one side is presented as wrong from the outset, and they will be ordered to bear the costs of the litigation. Thus, it can often seem that one side had no reasonable prospect of success from the time they drafted their submissions; if they had done their research with ‘proper consideration’ they would have come to the same conclusion as the judge. How is it then, that the defeated party ever had a reasonable prospect of success?
Of course, the Act goes further than that — it forges an artificiality where a party can have no reasonable prospect of success even though their case was not hopeless or bound to fail. It is not difficult to predict, given the logic of the law, that costs orders will be made against people under the Act even when they genuinely believed they had a case. As the Law Council of Australia warns, there is every chance that the concept of ‘unmeritorious litigation’ will be given flesh and substance.[16] While different judges might well have different standards about what is ‘unreasonable’, some will at least perceive that the unsuccessful party should have known better. Such a scenario is never more likely to emerge than in public interest litigation where parties are seeking to have precedent overturned, and it is to this consideration that we now turn.
The common law evolves with glacial speed. A major consequence of the Act is that it provides a powerful disincentive to those who would argue for reform. As Williams and Saul note:
… where public interest cases are being run to challenge accepted interpretations of the law, there may be ‘no reasonable prospect of success’ in the immediate case, but the litigation may contribute in important ways to the future evolution of common law principles. Discouraging litigation where there is no reasonable prospect of success risks chilling the progressive development of the law, and stymieing the correction of bad precedents.[17]
The United Nations High Commissioner for Refugees (UNHCR) submission expands this argument with considerable eloquence:
Australian migration law is complex. There is not a ‘bright line’ separating meritorious and unmeritorious court applications. This is particularly so in cases that raise questions of interpretation of the Refugee Convention that may be contested in the Australian domestic environment …
[O]n occasion, arguments that may appear novel, lacking in merit and/or contrary to settled law, will ultimately be successful. The High Court decision in NAGV and NAGW,[18]which overturned a line of Federal Court authority dating back to 1997, is a recent and notable illustration …[19]
As the Law Council of Australia observes, there is no compelling reason to ‘stifle the development of the common law in the immigration area’.[20] As a party to the Convention Relating to the Status of Refugees 1951, Australia has an obligation to protect refugees and to be an active participant in human rights discourse. This is an area of law that must evolve from events in the international arena. As a member of the world community, we do ourselves no favours in allowing refugee law to stagnate.
This discussion begs the question of whether such punitive costs orders are necessary in the first place. The group Australian Lawyers for Human Rights (ALHR) submit that the Act is unnecessary — lawyers are bound by their professional obligation not to pursue causes of action that have no reasonable prospects of success.[21]
As submitted by the joint submission of the Public Interest Law Clearing House (PILCH) and the Victorian Bar, where a legal practitioner advances a case that is patently unarguable or without foundation, then that practitioner could already be exposed to sanctions, including personal costs orders.[22] Similarly, courts are already empowered with the means of protecting the integrity of the legal process through summary dismissal. Rather than delays being a product of capricious litigation, ALHR identifies, inter alia, the lack of legal aid support resulting in self-representation for asylum seekers (who often have language difficulties and mental health issues), and the dozens of amendments made to the Migration Act over recent years, as the prime reasons for delay.[23]
If the ‘evil’ sought to be addressed by the Act is the spectre of shoddy migration agents swamping the courts with spurious litigation, then as Williams and Saul state, ‘[i]t is preferable to strengthen the training and accreditation of migration agents, and emphasize the professional responsibilities and regulation of lawyers’.[24] ALHR warns that the ‘risks of a costs order will inevitably dissuade advocates from pursuing difficult but valid cases where there is a real issue to be determined’.[25] This must be seen in the light of the experience of PILCH and the Victorian Bar that it is not in legal practitioners’ interests, either ethically or financially, to pursue unmeritorious litigation.[26] PILCH refers cases to barristers for merits assessment at first instance, and there are many cases where PILCH, on the advice of Counsel, ‘… decides not to grant assistance for representation on the basis that the matter does not have any or sufficient prospects of success’.[27] This is not necessarily a good thing — in a perfect world all prospective litigants would have access to legal advice and representation — but it does address some of the Minister’s concerns and weakens his justification for the Act.
The consequence of discouraging legal representation is not increased efficiency in the courts. There is a strong argument that, far from rectifying the ‘high volume of migration cases, unmeritorious litigation and delays’ identified by the Minister, the Act will make matters much worse. As the UNHCR notes:
Properly advised, asylum seekers would be less likely to institute unmeritorious court applications. Measures to facilitate greater access for asylum seekers to free legal assistance may therefore assist in achieving the Bill’s objective of reducing the number of unmeritorious cases.[28]
The Act must be assessed against the problem it purports to remedy. In providing a powerful disincentive for lawyers who offer their assistance to people who have no technical knowledge of legal systems, let alone the various eccentricities of the Australian legal arena, it makes it far more likely that these people will enter the process unrepresented.
This exposes the real intention of the Act. It is not to deter unrepresented litigants; the Act also provides for increased powers to summarily dismiss unmeritorious litigation.[29] The Act cynically creates a system where there will be more people denied representation, more unmeritorious litigation, and more applications summarily dismissed. It seeks to deny representation so that the caseload may be dealt with more swiftly without people being afforded legal protection. Why provide a disincentive to represent people to those who are already controlled by ethical and disciplinary regulation, and leave the high volume of litigation to those most unable to construct legal arguments themselves? Most importantly of all, these people might have merit in their cases, but lack the legal education and language skills to discover those points.
As stated in the joint submission of PILCH and the Victorian Bar: ‘it is important to remember that cases that are unsuccessful at first instance can succeed in an intermediate appellate court or ultimately in the High Court’.[30] PILCH and the Victorian Bar point to the example of the self-represented asylum seeker litigant in Dranichnikov v the Minister for Immigration and Multicultural and Indigenous Affairs.[31] In that case, the High Court commented that the meritorious argument accepted by the High Court was ‘lost in the morass of argumentative and illogical propositions that he advanced generally’.[32] For PILCH and the Victorian Bar, ‘this highlights the difficulty in identifying “hopeless” cases and the need for legal aid to fund representation’.[33]
This Act fails on its own criterion for success. However, denying people representation does more than make the legal system less efficient — it exposes them to a real risk of injustice.
Charles Darwin once remarked, ‘[i]f the misery of the poor be caused not by the laws of nature, but by our institutions, great is our sin’.[34] Parliament called for comment on this Act. A vast range of legal associations, human rights bodies and individuals responded to this invitation and were then ignored. It is not an overstatement to say that the commentary was damning of the legislation. It remains unknown whether the Act was endorsed or opposed by the Migration Litigation Review, conducted by Hilary Penfold, QC between 2003 and 2004, the government having chosen to make the Review's findings and recommendations unavailable to the public who funded it.
The Senate Legal and Constitutional Legislation Committee report on the Bill of May 2005 made the Bill's pitfalls abundantly clear when it concluded that ‘the practical result of the proposed provisions will be to discourage people from helping refugees and migrants’,[35] and ‘one of the major adverse impacts of the Bill would be the reluctance of people to assist others with judicial review applications due to the threat of a costs order being made in the future’.[36] Nevertheless, the bipartisan committee recommended that the Bill be amended to insert a requirement that the operation of the Act be reported on to Parliament 12 months after commencement. That recommendation, while insufficient, was disregarded.
The debate on ‘unmeritorious’ migration litigation calls for candour and transparency. As ALHR observes, ‘[t]he consequences of getting these decisions wrong may be life or death for the individual concerned’.[37] Through examining the Act, its purpose, and its likely consequences, this article has concluded that we are in real danger of sacrificing the rule of law on an illusory altar of case management. In Ruddock v Vadarlis (the Tampa Case), Justice French stated:
The counsel and solicitors acting in the interests of the rescuees in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.[38]
Such a service to justice should not be seen as a threat to be quashed by the legislature. Pro bono advocacy is not a threat to democracy nor its institutions, but rather a testament to their potential for altruism and integrity.
[*] MICHAEL STANTON is a Melbourne lawyer and a volunteer legal caseworker at the Asylum Seeker Resource Centre, West Melbourne.*
© 2006 Michael Stanton
email: michael_d_stanton@hotmail.com
*With deep thanks to Justice Chris Maxwell, President of the Court of Appeal, Supreme Court of Victoria, Alexandra Burt, Emily Byrne, Mathew Kenneally, Helena Konstantopoulos and Daniel Nicholson. The views expressed, and any errors herein, are the author’s alone.
[1] [1992] HCA 23; (1992) 175 CLR 1.
[2] The legislation passed the House of Representatives on 10 May 2005, the Senate on 7 November 2005, and received royal assent on 15 November 2005.
[3] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, [216] (French J).
[4] Including expanding the power of Federal Courts to give summary judgment, conferring on the Federal Magistrates Court the same original jurisdiction as the High Court in migration legislation, and extending the operation of the Migration Act to ‘purported’ privative clause decisions.
[5] The section came into effect by proclamation on 1 December 2005.
[6] Law Council of Australia, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Migration Litigation Reform Bill 2005, Parliament of Australia, Canberra, 6 April 2005 <http://www.aph.gov.au/Senate/committee/legcon_ctte/mig_litigation/> at 15 February 2006, 4.
[7] The Act provides for a different conception of 'no reasonable prospect of success' to that discussed by Barrett J in Degiorgio v Dunn (No 2) [2005] NSWSC 3; (2005) 62 NSWLR 284, [28], and Hodgson JA in Lemoto v Able Technical Pty Limited [2005] NSWCA 153, [132]. Those cases considered the personal liability of legal practitioners under Part II, Division 5C of the Legal Profession Act 1987 (NSW). Their Honours concluded that 'without reasonable prospects of success' equated to 'so lacking in merit or substance as to be not fairly arguable'. See Nicholas Beaumont, 'What are "Reasonable Prospects of Success"?' (2004) 78 (12) ALJ 812.
[8] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Victorian Railways Commissioners (1949) 78 CLR 62. Professor George Williams and Dr Ben Saul, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Migration Litigation Reform Bill 2005, above n 6.
[9] Commonwealth, Parliamentary Debates, House of Representatives, second reading speech, Migration Litigation Reform Bill 2005, 10 March 2005 (Phillip Ruddock, Attorney General).
[10] Williams and Saul, above n 8.
[11] Commonwealth, Parliamentary Debates, above n 9.
[12] Ruddock v Vadarlis, above n 3.
[13] ABC Radio, AM, 28 March 2005, Julian Burnside QC, <http://www.abc.net.au/am/content/2005/s1332481.htm> at 9 February 2006.
[14] National Pro Bono Resource Centre, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Migration Litigation Reform Bill 2005, above n 6, 5.
[15] Ronald Dworkin, Taking Rights Seriously (1977) 105–30; Ronald Dworkin, A Matter of Principle (1985) 119–45; Ronald Dworkin, Law’s Empire (1986) 239–54.
[16] Law Council of Australia, above n 6, 10.
[17] Williams and Saul, above n 8.
[18] [2005] HCA 6; (2005) 79 ALJR 609.
[19] United Nations High Commissioner for Refugees, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Migration Litigation Reform Bill 2005, above n 6, [9-10].
[20] Law Council of Australia, above n 6, 9.
[21] Australian Lawyers for Human Rights, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Migration Litigation Reform Bill 2005, above n 6, 6.
[22] Order 62 Rule 9 of the Federal Court Rules and Rule 21.07 of the Federal Magistrates Court Rules allow for costs orders to be made against legal practitioners.
[23] ALHR, above n 21, 6.
[24] Williams and Saul, above n 8.
[25] ALHR, above n 21, 1.
[26] Public Interest Law Clearing House (Vic) Inc and the Victorian Bar, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Migration Litigation Reform Bill 2005, above n 6, 16.
[27] Ibid, 14.
[28] UNHCR, above n 19, [15].
[29] Section 7 of the Act inserts s 31A into the Federal Court of Australia Act 1976, which expands the power of the Court to give summary judgment. This is not restricted to migration matters.
[30] PILCH and the Victorian Bar, above n 26, 13–14.
[31] (2003) 77 ALJR 1088.
[32] Ibid [21] (Gummow J).
[33] PILCH and the Victorian Bar, above n 26, 14.
[34] Charles Robert Darwin, The Voyage of the Beagle (1836), Chapter XXI.
[35] Legal and Constitutional Legislation Committee, Provisions of the Migration Litigation Reform Bill 2005, Parliament of Australia, Canberra, May 2005, 3.57.
[36] Ibid 3.67.
[37] ALHR, above n 21, 7.
[38] Ruddock v Vadarlis, above n 3, [216].
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