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President’s update – August 2021

With the time of COVID being likened to a time of war, I am reminded of the RSL motto – ‘the price of liberty is eternal vigilance’.

The RSL national website reports that this motto was adopted by the RSL in 1923, but cites Demosthenes, a stateman and orator from Athens in the 4th Century BC as a source. He is reported to have said: “There is one safeguard known generally to the wise, which is an advantage and security to all, but especially to democracies as against despots. What is it? Distrust.”

One thing we have in common, as solicitors, is our scepticism, but we also aspire to be the trusted advisor to our clients, and a trusted voice in the community.

Finding the right balance between trust and scepticism is a challenge we now all face – as individuals, as a profession, and as a community – and it is a common theme in the issues coming across my desk as President of Queensland Law Society.

The reputation of the profession

We continue to see lawyers in the headlines for the wrong reasons. But actions speak louder than words, so it is up to us all to continue to demonstrate our professional values of integrity and service and demonstrate our trustworthiness to counter adverse publicity about our profession.

The Executive Committee of Council, which makes decisions on practising certificates and receiverships, continues to be busy. Look out for another update soon about the sorts of issues Executive Committee is seeing cause problems.

The pandemic and access to legal services

In the most recent lockdowns, solicitors were unable to attend in person at aged care facilities, hospitals and other restricted accommodation settings, to take instructions and witness documents. Because the arrangements for remote execution of wills have now expired, this caused a significant interruption to access to important legal services.

You will be pleased to learn that, after QLS raised this issue with her, the Chief Health Office has written to me indicating that, if it is necessary to impose restrictions in the future, she will give consideration to permitting legal practitioners to enter restricted facilities to provide legal services. However, this permission may be subject to conditions, including a requirement that the practitioner be vaccinated.

This is encouraging news for us and our clients, particularly those needing important documents such as wills and enduring powers of attorney.

The pandemic and the rule of law

The ‘rule of law’ is a term that is used in many contexts, and not always accurately. One essential component of the rule of law in a democracy is that no one, including executive government, is above the law.

While we may not distrust government, as advocated by Demosthenes, we do, as a society, consider it prudent to have a system of checks and balances.

In recent decades the older remedies of judicial review have been supplemented by merit review of executive decisions impacting individuals and a robust right to information regime.

In times of emergency, we accept that the rights of the individual may be temporarily limited in the interests of the greater good of the community, and that some aspects of the rule of law may be temporarily suspended.

But it remains the role of the legal profession to be vigilant about this.

There is no doubt that the public health threat from the pandemic is present and evolving, and executive government does continue to need the capacity to respond swiftly and flexibly.

However, I am becoming increasingly concerned about the suspension of some important rule of law elements. For example, as a community, we may continue to accept that restriction on freedom of movement is necessary. But almost 18 months on from when restrictions were imposed, some of the usual checks and balances need to be applied to decision-making about individual exemptions from the restrictions. These include:

  • published information on criteria under which decisions are made
  • time frames within which decisions must be made
  • an obligation to give reasons when making a decision
  • a process for review of decisions.

This applies equally to decisions by the Commonwealth about leaving and entering the country, and decisions by the state about entering in time of border restrictions.

You may have seen the Proctor report about my appearance before the Queensland Parliament’s Economic and Governance Committee, where I made some of these points.

At the time, I was in hotel quarantine, so it’s possible (and indeed probable) that my personal experience is influencing my view. I am interested in members’ views on this issue – do you share my view that we need to maintain vigilance? Feel free to email me on president@qls.com.au.

Elizabeth Shearer
President, Queensland Law Society

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