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We live in interesting times

Access to civil justice has been the focus of my work for much of my career.

Its relationship to civil liberties has never been more relevant than today. Access to civil justice is a necessary precondition for the realisation of rights and liberties and it remains an essential component of the rule of law.

The term ‘rule of law’ has been used in many contexts this past year or so, not all of them apt, and some even amounting to magniloquence, as Justice Edelman suggested recently.1

However, there is an important link between access to civil justice and the rule of law; it is explained in a 2009 report of the Commonwealth Government, ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’, and goes like this:

  • The rule of law frames the relationship between state and society. A strong rule of law means that a country has less corruption, protected and enforceable legal rights, due process, good governance and accountable government.
  • Justice institutions enable people to protect their rights against infringement by government or other people or bodies in society, and permit parties to bring actions against government to limit executive power and ensure government is accountable.
  • Access to justice is an essential element of the rule of law. Without this, there is a loss of confidence in the rule of law. Those with resources or other strengths tend to prevail, regardless of the fairness of the outcome, depriving people of the enjoyment of legitimate rights and interests and encouraging lawlessness.2

The QLS position on access to justice

It’s quite easy to identify the Society’s position on access to justice because Council has recently settled an Access to Justice Policy Position. In fact, this year I had the opportunity to officially launch that policy at the Council for Civil Liberties Derek Fielding Lecture.

The opening paragraph encapsulates the essence of this topic perfectly:

“Access to justice is a human right. It also makes other human rights a reality. In the absence of access to justice, people are unable to exercise their rights, hold decision-makers accountable, challenge discrimination and have their voice heard.”

While access to justice in criminal law matters remains imperfectly realised, at least there is a framework for it in the International Covenant on Civil and Political Rights, the Queensland Human Rights Act, and case law.

Access to civil justice lacks that framework.

The Human Rights Act enacts that every person is equal before the law and is entitled to equal protection of the law.3 It enacts that a party to a civil proceeding has the right to have the proceeding decided after a fair hearing.4 But there is no civil case law equivalent to Dietrich v The Queen5 (the case that established a criminal trial could not proceed in the interests of justice if there was no legal representation for the accused), and, with few exceptions, no legal aid for civil law cases.

Before exploring that further, I want to suggest a working definition of access to civil justice. I think there are three components.

  • First that the law draws an appropriate balance between competing rights,
  • Second that there is an appropriate forum in which to take action when rights are breached, and
  • Third, that legal representation is available in that forum when necessary.

The COVID-19 response and the rule of law

The civil justice issue where finding the right balance has been most challenging, in my term as QLS President is, of course, the pandemic response. It’s not yet possible to say whether it was felicitous, or ironic, that the pandemic began at the same time as the Human Rights Act in Queensland.

The term ‘unprecedented’ has been much overused in the past 18 months, but the restriction to human rights and civil liberties that has occurred over this time is without precedent, even for someone who grew up in Queensland in the 1970s.

QLS has chosen not to enter the debate about whether the various health directives have drawn an appropriate balance between the safety of the community in a pandemic, and individual liberties such as freedom of movement. We have instead advocated on issues of direct relevance to the profession such as mechanisms to sign documents virtually, access to residential aged care and hospitals for solicitors to see their clients, and allowing our members who live across the border to come into Queensland to run their practices.

Having experienced hotel quarantine for two weeks, I have personal views about whether the right balance was struck in depriving me of liberty6 and whether I received humane treatment in detention.7 Apart from obvious resentment at being detained for two weeks unable to leave a small hotel room, and without access to fresh air, I found the experience deeply troubling.

Arriving at an airport where the only people in the terminal were the 30 or so from my flight and almost as many police and armed services personnel, I seemed to have landed into some dystopian future. After queuing at a counter, a Queensland Police Senior Constable, who had asked me no questions other than to confirm my identity, and who had made no inquiry as to my vaccination status, formed the view that my detention was necessary to assist in containing or responding to the spread of COVID-19 within the community.

Whereas a person detained under the Public Health Act ordinarily may have a right to compensation if they could establish loss, no compensation is payable for detention as part of the COVID-19 emergency,8 and in fact the persons so detained must contribute more than $3000 for the cost of their detention.

The review by a magistrate which exists for detention in public emergencies under Chapter 8, part 7 of the Public Health Act9 does not apply to COVID-19 detention. I did wonder whether the old writ of habeas corpus might be brought into service, but decided it was poor form for the President of the Law Society to be seen to be trying to avoid the rules that apply to all.


QLS President Elizabeth Shearer addresses the parliamentary Economics and Governance Committee from hotel quarantine.

Every few days of my detention, someone from the Government, who despite my questioning was very vague about what part of the Government they were from, would telephone to require me to identify myself, and then ask me questions like “how are you feeling” and “how are you spending your days?”. When I said I was feeling like I would like some fresh air, I was met with expressions like “yes, that must be very difficult”. But those are personal reflections.

The QLS view is that, as the situation moves beyond short-term emergency, we should expect that the usual system of checks and balances will be restored. There remains a need for improved scrutiny and oversight to ensure that the limitations placed on human rights by the emergency response remain justifiable and proportionate.

Legislation was passed urgently in an emergency period which imposed significant restrictions on fundamental human rights. It gave extensive powers to executive government which have largely been exercised without the usual system of checks and balances provided by administrative and judicial review.

Effectively, the rule of law was suspended because a range of decisions of executive government were put beyond challenge. While this can be countenanced in an emergency, the current situation looks less like an emergency and more like the new normal.

There is no doubt that the public health threat from the pandemic remains, and executive government does continue to need the capacity to respond swiftly and flexibly. I do not express a view about whether the restrictions on freedom of movement caused by closed borders and hotel or home detention were proportionate.

It is the view, however, of the Queensland Law Society that the decisions of executive government that impact individuals should be made in accordance with published criteria, within published timeframes, and with an obligation to give reasons. There should be a system of both internal review of such decisions, and external review by a court or tribunal. As former Chief Justice Brennan stated:

“[J]udicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.”10

In the absence of such remedies, the only avenues available to citizens seeking exemption from the need for strict compliance with public health directives has been a complaint to the Human Rights Commission, which has no more than persuasive power, or resort to the media. While both these avenues have achieved results for some, they are an inadequate substitute for access to civil justice.

This article is an edited extract of the Derek Fielding Memorial Lecture 2021 delivered by Elizabeth Shearer to the Queensland Council of Civil Liberties, entitled ‘Access to Civil Justice – A necessary pre-condition for the realisation of rights and liberties’.

Footnotes
1 Palmer v Western Australia [2021] HCA 31 at par 21.
2 ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’ at pages 1-2.
3 Section 15(3) of the Human Rights Act 2019 (Qld).
4 Section 31 of the Human Rights Act 2019 (Qld).
5 Dietrich v The Queen [1992] HCA 57, 177 CLR 292.
6 Section 29 of the Human Rights Act 2019 (Qld).
7 Section 30 of the Human Rights Act 2019 (Qld).
8 Section 366(2) of the Public Health Act 2005 (Qld).
9 Section 361 ) of the Public Health Act 2005 (Qld).
10 Church of Scientology v Woodward (1982) 154 CLR 24 [70].

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