The default position these days from those we elect is to ignore any call for action unless it will likely increase their re-election prospects, writes legal columnist HUGH SELBY.

Who wouldn’t want to celebrate hiker Mr Hadi Nazari’s survival after nearly two weeks of being lost in The Man from Snowy River high country? 

He’s a medical student who wants to be a neurosurgeon. That’s a challenging path. Let’s hope that he makes it and brings tears of joy to many people who benefit from his skills, his commitment and his insights from his brush with death.

Right now though, let’s be thankful that hundreds of Australians, most of them as volunteers, took part in the search to find him. Every one of them deserves thanks from us – thanks for their willingness to take action, to put themselves out to benefit a person they do not know.

This being the fire season we do all know about the efforts of firefighters, again many being volunteers, to save property and lives. We can watch moments of their struggle on our screens, comfortably safe, nicely removed from the heat, the wind, the smoke, their exhaustion and the life-threatening dangers.

All of which serves as a reminder that the many volunteers in the ACT, vital not just for disaster response, but for tasks at our schools, hospitals, sports, libraries, cultural events, and more, are not adequately protected by law. We reported on this easily fixed problem here. 

There has been no comment, no response from any of our politicians. They have no will to act, not on volunteers, not on other issues mentioned below and within their power (and responsibility) to fix.

The default position these days from those we elect is to ignore any call for action unless it will likely increase their re-election prospects. Both the news cycle and our perceived collective interest in an issue are so short that “no response, no commitment” works well most of the time.

Do a little and create big change

Over the past two years we have published around 170 articles on legal issues and the conduct of those in the legal system, including: jurors, police, prosecutors, judges, lawyers on legal aid or acting for no fee (pro bono), accountability bodies such as judicial and integrity commissions and Inquiries, along with pieces about sentencing, the ACT Civil and Administrative Tribunal, juvenile justice and corrections, and even the forfeiting of employer superannuation contributions upon conviction and sentence (you can find articles here).

Our purpose when reporting on legal matters is to inform, to entertain, and – with you – to build a better Canberra, one in which our elected politicians and our local public service create the best run legal services in the nation: so that the national capital is the national pacesetter in legal services.

Here then are some issues discussed in “legal issue” articles this past two years that are being ignored:

•  Our well-trained police to be encouraged not to charge in “one on one” sexual assault allegations if forensic and/or other credible witness corroboration is lacking. Asking 12 strangers (or a judge sitting alone) to find beyond reasonable doubt what did or didn’t happen sexually in a private space between two adults who have different personalities, backgrounds and recollections is to encourage decisions based on prejudice not evidence. (There is no evidence that prosecution lawyers are better judges of witnesses than police. Hence there is no need for police to leave that charge decision making to the prosecution’s office.) Adults complaining of sexual assault in “my word versus your word” cases should be encouraged to take civil action with its lower standard of proof and, if proved, a financial burden on the assaulter who has to pay compensation, rather than on the community footing the bill for ill-advised, expensive criminal trials that end in successful appeals or discharged juries. A collateral benefit is that complainants who lose will have to pay the legal costs of the successful defendant. This may discourage false claims.
• Arising from a High Court decision some decades ago prosecution offices have no accountability for their decisions to prosecute or not to prosecute. This immunity needs to be removed by statute and an independent (non-court) review mechanism established. For example, the professional services division of our local tribunal (ACAT) could be given jurisdiction to sit a three-member panel to overrule or confirm DPP decisions. (Although much of ACAT’s work is “each party pays its own legal costs” this jurisdiction should have the losing party paying the legal costs of the successful party.) Accused who are acquitted, or who have a trial that is aborted, should be able to apply to the trial judge for a costs order against the Territory. (This has long been possible in Magistrate Court matters.)
• Legal aid funding for defendants in criminal cases must be increased, both in the budget amount and in the daily rate. The present rates discriminate against justice for those without the means to engage lawyers. There needs to be a public discussion about whether it would be a “win win” for open justice and public funding to establish full time, salaried Public Defender positions. If so, should such public defenders appear in both the Magistrate and Supreme Courts?
• Persons suspended from their work pending criminal, disciplinary or corruption inquiries can be paid their salary – but on an interest-bearing loan basis to be repaid if there is a finding against them. Any shortfall in repayments can come out of their accrued superannuation entitlements. This is to stop the practice of suspending on full pay persons who are under investigation and later found to have been corrupt or guilty of offences that occurred before they were suspended. The present practice means that these people are being paid to do nothing. There is no incentive to plead guilty (if that is the true position).
• The law should never ignore reality. Telling jurors to stay away from the media about the trial, and/or not to discuss with others what they have heard during the trial, is to ensure failure and lies. The courts should respond to normal behaviour with understanding, not threats. Jurors should discuss with the judge each trial morning what information they received outside of the hearing. It may be that the trial judge and the lawyers for both parties need to discuss what flows from these daily disclosures, such as judicial comment or the recall of a witness for a limited purpose.
• Given the repeated criticism of our Corrections policies and practices there should be a three-person inquiry (with Inquiry Act powers) into ACT Corrections’ policies and management (both adult and juvenile). The inquiry should report on whether current approaches can be improved and, if so, how, in what time frame, and at what cost.
• Some good ideas fail in practice. Our Integrity Commission is an example. Its results are too insubstantial, and too long in the making, to justify its expense. It should be abolished. In its place the Inquiries Act should be reviewed to allow for the easier setting up of time-limited inquiries into specific allegations as needed. To avoid a repetition of what happened in the Sofronoff Inquiry (into the allegations made by then-DPP Shane Drumgold SC) Inquiry reports should be sent to the Speaker of the Assembly and released to the public on the same day; that is, it should be impossible to hide an Inquiry Report from the public (though some part of a report may not be published, as for example, if criminal prosecutions against named persons are recommended.) 
• Judicial officers come with all the personality strengths and weaknesses that are found among the rest of us. Small population jurisdictions (notably the Territories and Tasmania) are not well served by local Judicial Commissions. There is too much opportunity to allege partiality in their actions. A national Judicial Commission is necessary because then there is clear distance between those complained about and those assessing the complaint. Allegations of a lack of impartiality are easily rebutted. Besides, conduct standards for our judiciary should be national, not parochial. 

Be a volunteer, too

Where there’s a will there’s a way. Creating that “will do” in our politicians requires unremitting pressure from we, the voters. 

How about adding some interest to their lives by being an unthanked volunteer. The link to the contacts for our elected local pollies is here.

Copy and paste this message to one or more pollies of your choice:

“Show us that you deserved our vote. Have the law reforms set out in CityNews in January in place by the end of 2025. Please start with a law that clearly sets out the rights and obligations of volunteers”. 

If lots of us did that, and then followed up with monthly reminders, then Canberra and its local politicians can change for the better.

Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.