CCPR/C/45/D/491/1992

EE, Communication Mo. 491/1992,_J.L. y. Australia (decision

of 28 July 1992. adopted at the forty-fifth session)

Submitted by:

J,L. (name deleted)

Alleged victim:

The author

State party:

Australia

Date of communication: 7 August 1991 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 28 July 1992,

Adopts the following!

Decision on admissibilitv

1.

The author of the communication is J.L., an Australian citizen residing

in Moorabbin, Victoria, Australia. He claims to be a victim of violations by

Australia of article 14 of the International Covenant on Civil and Political

Sights. The Optional Protocol entered into force for Australia on

25 December 1991.

Facts as submitted by the author

2.1 The author is a solicitor; in the State of Victoria, the practice of law

is regulated by the Legal Profession Practice Act of 1958. Pursuant to

section 83 (1), no one may practise law unless he or she is duly qualified and

holds a certificate issued by the Law Institute of Victoria. Under the Act,

two fees must be paid before a practising certificate is issued: an annual

practising fee and a compulsory professional indemnity insurance premium.

Pursuant to section 90, anyone without a practising certificate is not

qualified to practise law.

2.2 Section 88 (2) (c) stipulates that the rules determining a practising fee

for solicitors have no effect unless approved by the Chief Justice. The

latter may also approve the regulations concerning the professional indemnity

insurance. In 1985, the Chief Justice approved a new insurance scheme

proposed by the Law Institute, under which its Solicitors' Liability Committee

was entitled to henceforth determine the insurance premium.

2.3 In 1986, J.L* refused to pay the increased premium for the new insurance

scheme, since he considered it to be invalid. Re claimed that, apart from

being a tax which had to be determined by Parliament, the Institute had not

sought the necessary recommendations from its members for the new rules, nor

had it complied with the so-called regulatory impact statement requirements of

the Subordinate Legislation Act of 1962.

2.4 The Institute refused to issue the author's practising certificate; the

latter did, however, continue to practise. On 13 May 1986, the Secretary of

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the Institute obtained an injunction against J.L. pursuant to section 90 (7)

of the Act, which stipulates that:

"On application made ... by the secretary ... of the Institute/ the

Supreme Court may, if it is satisfied that an unqualified person is

acting or practising as a solicitor ..., make an order restraining that

person from so acting or practising."

2.5 J.L. ignored the injunction. On 21 Kay 1986, the Chief Justice sentenced

him to three weeks' imprisonment for contempt of court. The author appealed

the injunction and the committal order. On 10 April 1987, the full Court

dismissed the appeal against the committal order but set aside the injunction,

inter alia, on the ground that the members of the Institute had not

recommended the new insurance regulations.

2.6 Under a subsequent amendment to the Act, the Solicitor's Liability

Committee may determine the insurance premium with the approval of the

Institute's Council and without the necessary recommendations from the

Institute's members. Notwithstanding, the author, maintaining that the fee

constituted a form of taxation that would have to be determined by Parliament,

continued to practise without the requisite certificate.

2.7 Throughout 1988, the author refused to pay his practising fees to the

Institute, complaining that the Institute used the fees "improperly" to

finance private activities, rather than for administrative or regulatory

purposes. He contended that, although the Act did not specify the purpose for

which the fee should be used, it was a statutory fee and should accordingly be

used solely for such purposes. He further claimed that, as the fee was also

fee for membership in the Institute, he was forced to become a member in a

union.

2.8 On 11 and 15 March 1988, another judge of the Supreme Court, upon

application of the Law Institute, issued another injunction against J.L. He

ruled that the practising fee was commensurate to the Institute's statutory

functions and that the insurance premiwi was not a "tax", but a contribution

to the governance and good order of the profession. The order of

15 March 1988 carried a stay until the "final determination of an appeal by

the applicant or further order". An appeal against the order of 11 March was

rejected by the full Court on 8 December 1988. The High Court refused leave

to appeal from the court's 3 u a9 e m e r t t o n 1 3 October 1989. No application to

modify or discharge the orders was made by the Law Institute.

2.9 On 30 November 1990, a Supreme Court judge again found the author in

contempt of court. The author argued that a stay of the order of

15 March 1988 was still valid, as he had not appealed against it. The judge,

however, held that the stay h,ad expired with the High Court's denial of leave

to appeal. On 7 December 1990, the judge fined the author for having failed

to obtain practising certificates for 1989 and 1990. The full Court denied

leave to appeal against this order on 15 March 1991. Upon application from

the Institute, the author's name was struck off the roll of solicitors and

barristers of the Supreme Court on 11 June 1991. In addition, the author was

again fined for contempt of court, with the proviso that, if the fine was not

paid within 30 days, he would be placed under arrest.

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2.10 The author did not appeal against this order, nor did he pay the fine.

On 1 September 1991, he was taken into custody. Upon application of the

Institute, a further order was issued on 2 October 1991, by which the author

was to remain in custody until 29 November 1991. Applications for habeas

corpus and bail were dismissed..

Complaint

3.1 The author complains that he has been denied proceedings before an

independent and impartial tribunal. He alleges that the Supreme Court of

Victoria is institutionally linked to the Law Institute by means of

section 88 (2) <c) of the Legal Profession Practice Act {see para. 2.2 above);

the judges' rulings are said to be partial because of their "special

relationship" with the Institute. It is further submitted that the judges of

the Supreme Court simply refused to rule on the issue of whether the

practising fee and insurance premium were valid.

3.2 The author claims that his detention was unlawful, as he was detained for

refusing to pay a fine that in fact exceeded the maximum fine envisaged by the

Act.

He contends that the court had no jurisdiction to entertain the case

against him, as there was no court rule authorizing a committal order for an

indefinite period until the payment of the fine,

3.3 With respect to the date of entry into force of the Optional Protocol for

Australia, it is claimed that the violation of article 14 of the Covenant has

continuing effects, in that the author remains struck off the roll of

solicitors of the Supreme Court, without any prospect of being reinstated.

Issues and proceedings before the Committee

4.1 Before considering any claims contained in a communication, the Human

Rights Committee must, in accordance with rule 87 of its rules of procedure,

decide whether or not it is admissible under the Optional Protocol to the

Covenant.

4.2 The Committee has noted the author's claim that his detention between

1 September and 29 November 1991 was unlawful. It observes that this event

occurred prior to the entry into force of the Optional Protocol for Australia

(25 December 1991), and that it does not have consequences which in themselves

constitute a violation of any of the provisions of the Covenant. Accordingly,

this part of the communication is inadmissible ratione temporis. As to the

author's contention that he was denied a fair and impartial hearing, the

Committee notes that although the relevant court hearings took place before

25 December 1991, the eEfects of the decisions taken by the Supreme Court

continue until the present time. Accordingly, complaints about violations of

the author's rights allegedly ensuing from these decisions are not in

principle excluded ratione temporis.

4.3 As to the author's contention that he was forced to contribute to the

activities of the Law Institute by paying a practising fee as well as an

insurance premium, the Committee notes that the regulation of the activities

of professional bodies and the scrutiny of such regulations by the courts may

raise issues in particular under article 14 of the Covenant. More

particularly, the determination of any rights or obligations in a suit at law

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in relation thereto entitles an author to a fair and public hearing. It is in

principle for States parties to regulate or approve the activities of

professional bodies, which may encompass the provision for insurance schemes.

In the instant case, the fact that the practise of law is governed by the

Legal Profession Practice Act of 1958 and that the rules providing for a

practising fee and a professional indemnity insurance will have no effect

unless approved by the Chief Justice does not lead in itself to the conclusion

that the court, as an institution, is not an independent and impartial

tribunal. Furthermore, the entitlement of the court, under Australian law, to

commit the author for contempt of court for failing to respect an injunction

not to practise law without having paying practising fee and the insurance

premium, is a matter of domestic law and beyond the Committee's competence to

investigate.

4.4 Accordingly, the communication is inadmissible as incompatible with the

provisions of the Covenant, within the meaning of article 3 of the Optional

Protocol.

5.

The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under article 3 of the

Optional Protocol;

(b) That this decision shall be transmitted to the author and, for

information, to the State party.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

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