Al-Kateb v Godwin

Many court cases become famous or historic because of the controversy that surrounds them. While many cases follow existing laws there are some that interpret the law in a new and different way, setting new precedents. In 2004 the case of Al-Kateb v Godwin in the High Court of Australia did just that.

In the year 2000, a Palestinian man named Ahmed Al-Kateb who was born in Kuwait moved to Australia. Al-Kateb applied for a temporary protection visa which recognizes a person as a refugee who is fleeing persecution. A temporary protection visa (TPV) is issued to someone who applies for refugee status after arriving unauthorised in Australia. In Al-Kateb’s case, the Commonwealth Minister for Immigration made the decision to refuse his application. The Refugee Review Tribunal and the Federal Court upheld the Commonwealth’s decision.

In 2002 it was Al-Kateb’s wish to then return to Kuwait or Gaxa, however, no country would accept him. Due to the countries refusal and Australia’s denial of a TPV Al-Kateb was declared stateless and wound up being detained within the policy of mandatory detention.

There were two issues that made this case so controversial. One is whether or not the Migration Act 1958 allowed for a person in Al-Kateb’s situation to be detained indefinitely. The Migration Act allowed unlawful non-citizens to be detained until their removal from the country, even when their removal could not take place in the foreseeable future. The second issue was if the Act did permit indefinite detainment was it actually legal under the Constitution of Australia. 

These two points caused quite a debate, with two Justices offering differing views on the constitutional interpretation. The views these individuals expressed focused particularly on human rights and the role of international law. The High Court considered these issues and a majority ruled that the Act allowed for indefinite detention and was not unconstitutional.

At the time Al-Kateb was to be detained indefinitely until either a Middle Eastern state became willing to take him or a state of Palestine was created. The ruling sparked major controversy as many saw the scope of mandatory detention laws as a violation of human rights.

The case put pressure on the Immigration Minister and forced the Court to review other stateless people’s circumstances. At the time 24 people being held in immigration detention had their cases looked at for a second time. After reviewing Al-Kateb and 8 other people were granted bridging visas. In 2005 these people were released from detention, however, they were unable to study, work or obtain government benefits. 

Al-Kateb has said of the situation that he was constantly worried about being sent back and had to rely on donations from friends and supporters. In the summer of 2007, he was granted a permanent visa by Immigration Minister Kevin Andrews.

The case is used in academic circles as an example of the court taking differing approaches to statutory interpretations and how a legalistic approach can contrast with a purposive approach.

Pros and Cons of Retaining a Lawyer

A retainer fee is money paid in advance to a lawyer for services that will be rendered. The retainer can be paid based on an estimate of the amount of work done for the client that month or can cover all anticipated work for the entire case.

For example, if you hire a lawyer to handle a custody matter you may pay them 5,000 to provide that service. In that case, every letter, phone call or time spent working on your case will be billed to the retainer amount that you’ve put on deposit with them. In some cases, if you do not use the full amount in some cases there is no refund or credit. It’s important to understand the retainer agreement and read the fine print before signing so you know just how any overpayments will be handled. If you use more than the amount of the retainer it is reasonable to be sure that you will have to pay additional fees.

There are a number of reasons that a lawyer may request a retainer fee. It can compensate the lawyer for the use of their expertise and reputation, even if it is because that particular lawyer’s name can help the client gain leverage or allow the case to settle quickly. There are instances where the right lawyer can even achieve a settlement after only a few phone calls or a letter. If that’s the case that the value of the retainer fee is obvious and the lawyer should be compensated for the use of his or her reputation.

A lawyer may also request a retainer fee when they are agreeing to be on standby for the case. When that happens the lawyer is essentially forgoing other gainful employment or business opportunities so that they are able to remain available when they are needed for the lawsuit. This is a major reason many businesses have lawyers on retainer if the situation occurs where a lawsuit is filed against a company a lawyer that is on retainer can be available immediately with their expertise.

Furthermore, retainer fees protect lawyers once the work has begun. If the case proceeds the lawyer can use the fee to defray costs as they work on the case. If a disagreement takes place or an unforeseen circumstance makes it impossible for the client to pay the lawyer the retainer fee ensures that the lawyer will receive at least some of their compensation for the time they’ve spent on the matter.

There are, inevitably, arguments against collecting a retainer fee up front. There are people who are simply put off by the idea of prepaying for a service and will choose to hire a lawyer who does not charge a retainer fee. That is often why a lawyer who does charge a fee upfront is a professional who is specialised in a major discipline, well-known, or exceptional in one way or another. Scarcity creates value which can provide specialised lawyers with an advantage when negotiating retainer fees.

Another argument against retainer fees is that for some potential clients there is a fear that if a case settles before much work is done the client will have essentially paid for nothing. However, the counter-argument to that is of course that the lawyer has potentially utilized his or her reputation and the client paid for the opportunity to use that lawyer to their advantage. 

Finally, when given the opportunity to work with two similarly qualified lawyers many may choose the one who does not charge a retainer fee. Many lawyers are willing to forgo the fee or refund it if little or no work is actually completed before a settlement is reached. New layers may find that it is beneficial to refrain from collecting retainer fees so that they can compete against more seasoned layers with already developed reputations.

A lawyer’s choice of whether or not to charge a retainer fee is ultimately their preference. It’s important to evaluate layers and determine how experienced, well-known, and qualified that individual is before deciding if their expertise warrants the fee that they are charging. Most lawyers are willing to work with a client and find the best approach so that it is fair to both the lawyer and the client. 

The Case of Dietrich v The Queen

A court case in which a law is interpreted differently than ever before often makes whatever particular subject of the case reach headlines. There is usually quite a bit of controversy. When a ruling is brought down in these situations it can influence the future of similar cases in the future. Dietrich v The Queen in 1992 was a great example of such a court case.

Dietrich v The Queen was a very important case concerning the nature of the right to a fair trial. It also highlighted in what circumstances legal aid should be provided by the state for defendants who cannot afford legal representation. The issue began when the accused, Olaf Dietrich flew from Bangkok, Thailand to Melbourne Airport concealing 70 grams of heroin in condoms that he had swallowed. Australian Federal Police arrested Dietrich the next morning and he was taken into custody. 

While being tried in the County Court of Victoria for charges relating to drug trafficking the accused did not have any legal representation. While Dietrich had applied for the Legal Aid Commission of Victoria’s assistance, it said that unless he pleaded guilty it would not help him. Dietrich refused to plead, and instead applied to the Supreme Court of Victoria for assistance, but once again was turned down. While Dietrich was acquitted of the lesser charge, he was convicted on the principal charge in the County Court. Dietrich then took his appeal to the Supreme Court, which refused to hear it. Finally, he then sought leave to appeal to the High Court of Australia.

During the appeal in the High Court Dietrich was represented by David Grace of the Queen’s Counsel. The argument stated that his trial in County Court had been a miscarriage of justice because he did not have legal representation. His lawyer argued that because of the seriousness of the crimes he was charged with counsel should have been provided to him at the public’s expense. If that was not possible, it was alternatively argued that the judge should have adjourned the trial until Dietrich could obtain counsel for himself. 

Dietrich used three different sources in law to prove his point. The first was a section of the Victorian Crimes Act 1958 which has since been repealed. The second was the obligation of Australia under the United Nations International Covenant on Civil and Political Rights (ICCPR). The article of importance in the Covenant provides that an accused person should have legal assistance provided in any case where the interest of justice so required. Australia hasn’t incorporated the ICCPR into its own domestic laws with any type of specific legislation, however, Dietrich argued that common law of Australia should be developed in principle of the ICCPR and other international treaties that the country is a part of. 

In the High Court, the majority of judges decided that Dietrich did have the right to a fair trial and by not allowing him proper legal representation the original trial was unfair. Furthermore, it was concluded that when someone accused does not have legal representation, through no fault of their own and is charged with a serious offence, a judge can order than a trial is stayed until legal representation is available.

The nature of this trial focused on the common law tradition that anyone accused is entitled to a fair trial. This case was significant in not only criminal law, but also in Australian constitutional law because members of the High Court found implied human rights in the Australian Constitution.

Things to Consider When Choosing a Lawyer

The type of legal matter will determine what sort of lawyer you’ll need. However, there are many other aspects to take into consideration when choosing a lawyer. Finding the right legal counsel is important so it’s necessary to do research and ensure that it’s a good fit.


Here are a few factors to consider when choosing a lawyer.

Reputation

The reputation of a firm is something to pay attention to. A good firm will uphold a reputation for honesty not only among clients, but also its peers. It’s also important that the firm has strong drafting skills. Do your research and look for references so that you have an idea of the firm’s integrity.

Experience

It’s important to consider the experience of your representation. Not only should you consider the number of years that a lawyer or firm has been in practice, but also whether or not they have any reported decisions. While it’s important to settle when it makes sense, it’s necessary to prepare for trial when things can’t be settled outside of court. If your case ends up going to court you’ll want to feel confident in the abilities of your lawyers during a trial.

Partnerships

If you are an Australian who is facing legal action from somewhere outside of the country you’ll want to know whether or not the firm has any experience partnering with international, regional, or national firms. Furthermore, if they do have experience find out if the outcomes were successful in those cases. If a lawyer is going to be dealing with laws and lawyers from different countries then make sure that your case won’t be there first time getting that experience.

Results

Ask the firm to see a Case Study or Practice Area summaries so that you can see examples of their work. It’s not enough to seek a good lawyer, find a great one. The track record of the firm you choose should have fantastic results.

Practicality

Make sure that the lawyer or firm understands your financial budget and will settle on a number that works for both of you. Avoid lawyers that make you believe that they’re looking to make a quick buck or aren’t being practical on how they are approaching your case.

Value

Value can go hand in hand with practicality. Make sure that you know what you will be expected to pay for the legal services. Develop a clear understanding of the contract and if you are paying on contingency then know the percentage that you’ll expect whether or case goes to court or settles.

Sometimes it can be difficult to draw a line between personal and business legal interests. That makes it all the more important to have a lawyer with the right experience and confidence to use their abilities to work towards getting you the results you need. It is extremely important to understand the legal position that you are in when choosing a lawyer to represent you.