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The Law Council of Australia has today backed calls by the Fiji Law Society for the Fijian Parliament to take more time to consider and consult on the proposed Electoral Amendment Bill No. 49 in order to ensure it does not unnecessarily erode citizens’ right to privacy.
The Law Council says the proposed measures in the Bill would appear to vest the Supervisor of Elections with extraordinarily broad information gathering powers, without appropriate safeguards or oversight mechanisms.
The Australian body says there is no right of appeal against a decision by the Supervisor other than to the Fijian Electoral Commission which is final and cannot be further appealed or reviewed by any court.
The Law Council of Australia takes the view that coercive information gathering powers, such as these, must be seen as exceptional, particularly when used in executive rather than judicial processes, given their intrusive impact on individual rights, including the right to privacy.
The Law Council has taken the view that the use of such powers is justified only when necessary to achieve a legitimate purpose and only when accompanied by sufficient protection against their overuse or misuse and by provisions to mitigate their adverse impact on individual rights.
The Council says it is essential that the public has a credible basis upon which to be satisfied that these powers are necessary in response to legitimate and evidence-based threats to the Fijian electoral process.
It says in this case, no such justification appears to have been made out, and the necessity of the proposed powers does not appear to have been clearly or adequately established.
The Law Council says the Bill also lacks safeguards, including the apparent absence of a right of appeal from the Supervisor’s exercise of powers. The Law Council concerns include that the Bill may encroach upon legal professional privilege.
It says legal professional privilege remains an important aspect of the proper administration of justice and facilitates the rule of law in the public interest.
The Council says privilege belongs to the client, not the lawyer.
It says the doctrine of legal professional privilege promotes the fostering of trust and candour in the relationship between a lawyer and client, ensuring a client can obtain full and frank legal advice from their representative.
The Law Council of Australia says the Bill’s impact upon legal professional privilege along with broader rights and privileges, should be carefully reviewed before it progresses further.
The Law Council is also concerned by the reported use of urgency powers to introduce and debate the Bill.
It says more time must be provided for consideration of legal and civil rights ramifications, and any safeguards which are necessary to protect rights and privileges, before the Bill is voted on by the Parliament.
The Bill will be debated and voted on in Parliament today.
