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Concept
Right to counsel
Summary
In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. Of the 194 constitutions currently in force, 153 have language to this effect.
In Australia, suspects and defendants have the right to have legal representation during investigation and trial. Australian law does not recognize a right to publicly-funded legal defense, but does recognize that in the absence of counsel the accused may not receive a fair trial as mandated by law. Only the states of Victoria and New South Wales have dedicated public defender systems. Courts have the power to stay proceedings when they determine there is a risk of unfair trial. The High Court of Australia ruled in Dietrich v The Queen that while indigent defendants are not entitled to legal defense as a guaranteed right, a judge should typically grant a request for an adjournment or stay in most serious criminal cases where a defendant is unrepresented, and should allow a trial where a defendant accused of a serious criminal offense is left unrepresented to proceed only in exceptional circumstances. Each state and territory of Australia has a Legal Aid Commission to provide legal services in criminal, civil, and family law matters to the indigent, but will only assist those who meet their threshold criteria, particularly with regard to income. Anyone accused of a Commonwealth crime, or crime falling within the jurisdiction of the federal government, has the right to ask a judge for counsel within two weeks of committal, and the judge may appoint a lawyer if convinced that the defendant cannot afford counsel.
Official source
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