If you are a victim of a bank, ask yourself the question:
If I had timely, proportional and equitable legal representation to the bank, would I be in the position I am in today?
If you have never been done over by a bank, ask yourself the question:
If at some time in the future I had to defend myself against a bank, would I have the resources to defend myself in this country’s justice system?
With very few exceptions the answer would be a resounding ‘NO!
Why is it then that banks are able to use our justice system as a weapon against us when the very principle of justice rests on our being equal before the law?
The concept of equality of arms has a distinctive European origin and can be traced back to the medieval era, when dispute was settled by ordeal of trial by battle. Because the trial would be to death, a rigid set of rules were put in place to ensure parity between contestants and each contestant was put at par in terms of armament and armor. This worldview midwifed the common law system of adversarial proceeding.
In contemporary times the European Court of Human Rights relying on the European Convention on Human Rights has been responsible for re-conceptualizing and articulating the principles of the concept of “equality of arms” at trial. Article 6 of the European Convention on Human Rights embodies the concept. The European Court of Human Rights in Bulut v Austria defined the concept as “that both in criminal and non-criminal cases ‘everyone who is a party to such proceedings shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at substantial disadvantage vis-à-vis his opponent.” The court has also come to define the concept to include access to resources and facilities, when it held in Steel and Morris v United Kingdom that the financial resources available to the accused undoubtedly impacts on the quality of legal representation he gets and that the denial of legal aid to the applicants had put them in an unacceptable state of inequality..
The Australian Attorney General’s web site identifies on the page titled “Fair Trial and Fair Hearing Rights” in a paragraph “equality” a legal principle called ‘Equality of Arms’ and that it is a human right. The web site states:
“What constitutes a fair hearing will require recognition of the interests of the accused, the victim and the community (in a criminal trial) and of all parties (in a civil proceeding). In any event, the procedures followed in a hearing should respect the principle of 'equality of arms', which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. The UN Human Rights Committee has found a violation of article 14(1) in a case in which a right of appeal was open to the prosecution but not to the accused.”Are your customers raving about you on social media? Share their great stories to help turn potential customers into loyal ones.
Despite this statement there is no legal precedent in Australian civil law that supports the principle and in all practical reality it is not practiced in this country.
Contemporary redress mechanisms for FSP (Financial Service Providers)consumers and SME’s (Small and Medium Enterprises), fail in every meaningful way. All IDR (Internal Dispute Resolution), EDR (External Dispute Resolution) and pseudo legal bodies as well as the contemporary justice system it is argued are not fit for purpose. FSP consumers and SME’s subject to legal action need timely, proportional, equitable, and affordable access to redress at the top of the cliff, they need ‘Equality of Arms’.
It is proposed that a permanent independent specialist elite federal cell be established that can, by utilising and working with the contemporary legal aid and community legal centers offer all FSP consumers and SME’s timely, proportional, and equitable legal representation when pursued by an FSP.
The proposed primary source of funding would be the FSP that has made the decision to use the legal system to pursue a customer. At the point of initiating any legal instrument the FSP will be required the make a non-refundable contribution to the cell equivalent to their total internal and external legal budget/costs. Any escalation would require further matching contributions from the FSP. The financial service will only be able to recoup their cost from the customer following an outcome in their favor.
The cell would require initial federal seed funding to ensure employment and day to day continuity, as well as funding for proper preparation of legacy case reviews. The cell should have an oversight body that includes federal government, consumer, legal aid and community legal center group representation, but no FSP, EDR or private legal sector representation to avoid white anting and inappropriate external influence.Running a holiday sale or weekly special? Definitely promote it here to get customers excited about getting a sweet deal.
Financial service funding – It is essential to the operational effectiveness that the cell is primarily funded by the financial service that embarks on any legal action that is equivalent to their total legal costs. This includes ancillary costs such as expert advice, stationery, etc. Any variation from this protocol risks a match and raise competition or funding that may not be proportional to the action. This model is proportional and does not penalise FSP’s that act fairly and justly. It is argued that court proceedings would proceed more efficiently.
Must be a public body – The cell should consist of motivated salaried legal professionals that are dedicated to the ‘administration of justice’. Any and all linkage and utilization of the private sector should be avoided.
Must be federal – It is critical that the cell collects intelligence nationally in order to disseminate it along with appropriate support and funding to all legal aid jurisdictions and community legal centers. As currency sovereign the federal government is able to setup and fund contemporary, future, legacy and other costs as required.
Autonomy – The federal cell must be autonomous to minimise the risk of both white anting and inappropriate external influence.
Will change bank culture – When the FSP can no longer rely on the disproportionate and monetarised legal system because the customer has ‘Equality of Arms’ in the courts, FSP boards, officers and staff will no longer be able to act with impunity. This will drive fundamental cultural change organically.
The FSP controls cost – The FSP and only the FSP makes the decision to use the legal system and to what degree it uses the legal system. The FSP can modify its approach to their customer or make fairer use of IDR’s and EDR’s thus avoiding the legal system altogether.
Will make EDR’s more effective – When both the financial service and EDR’s realise that the customer has equity in the courts in the event that the EDR process is not successful, it will change fundamentally the way the FSP and EDR approach dispute resolution. Both the FSP and EDR body will realise that failure will result in the matter being resolved in the courts where there is now ‘Equality of Arms’.
Will result in better common law – Arguably due to the lack of ‘Equality of Arms’ many FSP issues that may well have been won by consumers and SME’s are lost, or never come before the courts. This has the effect of corrupting Australian common law.
Will compliment ASIC and APRA – When matters are dealt with in a timely manner by the cell, systemic issues will be identified in a timely manner also. This intelligence can be shared with the appropriate regulator.
Will boost the effectiveness of the contemporary legal aid and community legal center system – All legal aid organisations will be able to assist any FSP consumer and SME knowing that not only funding will be available, but also expert knowledge, support and personnel.
Will put downward pressure on legal costs – Because the FSP’s legal cost will potentially double, it is argued that the FSP will be more frugal when making decisions as to what they are prepared to pay for legal representation.
Would reduce legacy cases – When matters are dealt with in a timely, proportional and equitable manner, the number of future legacy cases would be expected to reduce dramatically. This would reduce the burden on the legal system, EDR’s and neutralise the requirement for a future FSRC.
Protects the value of security – Where the security is, say a business or a farm, and a consumer or SME is required to self-litigate, this will use time, capital and resources at the expense of the business or farm. This would likely result in the deterioration of the value of the security property to the disadvantage of the successful party. The disadvantage would be proportionately greater for the consumer or SME..
As a direct consequence of the lack of 'Access to Justice' there are many aggrieved FSP victims, some going back over thirty years, that have been unfairly subjected to the inequity of this country's disproportionate monetarised legal system. These individuals and enterprises do not have the financial means or access to the redress mechanisms to have their matters reviewed so as to establish the 'real issues’. These cases where not given the appropriate attention deserved from the Terms of Reference and time constrained FSRC.
There is an urgent requirement for a Ramsey Review style public Tribunal were aggrieved legacy bank victims can have their matters revisited. It is of critical importance that these individuals and enterprises have appropriate legal representation, firstly to establish a prima facie case and secondly to ensure the 'real issues' are presented to the tribunal in a concise and impartial manner.
An ideal body to carry out this preliminary work would be an ‘independent specialist elite cell’ described above. This would enable the cell to develop skills and collect intelligence that would make it more effective in current and future cases. Information and intelligence collected could be passed on to regulatory bodies such as ASIC and APRA improving their effectiveness.
It’s likely if such a tribunal was initiated with the appropriate legal support for legacy cases, the FSP’s that know they have exposure, would make an attempt to settle with their aggrieved victims rather than be exposed to the expense and scrutiny of a public tribunal.If customers can’t find it, it doesn’t exist. Clearly list and describe the services you offer. Also, be sure to showcase a premium service.
Michael Sanderson is leading the “Equality of Arms” workstream.
Mobile: 0421- 176-997
Postal: PO Box 6 Katamatite Victoria 3649..
The role of the Public Defender will be to protect individuals and small business from unfair and abusive behaviour of financial service providers, especially the major banks..
If a financial service provider seeks to call in or terminate a loan facility when a borrower has never missed a loan payment, then a borrower will be able to seek the protection of the Public Defender..