Promoting Access to Justice and the Protection of Human Rights

As Attorney-General, I have a key role to play in promoting access to justice.  I fully support the recognition in my Department’s report, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), that access to justice for all Australians – and particularly those who are the most marginalised and disadvantaged – is fundamental to the effective protection and promotion of human rights, the rule of law and social inclusion.  Access to justice is a key indicator of a healthy democracy. I have a portfolio that will continue to grapple with the issue of access to justice.  I applaud the commitment of my predecessor but believe that the critical question remains for government: what have we achieved?  Two issues that I will continue to address as a high priority are:

  • to improve our access to justice framework by radically rethinking the way in which Commonwealth funds are distributed to organisations that provide community legal services; and
  • to make significant changes to substantive justice by ensuring that Australia’s legal framework facilitates the promotion and protection of human rights of all Australians.

The provision of adequate funding for community legal services, by which I mean legal aid, community legal centres, and Aboriginal and Torres Strait Islander Legal Services, has presented one of the most significant challenges to access to justice for the most marginalised and disadvantaged people in our community: a challenge and responsibility that has not been met.  Like my predecessor, this will be one of my primary endeavours.

A September 2009 report by my Department found that in 2007-08, over $1 billion was spent by the Commonwealth to support the federal civil justice system.  Only a little over a quarter of that amount, $280 million, was spent on legal assistance programs with the rest spent on legal institutions such as courts and tribunals.  In the same period, expenditure by Government agencies on legal services for themselves was over half a billion dollars.  For the decade prior to 2007, community legal centres received no increase in recurrent funding from the Commonwealth, other than annual indexation of around 2% – less than the real increase in their costs.  This meant an 18% reduction in funding over that period in real terms.

My concern though is not just about increasing funding.  I am also concerned to ensure that funding is directed to areas of greatest need.  Currently the Department measures met legal need (ie, services delivered).  This does not tell us about unmet legal need, about the person or family that does not know of the availability of potential assistance, or cannot get to the door or the telephone.

As A-G, I would implement evidence based legal needs assessments of geographic areas and of groups with special needs, and ensure that the results are taken into account in future funding decisions.

The promotion and protection of human rights in Australia is another key challenge to promoting effective access to justice.  Australia is the only developed democracy without a legislative or constitutional Charter of Rights which enshrines international human rights standards that our Government has made a political and legal commitment to uphold and promote at the UN level.  Although Australia is a party to the core human rights treaties, which provide a framework for human rights protections, there is no legal guarantee that these rights will be protected.

As Attorney-General, I will introduce a Human Rights Act for Australia and promote its adoption by both Houses of Parliament.  In doing this, I will be giving effect to the community expectations regarding the protection of human rights in this country: 87% of the 35,000 written submissions to the National Human Rights Committee that addressed the issue of statutory protection of human rights were in favour of a Human Rights Act.  A Human Rights Act will also ensure that we have:

  • a legal framework for the recognition and protection of the rights of all people, including the most marginalised and disadvantaged;
  • improved public service delivery; and
  • fulfilment of the legal and political commitments Australia has already made as a state party to international human rights instruments.

In the construction of a Human Rights Act, I will be generally led by the Committee’s report, which represents one of the broadest community consultations by any government.  However, I would also include more robust protections of the rights of Aboriginal and Torres Strait Islander peoples than suggested in the report.  In addition to making specific reference in the Human Rights Act to Aboriginal and Torres Strait Islander peoples’ rights in a way that reflects Australia’s commitments under the UN Declaration on the Rights of Indigenous Peoples, I would also undertake an audit of all relevant federal laws, policies and practices to determine their compliance with the rights of our Aboriginal and Torres Strait Islander communities.

Louise Edwards is Policy and Projects Officer with the National Association of Community Legal Centres