The Australian ‘reluctance about rights’ and the gap between international human rights law and Australian domestic law, policy and practice are well documented. Despite ratifying all of the major international human rights treaties, Australia has not fully implemented or incorporated their provisions into domestic law. Australia remains the only Western democracy without a legislatively or constitutionally enshrined charter of human rights. While Australia relies on a range of mechanisms to implement human rights – including the doctrines of ‘responsible government’, the enactment of anti-discrimination and privacy legislation at both state and federal levels, and the operation of federal and state equal opportunity commissions and tribunals – it has recently, and rightly, been said in a submission to the Victorian Human Rights Consultation Committee that: The fabric of human rights in Australia resembles more of a patchwork quilt, frayed at the edges, than a secure and comprehensive regime of rights and freedoms.
Unsurprisingly, the lack of legal protection of human rights in Australia is felt most regularly and acutely by marginalised and disadvantaged individuals and groups. A recent Victorian report on human rights, which was informed by over 2500 written submissions, found that people with disabilities, older people, young people, prisoners, Indigenous people, women, homeless people, ethnic and religious minorities, and gay, lesbian, bisexual, transgender and intersex communities are particularly vulnerable to human rights violations. In the international sphere, a number of United Nations treaty monitoring bodies have, over the last decade, expressed concerns about the human rights of children and young people, women, Indigenous people, gay and lesbian people, refugees and asylum-seekers, and prisoners, among others. The lack of domestic legal protection of human rights across Australia is compounded by the relatively limited use made of international human rights law in domestic forums by advocates and judges. While international human rights norms and principles may be referred to or relied upon in the context of the review of administrative decisions, the development of the common law, the exercise of judicial discretions, the interpretation of statutes, and arguably the application of the Australian Constitution, the receptiveness of courts and tribunals to international human rights law submissions in highly variable. Moreover, the capacity and expertise of advocates with respect to making such submissions is limited. As one commentator has written, ‘from a detailed consideration of the existing case law, it is clear that the potential significance of international human rights law … is yet to be fully realised in Australia’. Justice Maxwell, President of the Victorian Court of Appeal has similarly recently described ‘the development of an Australian jurisprudence drawing on international human rights law’ as being ‘in its early stages’.
The relatively limited capacity and expertise of lawyers with respect to the use of international human rights law in domestic litigation and advocacy is a significant deficiency in Australia’s framework of human rights protection. The availability of information, advice, assistance and advocacy about human rights must be an integral component of the implementation and realisation of such rights. This is because the right to equality before the law and the administration of justice is both a human right of itself and an important aspect of the promotion, protection, fulfilment and enforcement of other human rights. It is particularly important that human rights advocacy and legal services be available to marginalised and disadvantaged individuals and groups, many of whom are vulnerable to human rights violations and for whom ordinary legal services are not accessible. According to the UN Office of the High Commissioner for Human Rights, the availability and accessibility of human rights legal services and the justiciability of human rights are among ‘most important tools’ to prevent or seek redress for rights violations. The UN Basic Principles on the Role of Lawyers recognise this, referring in the Preamble to the fact that:
Adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provide by an independent legal profession.
Article 14 of the Basic Principles goes on to oblige lawyers, ‘in protecting the rights of their clients and in promoting the cause of justice’ to ‘uphold human rights and fundamental freedoms recognized by national and international law’.
Recognising the need to enhance the capacity of the legal profession and judiciary to develop Australian law and policy consistently with international human rights standards, the Human Rights Law Resource Centre Ltd (‘HRLRC’) was established in January 2006 to promote human rights in Victoria and Australia, particularly the human rights of people that are disadvantaged or living in poverty, through the practice of law.
The HRLRC will seek to achieve this aim by providing pro bono expert advice, assistance, resources and support to community legal centres, human rights organisations, non-profit organisations and marginalised or disadvantaged groups to pursue human rights litigation, policy analysis and advocacy, education, monitoring and reporting.
Given the need to think structurally and strategically about the application of limited resources to have the greatest impact, the HRLRC has identified the following thematic priorities to target its work over the first two years of operation: • the treatment and conditions of detained persons, including asylum-seekers, prisoners and involuntary patients; • the content, implementation, operation and review of the proposed Victorian Charter of Human Rights and Responsibilities; • economic, social and cultural rights, particularly the rights to health, housing and social security; and • equality rights, particularly the right to non-discrimination on the grounds of race, religion, ethnicity and poverty.
The HRLRC has also identified people with a disability, people with a mental illness, Indigenous people, people living in poverty, children and young people, and people subject to discrimination on the grounds of race, religion and ethnicity as priority target groups for action. This prioritisation recognises the particular vulnerability of members of these groups to human rights violations.
The HRLRC is the first specialist human rights law resource centre in Australia. It will also be the first centre to pilot an innovative service delivery model that draws on the litigation capacity of pro bono lawyers and legal professional associations, the human rights law expertise of university law schools, and the grass root connections of community legal centres and human rights organisations.
The HRLRC proposal was developed over a two year period by the Public Interest Law Clearing House (Vic) and Liberty Victoria, with significant input from diverse stakeholders, including legal professional associations, community legal centres, legal aid, the private legal profession and human rights and community organisations.
The HRLRC was formally launched on 14 March 2006 by Justice Chris Maxwell and Geoffrey Roberston QC. It will operate for a two year pilot period thanks to generous financial and in-kind contributions from PILCH, the National Australia Bank, the Victoria Law Foundation, Allens Arthur Robinson, Mallesons Stephen Jaques, the Law Institute of Victoria, the Helen Macpherson Smith Trust and the R E Ross Trust. Recurrent funding is currently being sought from the Victorian Government as a component and outcome of the Government’s Human Rights Consultation Project, with the Committee’s Report recognising and recommending that human rights advocacy services from a part of the human rights protective framework in Victoria.
As the UN Human Rights Committee stated in its General Comment 3, human rights-focused legal services play a crucial role in the institutional framework necessary for the promotion, protection and realisation of human rights. The establishment and operation of the HRLRC represents an important and exciting development in the implementation and enforcement of human rights in Victoria and Australia. The HRLRC will significantly enhance sectoral capacity to undertake human rights litigation and advocacy and has the potential to progressively develop a domestic human rights jurisprudence that leads to a much needed rapprochement with international human rights law.