The legal community answers its critics on the suggestion that formalised human rights are advocated largely as a means to further bolster their workloads, Angela Priestley reports
Claims that an Australian human rights charter, in any form, could serve as little more than the caviar and cheese of a lawyers' picnic, have run rife in the human rights consultation.
The consultation period, which asked the public and interested groups to come forward on how human rights and responsibilities could be better protected and promoted has now closed, but it inspired some fierce debate over whether or not a flood of litigation would be the end result of a charter, and if this was the real reason the legal community so favourably advocates human rights legislation.
When that debate centred around the pros and cons of whether or not Australia should introduce a document formalising human rights in legislation, lawyers and their so-called reputations of greed have served as a target for much that could be wrong with such a charter.
But when it comes to debating human rights, the perception of lawyers becomes even more contentious. Whether it be a constitutional human rights model (which is unlikely), a statutory, or hybrid model, some argue that the reason lawyers advocate enshrining human rights in legislation is clear: Australian lawyers want in on the self-interested litigants who will seek their human rights claims in the courts.
Meanwhile, a sample of public submissions to the Human Rights Consultation reveals some even more colourful results. One submitter, Andrew Stone, argues against a charter because he believes, "it will inevitably be exploited by activists and lawyers at the expense of those seeking firm, commonsense justice."
Another, Richard Mews, writes in a separate submission that a human rights charter would be "of no benefit to anybody except to puff up a number of wealthy lawyers". Others refer to any notion of a human rights charter as offering little more than a "lawyers picnic".
Law associations, lawyers, academics and law firms have, for the most part, expressed much opinion in favour of a human rights charter, particularly a statutory model. The advocates have been strong and loud, but does voicing such opinions merely come down to acting out of self-interest for the profession?
Little in the numbers
The Law Council of Australia says it can't see how a charter could engender any sort of financial benefit on the legal profession as a whole, other than to possibly reduce the pro bono workloads of lawyers.
"We believe basic human rights should be protected by an overarching instrument that sets out those rights," says Law Council president John Corcoran. "We reject the assertion [that] that principle is in place because we have aimed to increase work for our members, and members of the profession, by introducing a charter."
Australian Lawyers Alliance president Clara Davies says it's necessary for groups such as the Alliance to get out and educate the public in order to counteract some of the opponents of formal human rights who play on the often poor perception the public has of lawyers. "It's a really unfortunate thing to have to say, but I think the profession really hasn't had a very good reputation across the public, so it's really easy for opponents to use these arguments and for it to actually resonate with the public who might not have an understanding of what the current situation is," she says.
"We have to educate [the public] that [human rights] would not be a lawyers' picnic, it wouldn't be a blow-out of litigation or matters before the courts and it wouldn't be the case that judges simply have all the power shifted toward them."
An industry of less
The idea that lawyers advocate formalised human rights only out of self-interest suggests that a human rights charter would spawn an industry of human rights law. It's a suggestion that Davies says is simply not true - especially given the fact that most lawyers already involved in human rights work are involved on a pro bono basis.
"It's not something whereby you would suddenly see these mega-law firms set up just in the area of human rights law," she says.
Davies points to the fact that most forms of human rights breaches occur within marginalised or disadvantaged groups within the community, usually upon individuals who simply don't have the money to engage a lawyer on a private basis anyway. "Those people being able to pay for legal services is not going to suddenly change overnight," she says.
Kate Mills, a partner at Mallesons Stephen Jaques who was responsible for the firm's submission to the Human Rights Consultation, agrees. "We won't necessarily end up with a firm that only specialises in human rights law, and even if we did, it would be a very small firm," she says. "I reject the proposition that there is an industry out there dealing exclusively with human rights that's going to be given the impetus to grow exponentially by reason of a small change in legislation."
Director of the Human Rights Law Resource Centre, Philip Lynch, sees little but better governance emerging: "And if good government is an industry, then I guess it's an industry," he says. "And if it does create any additional work, it will be for people who want to work for free anyway."
Rather than an industry, legal representatives agreed that formalised human rights could very well reduce the workloads of lawyers. Lynch says the model promoting a dialogue between the courts and the Parliament which is being proposed by the Human Rights Law Resource Centre does, by its very nature, encourage the consideration of human rights as legislation is being developed.
"That, in and of itself, reduces the likelihood and instances of human rights breaches that may give rise to legal claims or otherwise," he says. Lynch believes that, ultimately, a charter will actually reduce legal proceedings by requiring human rights to be considered at the outset in legislation and policy. "It will be used as an effective risk minimalisation tool," he says.
Corcoran points to the example of Dr Haneef's case to make his point, noting that if a charter had been available to bring to light the fact that Dr Haneef was being deprived of his basic human rights, then the matter may not have gone as far as it ultimately did. "We're not saying that we can avoid all cases like that, but clearly, if you have a charter that benchmarks basic human rights and the government elects to have it and knows to follow it, it's arguably less likely that you will end up with a situation like that," says Corcoran.
The familiar experiences
The argument that a burst of litigation activity would occur as a result of formalised human rights does not make sense in the context of Australia's current experience at the state level. According to Liam Burgess - a solicitor at Mallesons who was also involved in the firm's human rights consultation submission - empirical evidence suggests that waves of litigation simply did not occur when Victoria and the ACT introduced their own human rights charters.
"That doesn't mean that it's been a failure, but that the primary function of these documents is to ensure that legislation is considered in the light of these rights, and that the government is making decisions in light of these rights so that litigation never arises," says Burgess. "Most of the benefit is coming not from lawyers being involved, but from lawyers not needing to be involved in these things because they are already being taken care of at the government level."
Victorian Attorney-General Robert Hulls backed up these statements recently, noting that since the Victorian Charter of Human Rights inception, the courts have intervened less than 20 times. On top of this, Lynch adds, the majority of cases that have actually been run were run pro bono.
Mills compares the debate surrounding human rights legislation to past debates over the sexual and racial discrimination acts in Australia. "[Those acts] haven't proved to be the great pavements of gold for lawyers that people might have thought they would have been at the beginning," she says. "They have actually been very significant in advancing the rights of minority groups in Australia."
Lynch says many of the human rights legislation opponents - especially the politicians - should know better. "They know what [a statutory model] looks like and how it's likely to operate, and that it doesn't affect parliamentary sovereignty, nor does it result in a radicalisation of the judiciary and nor can they point to any evidence of floods of litigation."
Corcoran says it may just be a matter of opponents not looking closely enough at what has actually been proposed - especially if they are still espousing the notion that a charter would involve the transfer of power from the elective parliament to the judiciary. "If the charter did give rights to strike down laws and award damages, then that is a completely different scenario," says Corcoran.
But Davies is one who believes human rights could present an opportunity for the legal profession to claw back its reputation in the public arena. "Maybe this is one area where many of us can actually give back," says Davies. "Where the self-interest is put aside and the lawyers try to give something back to the community."