Following recommendations by the National Human Rights Consultation that Australia adopt a human rights act, can lawyers still be accused of supporting such an initiative merely out of self interest?
It has been debated ad nauseum, but the Federal Attorney General finally has a full list of recommendations from the National Human Rights Consultation (NHRC) for the consideration of a human rights act.
All in all, there were 27,888 submissions supporting a human rights act, making up 87 per cent of the total submissions received during the consultation process.
"That is a very, very strong majority of support for such a reform, and it is also worth mentioning that it is consistent with all of the major opinion polling that I'm aware of in the last 10 years of so," Ed Santow, director of the Charter of Human Rights Project at the Gilbert & Tobin Centre of Public Law, told Lawyers Weekly following the release of the full report earlier this month.
The NHRC has recommended Australia adopt a dialogue model of a human rights act - similar to that already implemented in the Australian Capital Territory and Victoria. The committee fundamentally reported a lack of understanding in Australia as to what human rights are, formulating the need for an improved human rights culture and the need for human rights education in schools.
But those opposed to a human rights act remain stanch in their criticism. Some argue that a charter would give too much power to the hands of unelected judicial officials, and also go one step further, claiming a charter will have only one group of beneficiaries - lawyers.
George Brandis SC, a long-time opponent of a human rights act and Shadow Attorney-General said following the release of the report that: "This recommendation is the ultimate triumph of the elites. The Government should reject it. If it proposes to adopt it, it should put it to the people."
He added that: "This entire process has been driven by a small group of academics, lawyers and political activists."
Meanwhile, The Australian newspaper claims a human rights culture would lead only to a "litigation neverland".
For the elites only?
Santow is quick to debate the point that any human rights act would serve the needs of lawyers and lawyers only. He claims that the model recommended by the committee has been carefully planned to reflect the experience of other jurisdictions where the implementation of such a model has not led to an increase in business or fees for those involved in the legal process.
"The main gain in this kind of human rights act model is not in the courts; it is designed to prevent human rights abuses from occurring before they end up in high litigation," he says. "It is unlikely that it will lead to either a large increase in lawyers' work, or for that matter an increase in litigation."
Mark Blumer, national president of the Australian Lawyers Alliance, concurs. "People who will have recourse to a human rights act are people who don't usually have any money; they are usually marginalised people," he says. "Lawyers who act for these people don't usually do it for the money."
Father Frank Brennan, who headed up the NHRC, himself refuted claims that lawyers would be the only winners of a human rights act in his address to the National Press Club last week. He said that, instead of leading to an increase in litigation, it will actually enhance the role of Commonwealth public authorities in ensuring human rights in the first place - therefore potentially eliminating the need for litigation later on.
From picnic, to reputation building
In some areas of the public's view and indeed some aspects of the mainstream media, it's believed that lawyers only advocate enshrining human rights in law out of self-interest. Could such an implication arise out of a tarnished reputation of lawyers in the general community?
Lawyers will no doubt play a major role in the promotion of human rights, and any establishment of a human rights act in Australia.
But rather than leading to a lawyer's picnic, perhaps this could be the opportunity that Clara Davies, former president of the Australian Lawyers Alliance recently told Lawyers Weekly the profession needs in order to claw back its reputation.
"Maybe this is one area where many of us can actually give back," she said.
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