Lynch, Philip --- "The Establishment and Role of Human Rights Law Resource Centre" [2006] AltLawJl 13; (2006) 31(1) Alternative Law Journal 42

LEGAL CENTRES
The establishment and role of the Human Rights Law Resource Centre

PHILIP LYNCH^[*] describes how a new Centre in Melbourne will promote human rights in Victoria and Australia — particularly those of people who are disadvantaged or living in poverty — through the practice of law.

The Australian ‘reluctance about rights’ — and the lacuna between international human rights law and Australian domestic law, policy and practice — are well documented.^[1] 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.

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 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.^[2] In the international sphere, a number of United Nations treaty monitoring bodies have, over the last decade, expressed concerns about the human rights in Australia of children and young people, women, Indigenous people, gay and lesbian people, refugees and asylum-seekers, and prisoners.

The lack of domestic human rights legal protection across Australia is compounded by the limited use of international human rights law in domestic forums. While international human rights norms and principles may be referred to or relied on in the context of the review of administrative decisions, development of the common law, exercise of judicial discretions and statutory interpretation, the opportunities for rapprochement remain limited, reactive and ad hoc. Moreover, the receptiveness of courts, tribunals and individual judges to international human rights law submissions is highly variable, and the capacity of advocates in the area is limited. As Justice Maxwell of the Victorian Court of Appeal has recently stated, ‘the development of an Australian jurisprudence drawing on international human rights law is in its early stages’.^[3]

The limited 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 advice, assistance and advocacy about human rights must be an integral component of the implementation and realisation of such rights, with the right to equality before the law and the administration of justice being 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.

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 who 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 is in the process of identifying a number of specialisations and thematic priorities. Initial consultations with an Advisory Committee have disclosed that these may include:

• the human rights of people with a disability and people experiencing mental illness

• discrimination on the grounds of race, religion and ethnicity

• 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

• the importance, indivisibility and justiciability of economic, social and cultural rights.

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 and coordinates the litigation capacity and resources of pro bono lawyers and legal professional associations, the human rights law expertise of university law schools, and the networks and 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) (PILCH) 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 incorporated in January 2006 and will operate for an 18-month pilot period thanks to generous financial and in-kind contributions from PILCH, National Australia Bank, Victoria Law Foundation, Allens Arthur Robinson, the Law Institute of Victoria and the R E Ross Trust. Further funding is currently being sought for the evaluation of the HRLRC throughout the pilot period. Pending the outcomes of the evaluation, it is hoped that recurrent funding will be obtained from a range of philanthropic, private and public sector sources. The HRLRC is already in discussion with the Victorian government about funding the HRLRC 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 form a part of the human rights protective framework in Victoria. There are also clear complementarities between the HRLRC and the Victorian government’s commitment in the Justice Statement to support initiatives that ‘address disadvantage’ and ‘promote human rights’.

In its General Comment 3, the UN Human Rights Committee stated that the existence and activities of human rights organisations, particularly organisations that use international human rights law as a framework for operation, contribute significantly towards developing a ‘human rights-respecting culture’.^[4] It is clear that the provision and availability of human rights legal services to monitor, assess and advocate regarding human rights implementation, to take steps to ensure that human rights are protected and fulfilled, and to seek redress for human rights violations, is an important and necessary component of federal and State obligations in relation to the realisation of human rights.^[5] Particularly in the absence of a constitutionally or legislatively entrenched bill of rights, human rights-focused legal services can and should play a crucial role in the institutional framework necessary for the realisation of human rights and the full implementation of federal and State obligations under international human rights law.^[6]

The establishment and operation of the HRLRC represents an important and exciting development in the implementation and enforcement of human rights in Victoria. 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 in Victoria that leads to a much needed rapprochement with international human rights law.

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^[*] PHILIP LYNCH is Director and Principal Solicitor of the Human Rights Law Resource Centre, Melbourne.

© 2006 Philip Lynch

email: [e-mail]

^[1] See, for example, Hilary Charlesworth, ‘The Australian Reluctance about Rights’ in Philip Alston (ed), Towards an Australian Bill of Rights (2004) 21-2.

^[2] Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 6-9.

^[3] Justice Chris Maxwell, ‘Human Rights: A View from the Bench’, paper to the Annual General Meeting of the Administrative and Human Rights Law Section of the Law Institute of Victoria, 26 October 2005.

^[4] Human Rights Committee, General Comment 3: Article 2: Implementation at the National Level, UN Doc HRI/GEN/1/Rev.5 (2001) 112. See also Hilary Charlesworth et al, Towards an ACT Human Rights Act: Report of the ACT Bill of Rights Consultative Committee (2003) 17-41.

^[5] See especially ICCPR art 14.

^[6] Human Rights Committee, General Comment 3: Article 2: Implementation at the National Level, UN Doc HRI/GEN/1/Rev.5 (2001) 112.