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Access to justice
Your Honours, distinguished guests:
I acknowledge the traditional owners of the land, the Wurrindjeri people of the Kulin nation and pay my respects to their elders, especially to those elders present today.
May also thank our host the Hon Justice Mordy Bromberg and the ICJ for inviting me to this, the ninth Community Opening of the Legal Year.
Together we celebrate the partnership of the legal system with the community it serves. We recognize the importance of the community in supporting the rule of law to ensure a fair and just society; for it is vital to that partnership that we understand how the rule of law underpins our successful multicultural and democratic nation.
My evolving concern as President of the AHRC is that while the phrase,” the rule of law”, slips smoothly from our lips, few in the community have a clear idea what it means; few Australians understand our constitutional structure; few Australians understand the principle of the separation of powers among the executive, legislature and judiciary; even fewer Australians realize that this country is exceptional in its failure to include constitutional or legislative rights and freedoms as part of our national laws.
Here in Victoria you have a charter of rights and the community has a stronger sense of the rule of law. Indeed, it was the Victorian community that reacted so swiftly to the proposed Operation Fortitude under which border force officers were to stop and question Melbournians to establish their visa status.
But for most Australians, the idea of the rule of law is abstract and hard to grasp. So let me give a human face to honour this principle.
This is the story, on the public record, of a 22 year old Aboriginal woman in WA, Ms Dhu. About two and a half years ago she died in police custody in a cell in South Hedland of the Pilbara region of WA. The police had been called to Ms Dhu’s home by her grandmother after Ms Dhu had allegedly been subject to domestic violence at the hands of her partner. When the police realised that Ms Due owed $3000 in fines, she was arrested and held in a lock-up. When she complained of pain from the violence she had suffered, she was taken to hospital where, it is alleged the police said she was faking. She was diagnosed by medical staff with ‘behavioural issues’ and discharged to police custody. Again, she complained of illness and was taken to a hospital, again she was returned to her police cell without treatment. Finally, and for the third time, she was put into a police van to be taken to the hospital, dying on way from fractured ribs leading to septicaemia and pneumonia.
While, after these two and a half years, we have yet to receive the Coroner’s Report, Ms Dhu’s story is one of hundreds of often impoverished victims of domestic violence, imprisoned under an unjust fines system, some dying in police custody.
What was the role of the rule of law in this tragedy?
What of Ms Dhu’s common law rights to freedom from arbitrary detention, to legal advice, to protection from violence, to fair access to medical care? I suggest that our failure as a community to understand what the rule of law means in practical terms has allowed governments to assume unprecedented powers of executive discretion, to diminish and in some cases remove the judicial power of review and to fail to provide fair access to justice for the most vulnerable.
Ms Dhu’s case demonstrates how critical it is to protect the rights of those marginalised by society. For the test of a just society is, how does it treats the most vulnerable?
It practice it often falls to community legal centres and legal aid organisations to ensure that the rule of law has meaning for the disadvantaged. Over the last few years many of these bodies have seen continuing funding uncertainty and reduction.
- The Productivity Commission has reported that an extra $200 million in funding is required to meet the demands of legal assistance.1
- Community legal centres are facing a 29% cut in Commonwealth funding nationally2 ( drop from $42m this year to $30m for each successive year)
We have long relied upon the generosity of the legal profession, NGOs and the community to fill the gap in services. Indeed, this is the ray of light I see in this tale of woe.
Most particularly, at the Australian Human Rights Commission, we rely to a significant degree upon the pro bono support of lawyers throughout the profession.
As part of its statutory mandate, the Commission receives about 20,000 inquiries and 2,300 formal complains each year. We are charged with monitoring compliance with the human rights treaties to which Australia is a party. Australia has been a significant global player in creating the international human rights regime, from the time of Doc Evatt and the Universal Declaration of Human Rights in 1948 to the present. But we have not implemented those treaties such as the ICCPR or the CROC in our domestic law. Indeed, under recent amendments to the Migration Act 1959 (Cth) references to the Refugee Convention have been repealed. The consequence of the failure to pass laws to give effect to international human rights is that while we at the Commission bed our advocacy in this law, the courts and Government Ministers do not consider themselves bound by it.
Hampered by this curious and exceptional disconnect, we investigate and conciliate complaints of discrimination on the grounds of age, sex, race and disability discrimination and also complaints for breaches of human rights by the Commonwealth.
In addressing these complaints, the Commission provides individuals with a free, timely and cost efficient means of dispute resolution. Achieving a conciliation rate of over 72% last year, the Commission provide thousands of Australians with a genuine opportunity to access justice.
I would like to mention three of the legal issues that are of particular concern to the Commission.
The first is the disproportionate representation of Indigenous people in prisons
Aboriginal and Torres Strait Islander adults are 15 times more likely to be imprisoned than non-Indigenous Australians. Additionally, the juvenile detention rate for Aboriginal and Torres Strait Islander people is around 24 times the rate of non-Indigenous youth. The problem is not helped by the introduction of the Northern Territory’s ‘paperless arrest’ powers which was, for the most part, upheld by the High Court late last year3. Such powers have significantly increased the detention of Aboriginal Australians. This decision by the High Court illustrates the disconnect between Australian law and international human rights law. In the absence of a charter of rights or other constitutional protections, in principles the courts may call upon the common law. However, as the NT legislation was interpreted to be unambiguous, there was no opportunity for the court to import the principles of the ICCPR against arbitrary detention.
Addressing the unacceptable and needless rates of indigenous detention will require major reform. My colleague, the Aboriginal and Social Justice Commissioner Mick Gooda, argues for reinvestment so that a proportion of the funds that would have been spent on imprisonment are diverted to community programs and strategies to respond to the underlying causes of Indigenous offending. These sorts of approaches, are integral to breaking a cycle of reoffending, which is quickly becoming an inter-generational problem.
Yet for those who are already caught in the prison systems, it falls to the legal assistance providers to provide proper support, such as those that make up the Aboriginal and Torres Strait Islander Legal Services (ATSILS). Again funding uncertainties for these organisations can adversely affect the people who most need assistance.
I commend those working within Aboriginal Legal Services around Australia, and those who have committed to doing pro bono work on their behalf. Their tireless efforts are often overlooked, and the opening of the legal year is a great opportunity for us to reflect on their work, providing better legal services to Indigenous peoples.
The second issue of concern is the ‘administrative detention’ for years of those with cognitive disabilities
In a complaint to the AHRC, we found that four men with intellectual and cognitive disabilities had been held for many years in a maximum-security facilities. Each complainant had been found unfit to stand trial or found not guilty by reason of insanity. In respect to two of these men, they would have received a maximum sentence of 12 months had they been convicted by a court. Instead, they were imprisoned for four and a half years and six years respectively.
In some Australian jurisdictions, most notably WA and Queensland, there is little access to legal advice or regular review for many of these people. Funding concerns are typically given as the explanation as to why the prison detention of those with cognitive disabilities is employed rather than medical support facilities. This no longer an adequate response and is a breach of the Convention on the Rights of Persons with Disabilities.
Judicial review for asylum seekers
Finally, I would mention recent migration laws that diminish the legal rights of asylum seekers and refugees. In the last few years we have seen Federal Parliament passing various immigration laws giving increasing executive discretion to the Minister for Immigration, while also limiting rights to judicial review.
There are currently over 25,000 -30,000 asylum seekers waiting for their applications to be processed. The Fast Track process adopted by the Government means that many of these people will have limited form of merits review and will be subject to new legal tests to meet our national definition of refugee status. Application forms are many pages long and exceptionally hard to complete, especially for those from culturally and linguistically diverse backgrounds. Almost needless to observe, most will not have legal representation or advice during this process. Where an application is refused, and I believe the system is designed to ensure a higher rate of rejection, many will apply for judicial review. I am pleased to say that yet again the legal profession and wider community have risen to the challenge.
A Refugee Justice Network, is being formed to develop a group of barristers and solicitors who can provide assistance to asylum seekers applying for judicial review. I want to commend the efforts of Justice Connect and RACS (Refugee Advice and Casework Service) who are developing this network. Their work will be play a large part of whether these asylum seekers receive proper access to our legal system. I urge any of you who are interested to consider getting involved.4
It remains true that we must exercise constant vigilance to ensure the rule of law is respected in Australia, especially through public education on the importance of the rule of law to our democracy. But above all it is the community that promotes and protects our national commitment to fairness and justice – to a fair go.
I wish all those here today from community groups my best wishes for a fruitful year.
1 Productivity Commission, Access to Justice Arrangements – Inquiry Report (2014)
2 Commonwealth funding for CLCs will drop from $42.2 million in 2016-2017 to $30.1 million in 2017-2018 and $30.6 million in 2018-2019
3Northern Australia Aboriginal Justice Agency v Northern Territory,  HCA 41
4 More information on the Refugee Justice Network can be found at http://www.racs.org.au/wp-content/uploads/2013/01/The-Refugee-Justice-N…