A Federal Charter of Human Rights: Would it make any difference?

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Left to right Helen Metzger, Veronica Snip, Brigette Rose, Frank Aloe, Luke Fowler.

In 2016 the Centre for Innovative Justice was approached by the Human Rights Commission to conduct a project exploring and evaluating the impact that a federal Charter of Human Rights would have had on the outcomes of significant Australian cases and laws.  Below the five JD students who undertook this huge task reflect on their time working on this fascinating project:

Our task

We considered the potential impacts of a federally legislated Human Rights Charter by assessing how such a Charter would have affected the determination and outcomes of significant Australian cases and laws.

What it involved

Our initial brief was to take the Victorian Charter (Charter Of Human Rights and Responsibilities Act 2006) as the basis for designing a ‘model’ Charter. Ultimately, influenced by other human rights instruments (for example, the ACT Charter and the UK Human Rights Act) we expanded the Charter to include federally relevant provisions, the right to commence legal proceedings against public authorities on the basis of the Charter alone (which differs from the Victorian Charter in which another cause of action is also required to attach the Charter arguments to), and to seek remedies. Encouraged by our mentors, we decided to draft our model Charter, in order to test it fully. You can view our model Charter at Appendix 1 of our report.

Once the Charter was drafted, we applied the tests within it to the decisions and legislation we had been given to consider, by placing ourselves in the shoes of the Parliament, public authorities (who make decisions in accordance with legislation) and the Courts.

For example, when standing in the shoes of Parliament, we had to apply the following test to the legislation under consideration:

  • the nature of the right being limited;
  • the importance and purpose of the limitation to that right;
  • the nature and extent of the limitation;
  • the relationship between the limitation and its purpose; and
  • any less restrictive means reasonably available to achieve the purpose of the limitations.

Our mentors, David Manne and Emily Howie, offered insight about how the laws might be applied by a court, urging us to consider international jurisprudence on the scope of particular rights and human rights principles. So while this exercise was an imaginative one, it was grounded in legal theory and precedent, albeit from outside domestic law.

Benefits of participating

Frank Aloe: I don’t think that I can rate the benefits of this experience highly enough. It provided us the unique opportunity to contribute to a national conversation, and have that contribution be recognised and supported by leaders in the field. All of which seemed well beyond our reach as law students at the beginning of this project.

The project has re-shaped my understanding of my ability to create tangible outcomes through the law. I think that these sorts of projects are genuinely transformative and I recommend anyone with the chance to get involved in a similar opportunity to do so.

Helen Metzger:  In summary, the project was an exercise in: drafting legislation, networking, application of law, human rights, political responsiveness to the law, judicial reasoning, and an extreme process of teamwork. To work with selected students is the best group work one can hope for. Our ability to recognise each other’s strengths and encourage them while working together was great. I came away from the project with absolutely hands-on experience – working with industry professionals, guided by extraordinary mentors, legal skills sharpened and inspired. As with my other placement with the CIJ, the project has changed the direction of my JD and aspirations. I can’t recommend the placements through CIJ highly enough. To be able to properly experience the legal sector before one is graduated is a gift and an opportunity.

Effectively, the Charter asks for transparency, justification, and evidence-based laws. What struck me in the project was how simple that is, and how resistant politics and the public can be to that. For some people, it seems ‘human rights’ are a dirty word – deeply ‘unpopular’ as a concept, despite them being what most of us would expect makes the basis for a valuable and happy life.

Luke Fowler: I was quite surprised at how the introduction of the Charter would not only improve human rights protections for Australians, but also how it would improve transparency and accountability in the law making process. This, in turn would allow the Australian public a clearer understanding of the laws that are being enacted in their name.

This project has shown me that the introduction of a Charter would lead to clearer and less ambiguous laws, which in turn would make it easier for the Courts and public authorities to interpret and administer the law, leading to fewer disputes and fewer lengthy and expensive court cases.

Brigette Rose:   Launching the Charter was fantastic. Professor Gillian Triggs, President of the Human Rights Commission, explained how vital a Charter is to Australia. She had everyone at the launch imagine Australia with explicit human rights protections, rather than an Australia that has to be informed by another country, PNG, that Australia’s asylum seeker detention policies are illegal and breach the right to liberty.

The launch of our federal Charter offered an opportunity to celebrate the wins of the current Victorian Charter, and to emphasise the difference that could be made to everyday Australians if a federal Charter was in place. It was a great day to both congratulate ourselves on the report that we produced, and to strengthen our resolve about why this and other pieces of work like it are so important.

Veronica Snip:  Participating in this project was a really worthwhile experience, way beyond the research and academic skills I gained. This was group work on steroids, and taught me to communicate, debate, assert myself and acquiesce when need be. Not only have we been able to make our mark on the human rights landscape in this country, but we were guided there by inspiring and brilliant leaders in the field. This report was a gargantuan task that we somehow managed to complete, and now makes me sound pretty impressive when I casually slip it into everyday conversation with friends/relatives/strangers. I loved going to the CIJ every week and debating human rights with 4 fellow law nerds and have taken much more out of this than I put in.

The report was launched by Emeritus Professor Gillian Triggs on Friday 12 May.  You can listen to a podcast of the launch here.

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Left to right back:  Anna Howard, Helen Metzger, Brigette Rose, Luke Fowler, Veronica Snip, Frank Aloe, Gillian Triggs, Rob Hulls.  Front:  David Manne, Hugh de Kretser.

 

Court of Appeal Reflection

 

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RMIT JD and VU law students with Court of Appeal Associates and other members of the legal profession
By David Gilbert, RMIT JD student

From the moment we entered the Supreme Court of Appeal, it was clear that the judges and staff saw our attendance as an opportunity to invest in the future direction of the legal profession. The internship was extremely well organised and structured providing a comprehensive insight into the machinations of the Supreme Court of Appeal and the Trials Division. A significant amount of time was afforded to us by judges and staff. Their commitment to ensuring that the internship was a rewarding experience was inspirational in the sense that it demonstrated the caring and mentoring culture of the legal profession.

Exposure to the diverse range of hearings that took place over the four days was invaluable. Two of the three hearings were criminal matters and the other was civil. The manner in which the appeals were argued by both parties was of particular interest, especially how the barristers interacted with the three judges at the bench. It was clear that the Supreme Court of Appeal judges were well prepared to hear the matters coming before them, to the point where it appeared they were alert to the strategies barristers were likely to deploy in their submissions. This was reassuring and demonstrated the integrity of the judicial process.

The most valuable lesson from this student’s perspective was that it is pointless trying to sell a dodgy car to a Supreme Court judge. The barristers in each matter put their best arguments forward dutifully representing their clients. The clarity of logical thought coming from the bench was strikingly apparent, leaving little scope for barristers to make headway by means of flamboyant advocacy skills supported by questionable legal principles or the cherry picking of facts.

The internship was inspiring, commanding all the respect the Court deserves.

My week at the Fair Work Commission

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RMIT JD Students Olivia Dean and Jack Faine
By Jack Faine, RMIT JD student.

Having spent a semester studying Labour Law I was looking forward to the week at the Fair Work Commission. Like other placement opportunities throughout my degree, the FWC placement brought my understanding of the law in to the real world. It coloured between the lines of my knowledge, giving meaning and practical understanding to the legislation I’d spent the last few months trying to get my head around.

The Fair Work Commission is immense. The first day we spent amongst the Registry learning about the the diligence of the team in reviewing the Modern Awards, the team analysing every EBA to assess whether employees are indeed ‘better-off-overall’ under the new agreements, and the team that produce the bench books. The enthusiasm of the young staff working in these teams has definitely sparked my interest in a job at the FWC after graduation.

The rest of our week was spent alongside Commissioners and their Associates hearing all manner of matters – ranging from a mediated general protections matter from a local Fish ‘n’ Chip shop, to a mediation between parties for breach of an EBA clause, to a two day unfair dismissal hearing involving cross-examinations and impressive advocates from both sides. After this we spent a morning with mediators who brought a delicate diplomatic touch to their job assisting negotiations between parties in unfair dismissals and general protections matters.

Both Olivia and I appreciated the time and effort put in by everyone at the FWC. They ensured that we were constantly exposed to different components of the FWC, and we were never short of people to sit down with and run through questions.

The CIJ placement opportunities are fantastic as you are exposed to professionals within different practice areas. I have learnt a great deal through conversations, questions, watching and just generally soaking up the realities of the legal profession.

My week shadowing Magistrate Ann Collins

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By Amy Nolan, RMIT JD student

I recently read an article by American Professor, William P. Quigley entitled ‘Letter to a Law Student,’ where he quoted one of his students who stated that ‘the first thing I lost in law school was the reason I came.’ This quote heavily resonates with me, with the experience of undertaking a law degree diluting my initial career goals and aspirations to practice social justice lawyering. With such a high emphasis on your Grade Point Average and with success defined as gaining employment in a top-tier commercial firm, I questioned my future as a law student during the first-half of my degree. After consulting some wise individuals who insisted that the practice of law could not be more different from the drudgery of studying law, I heavily immersed myself in the practical application of law through various internships and voluntary positions, rediscovering my original motivation for studying law; the desire to help people who are most in need. Having now volunteered and worked in the community legal sector over the past two years my passion and commitment to act with and on behalf of those who are suffering due to societal neglect, social decisions or social structures and institutions has been strengthened.

Many of these opportunities have arisen through the Centre for Innovative Justice (‘CIJ’) including my most recent internship, having the privilege to shadow Her Honour Magistrate Ann Collins, sitting on the Assessment and Referral Court (‘ARC’) list.

What has been described as ‘a little patch of green,’ the ARC list is a progressive example of where therapeutic justice meets the judicial system to provide a positive intervention for offenders coming before the Courts.

By addressing offenders’ mental health, housing and addiction issues among others by establishing a support network around the accused to help rehabilitate them into becoming a functional member of the community, the Court significantly reduces the inappropriate incarceration of seriously ill offenders and provides them with an opportunity for change. This heavily contrasts to the penal approach of the mainstream court system. By addressing the multitude of factors underlying the cause of the offending, recidivism rates significantly depreciate, with ARC presenting a ground-breaking blueprint to help break that cycle.

However, despite having a success rate of around 80 per cent, the ARC List is currently only implemented in the Melbourne Magistrates’ Court, limiting its availability to persons who live within this catchment. Questioning Magistrate Collins on why this model is not implemented in regional Courts, it appears it is simply a matter of funding. Due to the ongoing supportive nature of the ARC List, offenders may be monitored for up to one year on a suspended sentence, appearing before the Magistrate monthly to assess the offenders progress and to provide any further support systems if necessary. Here, politics prevails over common sense, as the long-term reduction in recidivism and subsequently contact with the Courts and prison system clearly outweighs the costs of running the ARC List. Therapeutic justice presents a better financial model, irrespective of the clear societal benefits I observed.

I would strongly encourage all students undertaking a law degree to engage in such opportunities, as they offer an invaluable insight to the true workings of the justice system and may also introduce you to less conventional professional legal pathways.