Ideas@TheCentre
Government’s love-hate relationship with lawyers
The release of a report on human rights last week sparked another flurry of commentary on the possibility of the Rudd government introducing a national bill of rights.
What seems to have dropped off the commentary radar is the government’s recent dissatisfaction with those who would defend rights under such a bill. Only weeks ago, Attorney General Robert McClelland announced his plan to overhaul the regulatory framework of the legal profession.
The central problem that the government identified is that lawyers, not clients, control cases and therefore costs. There is no reason this would be any different in human rights cases.
Clients will have little control over whether their case fits within the lawyer-driven definition of ‘rights.’ Despite the Australian Human Rights Commission (AHRC) promoting universal human rights education, lawyers will be tasked with unravelling the web of legalese used to define generally worded rights.
Billing in these cases would be controlled by lawyers and a clique of litigators but largely borne by working Australians, who have no control over costs. Publicly-funded litigation by legal aid, human rights commissions, and welfare rights centres against government would take the bulk of claims, making rights litigation almost entirely taxpayer funded.
True, there has not been a financially devastating wave of human rights litigation in the Australian jurisdictions that have adopted bills of rights. Yet some influential human rights lawyers are aiming to change that. The AHRC has made the high utilisation of its complaints mechanism a Strategic Aim for 2008–11, while the lawyers reviewing the operation of the ACT’s bill of rights are seeking an amendment to ‘turn the trickle of human rights case law into a stream.’
The idea that a vaguely worded bill of rights would promote the interests of the vulnerable is admirable but unlikely. It clashes with the reality of client abuse that the Attorney General has promised to address. There is no reason why the culture amongst corporate lawyers that he seeks to reform will be any different to the culture amongst human rights lawyers that a bill of rights would spawn.
Elise Parham is a Policy Analyst at CIS.
