An Australian Bill of Rights could open an entirely new line of work for Australian firms.

Since the ACT passed its Human Rights Bill in 2004 and Victorian government passed its Human Rights Charter in 2006, new work opportunities have developed to the extent that some firms have created human rights teams.

These teams often consist of lawyers specialising in employment, discrimination and government or regulatory law and DLA Phillips Fox, Allens Arthur Robinson and Slater & Gordon are examples of firms which have gone down this route.

Rachel Nicolson from Allens Arthur Robinson has acted on human rights litigation matters, including alien or non-citizen tort claims involving US corporate complicity in human rights violations in other countries and has witnessed much 'hype' in the legal community as a result of increased workflows. "In Victoria and the ACT we have seen more work result from human rights statutes, and if a federal charter were also to be enacted, we could certainly see an increase in government-related work. This may include policy review, legislation compliance, training, and advice on decision making, contracts and private sector provisions," she said.

Other firms agree that any human rights legislation passed at the federal level would result in more compliance and training work for lawyers. "Private companies wanting to deal with government would need to opt in and comply with the legislation. We now have corporate social responsibility requirements in tenders so it isn't hard to imagine that later on, firms would also be asked what they do in human rights compliance," said Gilbert + Tobin partner Di Banks.

New Zealand's Bill of Rights was enacted in 1990 but few private firms set up human rights teams in response, preferring instead to leave it up to the Kiwi government to set up human rights practices at the Crown Law Office and Ministry of Justice. "This happened for many reasons, one of which is that the range of rights protected in New Zealand is narrower than those protected in the ACT Human Rights Bill or Victorian Charter of Human Rights," said Russell McVeagh partner Andrew Butler.

Long and winding road ahead

There is still a considerable amount of work needed to settle debates over a future Australian Bill of Rights. Banks pointed to current legislation in the ACT or Victoria, where the responsibility to assess non-compliant laws still rests with the government - even if a court has decided that a law is non-compliant.

New Zealand does not have an incompatibility declaration in its Bill of Rights, but according to Butler, a 2001 amendment to anti-discrimination law has allowed for successful incompatibility cases to be taken.

There are also concerns over the power that individuals should be given to take legal action or seek compensation. Giving all Australians the right to claim for breaches could run the risk of excessive litigation, said Banks, and any right to claim damages would be open to abuse.

The Victorian state government has not granted the right to make freestanding claims for damages under the charter. However, Nicholson challenged the necessity of avoiding excessive litigation, pointing to other jurisdictions where individuals can bring freestanding claims. "If one needs evidence that excessive litigation would follow from giving the right to make freestanding claims, I'm sorry but it's just not there," she said.

New Zealand gives individuals such power, although it was not originally in the Bill - rather it was developed by Kiwi courts. "We have seen more cases of prisoners winning damages over mistreatment, and citizens obtaining damages for faulty search warrants. For example there have also been challenges to evidence arising out of failures to respect the right to legal representation, but overall there has not been excessive litigation, massive or automatic payouts just because rights have been breached," said Butler.

Inevitable trend?

All lawyers interviewed by ALB agreed that an Australian Bill of Rights is overdue; since South Africa enacted its Bill in 1996, Canada in 1985, while in the US it was enacted as amendments to the constitution in 1791. "Australia is the only Western democracy that does not have statutory protection of rights and in this respect we really lag behind Europe, the UK, the US and many developing countries. It's almost inevitable that we have to catch up in the near future," said Nicholson.

Australia's national human rights consultation, chaired by Father Frank Brennan, is seeking submissions until 29 May and will report back to the federal government in late August. ALB