By Dr Scott Calnan (pictured inset above), a sessional academic in the Charles Sturt Centre for Law and Justice, who has successfully represented the First Nations Wunna Nyiyaparli people of the Pilbara region of Western Australia before the Human Rights Committee of the United Nations.

Traditionally, both Australian legal and political cultures have been resistant to ideas of human rights in favour of advocating the expansion of government and parliamentary powers (especially federal power) or otherwise to achieve social justice objectives, such as pensions or better wages and conditions for workers.

As a result of this resistance the human rights legal framework in Australia is extremely meagre compared to every other comparable developed country.

There is no national constitutional bill of rights, no national human rights act or legislation implementing most of the international human rights treaties and no regional or international court of human rights in which Australia can be subject to binding judgments on human rights issues.

Human rights laws and their enforcement are not the ‘be all and end all’ of human rights enforcement.

If there is a political and social culture in place, that is hostile to human rights or furthers human rights violations, such laws alone would be unlikely to be able to uphold human rights on their own.

Nevertheless, the absence of such laws does make the upholding of human rights considerably harder in particular circumstances.

As a result, because Australia is such a laggard in putting in place a human rights legal framework, this gives the role of lawyers in upholding human rights in Australia a particular nature and flavour.

Given this lack of Australian human rights laws, Australian human rights lawyers tend to use laws that are not human rights laws or reflective of international human rights protections to protect human rights set out in international law.

For example, regarding the rights of refugees, human rights lawyers argue using immigration law and other public law principles to try to push for protection of human rights standards.

A recent example of this is the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs¹ where constitutional principles were used to address the indefinite detention of people in the immigration system.

Another example of this use of non-human rights laws by human rights lawyers in Australia was the use of the common law to address the rights of Indigenous people to their traditional lands in Mabo v Queensland (No2)².

Despite the above practice, however, the lack of human rights laws inside Australia does place lawyers in Australia trying to uphold human rights at a distinct disadvantage compared to lawyers in other countries and sometimes leads them to undertake international litigation and engage with international organisations (or both).

An example of this is a case that I recently litigated in the United Nations Human Rights Committee for the Wunna Nyiyaparli Indigenous people of Pilbara region of Western Australia³.

In that matter, the Wunna Nyiyaparli argued that they had been denied native title rights to their traditional lands through an unfair court procedure that was destructive of their cultural rights as  Indigenous people.

The Human Rights Committee accepted that argument and found that Australia had breached its treaty obligations, requesting that Australia provide the Wunna Nyiyaparli certain remedies. This was the first international human rights decision on Australia’s native title system.

However, 15 months later, the Australian Government completely rejected the Committee’s decision and refused to provide any remedies to the Wunna Nyiyaparli.

As the survival of the Wunna Nyiyaparli people is at stake because they cannot currently access their traditional lands at all, they are now contesting this decision by escalating the matter through the UN and taking measures to have the matter raised elsewhere.

This illustrates another aspect of human rights lawyering in Australia that also happens in relation to human rights issues elsewhere. That is, that successfully protecting human rights can take a long time, may combine litigation and non-legal advocacy and may involve skills that are not commonly taught to Australian lawyers.

As a result of the above, Australian lawyers on Human Rights Day could fruitfully reflect on how they could improve the Australian human rights legal framework and better use non-human rights law and international law to further human rights.

Law schools and law students could also reflect on that day as to how the peculiar skills and knowledge necessary to protect human rights in the unusual Australian context could be better taught.