MurUEJL 34
Human Rights and Social Justice: A frontline perspective from a Community Legal Centre
Community Legal Education Officer, Fremantle Community Legal & Advocacy Centre
||Volume 3, Number 4 (December 1996)|
When Jeffrey Rosales-Casteneda  rang me only a few weeks before this Conference to ask me to give this paper what went through my head? Human rights? CLCs don't have anything to do with human rights. Look I am far too busy, can
someone else give it? As the words left my mouth I realised what I was saying. You see I am like many people here and around Australia who see human rights as BIG words.
When those words are mentioned we see Rwanda and dead children, Chinese orphanages, we see Bosnia-Herzegovina and mass graves, Burma and children working on railways, USA and black men on death row, juvenile executions, riots in Timor, Malaysia, Guatemala
, Bangladesh, Pakistan, Cambodia, Iraq, South Africa.... Some of us will think about aboriginal deaths in custody, police behaviour towards Aborigines and young people, mining on sacred sites or refugees interned up in the North of Western Australia.
But does anyone think of appealing a social security decision as exercising human rights? Negotiating with a bank about to foreclose a mortgage as a human right? Assisting a woman whilst she is giving evidence for a restraining order as a human right? Ass
isting someone with a legal aid application as a human right? Trying to find a bed for a homeless man camping on Cantonment Hill? Negotiating with landlords/publicans, Homeswest, Alinta Gas, Telecom and Western Power as human rights? Applying for criminal
compensation for a child who was sexually abused as a Human Right?
Human Rights seem so very clear and definitive to us when we look at Cambodia and Tibet, but they are not so clear when we begin to look in our own backyards, in our own streets, in our parks and in our own homes and in our communities. The right to live
a dignified life can never be attained unless all basic necessities of life - income, food, housing, health care, education, culture and respect of human individuality - are adequately available to everyone. The term human rights covers this series of oft
en disparate rights and freedoms asserted by many to be universally accepted and prerequisites for peoples' enjoyment of a life based on the centrality of human dignity.
What community legal centres do, may not on face value, seem like human rights work - it has none of the glamour. Such centres do not have important looking men in suits running around, they almost never get media coverage, unless they make promises of
explicit, agonisingly gruesome stories. They do not have flag poles out the front of our offices that can be flown at half mast. Community legal Centres are completely invisible to the middle class Australian, but are well known and used by the disenfra
nchised, the poor, the illiterate, the disempowered, refugees, the homeless, the drug addicts, the working poor and I have yet to see a copy of the International Covenant on Civil and Political Rights or any optional protocols anywhere in a CLC.
And yet the mission statement of our Community Legal & Advocacy Centre (CLAC) could come straight out of the International Covenant on Economic, Social and Cultural Rights.
Fremantle Community Legal & Advocacy Centre is committed to redressing structural inequality within the community and strives to achieve social justice and the maintenance of human rights.
And here I was telling Jeffrey that CLCs really did not have any expertise on human rights. We know nothing about human rights because we are too busy trying to assist people keep roofs over there heads, feed themselves, gain access to the legal system, f
reedom from detention, live in safety from violence and gain access to some basic form of income!!!
It seems that in Australia we live in a culture of denial. The term 'human rights' is only relevant to what happens in other countries. Stanley Cohen expands upon this, he explains the denial process as follows:-
Initially we say "It doesn't happen here".  We deny victims; "She started it, look what they have done to us, they are troublemakers, we are merely defending ourselves, we are the real victims". We deny any injury done; "They
exaggerate, they don't really feel it, they are used to violence, see what they do to each other". We deny our responsibility; "These are the rules, someone else will help them, I am only doing my job, I did not make the rules, those things happened a l
ong time ago, I am not responsible, they should just get on with their lives".
If 'it' does happen here 'it' is something else. Domestic violence is not called a war crime in the war against women. It is barely even considered a criminal offence. Eviction from Homeswest properties is not called ethnic cleansing. Removing young peopl
e from the streets is not called harassment it is called cleaning up our streets or "Operation Sweep".
Even if it is what you say it is, we rationalise and then justify.
"Kids have no right to walk the streets. Domestic violence is a private issue. If you have no money then you cannot expect to have the same rights as those who do have money. Why don't you just get an education, a home, stop drinking, stop taking drugs, s
top having children, stop spending your money and pay your bills, stay with your husband, learn English, stop abusing your children, leave him and get a bloody job!!"
Here is an editorial in the Melbourne Age.
It was a response to an Open Family Foundation advertisement which dramatically depicted organised violence against homeless youth, and to some remarks made by Brian Burdekin, the
then Human Rights Commissioner, criticising Australia's performance of its human rights commitments. The editorial was titled 'Lets stop crying wolf'.
"..Australia is not an abuser of human rights. People here are not tortured by
security police, thrown into jail for their political opinions...homeless children
are not run down and shot by vigilante death quads here.....on a world scale, Australia is a decent and compassionate society and it is unfair to pretend otherwise."
The editorial concluded that while white Australia was not entirely blameless we should not pretend that we are human rights abusers.
Tell that to Rob Riley. Tell that to the families of those who have died in custody. Tell that to Albert Langer who was jailed for contempt in relation to his campaign to put the major parties equal last on ballot papers. Tell that to our clients who are
refused legal aid and lose custody of their children.
We live in a state of simultaneously knowing and not knowing. I am not talking about simple lies, where facts are accessible but they lead to a conclusion that is knowingly evaded. We see homeless people living under the Bridges
around Perth, we see people begging in our streets, we hear the cries of our battered next door neighbor but we deny via excuses, justifications, rationalisations or neutralisations. These do not assert that events are not happening, but seek to negate o
r impose a different construction of the event . 
If human rights are defined in a way that applies to military dictatorships then Australia scrubs up pretty well. If we accept less limited, internationally negotiated definitions of human rights it becomes clear that Austra
lia is as much a violator of human rights as its neighbors. We just call it something else.
Australians are complacent also about the protection of human rights. We proclaim the satisfactory nature of our legal system in serving the rights of individuals although occasionally we acknowledge that some groups may have legitimate complaints. But we
believe that problems can be resolved by what is often called "tinkering" at the edges of an otherwise admirable human rights legal regime.
But what we actually have is a haphazard and incomplete structure of human rights laws in Australia. No constitutionally entrenched rights and common law protection is minimal and difficult to access. Commonwealth government power to legislate to implemen
t international obligations with respect to human rights has been only partially and inadequately explored.
The states have given protection of human rights a low legislative priority and even Australia's participation in International Human rights instruments has been diffident.
Community Legal Centres have no illusions about our socio-political or legal system. For the last twenty five years they have been committed to working in their respective communities in areas where most human rights abuse occur.
If what community legal centres do is fundamentally human rights work why are they not called human rights centres? Indeed if the Fremantle Community Legal Centre was transported to Sri Lanka, it would automatically be labelled a human rights agency....bu
t of course human rights agencies are not required in Australia, no ones' rights are ever violated!
I would prefer that CLCs be renamed Social Justice Centres. There is very little to separate human rights and social justice, indeed the line between these two is very blurred. The distinction between them is no doubt the product of a range of factors, in
cluding the absence of constitutional guarantees of rights in Australia and more generally the Australian reluctance to analyse issues in terms of rights. To most CLCs there is no line between them whatsoever.
When we talk of human rights something strange occurs in governments. It is a term that seems to cross over both sides of politics, in some ways human rights seem an 'apolitical' (perhaps non-threatening) issue. Human rights are things that men in suits c
onfer and discuss. Money quickly appears for extensive reports and other initiatives. Human rights conjure up exotic locations and issues and idealistic abstract standards.
On the other hand the term "social justice" entails something completely different. Social justice conjures up visions of riots, marches, hunger strikes, tougher local issues. Social justice threatens the status quo. It takes a government of true will and
belief to pursue goals that are structured around the idea of "social justice".
Can Legal Aid's Human Rights unit be called a social justice unit? Whilst Legal Aid is an independent statutory authority, can they really operate independently of the policies of the government of the day? They are mandated to protect the rights of the
most disempowered, they have responsibility to speak out even against the government where rights are violated. But when the human rights abuser is the government of the day, can Legal Aid truly act against that government's policy?
CLCs are further removed from government and are therefore more accountable to their community and are able to speak out publicly where there is a perceived violation of human rights. This may be hindered though as we move into an era of greater governmen
t control of tax payers' money. It is called 'accountability'. Governments want a greater say over the activities of Legal Aid and CLCs. As witnessed recently ATSIC (Aboriginal and Torres Strait Islander Commission) was gutted under the pretext of 'acco
Unfortunately those whose rights are violated almost daily are so often not taxpayers or contribute via the taxation system only minimally. If our taxes are the measure by which we purchase desirable services within our communities, what hope do these peo
ple have of purchasing protection of their basic rights. Absolutely none. The onus therefore falls back onto the government (and the broader community) to rate human rights as a high priority.
Community Legal Centres are centres that operate with mostly non-legally trained staff, welfare rights advocates, financial counsellors and paralegals. At Fremantle we have 2 part-time lawyers and 6 full time non legal staff. CLCs are not hampered by the
legal culture as an ideological orthodoxy which limits activist options more than the lack of resources ever can. Welfare workers are perhaps the most efficient, flexible workers and important workers in CLCs. They see more c
lients than the solicitors can, they run more test cases and can approach issues in a way that is not limited by a strictly legal frame of mind.
CLCs are able to use alternative methods to achieve social justice because they are not bound by bureaucratic and hierarchical decision making structures. Funding for CLCs has traditionally been limited so alternative approaches to issues have had to b
e developed. This really means; "we have no money so what can we do that doesn't cost anything!!" Awareness raising; via public meetings using the media to publish issues and by involvement in community projects such as Domestic Violence Intervention Proj
ects and Poverty Committees, lobbying; Community Legal Education, law reform and the occasional brave attempt to manipulate the media.
There are many who believe the mandate of Legal Aid is litigation and criminal defence. But this is not entirely correct. Legal Aid does and must continue to work closely with CLCs, ALS (Aboriginal Legal Service), the private profession and the broader co
mmunity to bring systematic change through a range of non-litigious strategies.
Let's put a realistic perspective on this.
The right to an adequate standard of living along with rights of privacy and to freedom of expression, are three of the core human rights. These three rights are seen as providing the most basic form for the full development of an individual. Other civil,
political, economic, social and cultural rights are important but they can be regarded as providing a circle of rights which develop, refine and particularise these three main concepts. 
Article 25 of the International Bill of Rights provides that everyone has the right to a standard of living 'adequate for the health and well-being of himself and his family' and singles out single mothers and children as entitled to special care and assi
The International Covenant on Economic, Social and Cultural Rights Article 11 substantially reproduces paragraph 1 of the UDHR Article 25 and contains an important second paragraph dealing with the right to freedom from hunger. Article 11 of the ICESCR re
"The states parties to the present Covenant recognise the right of everyone to
an adequate standard of living for himself and his family, including adequate
food, clothing and housing and to the continuous improvement of living
conditions. The States Parties will take appropriate steps to ensure the realisation
of this right, recognising to this effect the essential importance of international cooperation based on free consent."
Lets apply the theory and look at aboriginal families evicted for what Homeswest term as 'antisocial' behaviour following a complaint from neighbours, or the family which was evicted for being less than $100 in arrears.
What do they do? Call Legal Aid? Go into Homeswest waving a copy of the International Covenant of Economic Social Political and Cultural Rights, call a private solicitor on their mobile phone from the tennis club?!!!
Think about this. A woman claiming a Sole Parent Pension escaping a domestic violence situation. She is followed constantly by her obsessive violent partner. He forces his way into her home and stays. She cannot ask him to leave out of fear for her and h
er children's safety. He has already found her once before. She waits for her time to escape again. He gives her no money and demands that she gives him her pension. The Department of Social Security investigate following on from their suspicions that she
is living in a 'marriage like ' situation. They decide that she is guilty and she is prosecuted for fraud.
We must be reminded that DSS Benefits are not a legal right, but in effect as of the grace of the government. The government provides income support according to its categories and pursuant to legislation, but an individual has no rights except to due pr
ocessing of his/her claim and then to proper payment of the pension/allowance once a claim has been established. Thus there is a right to due payment of your claim but not a general right to some form of income support regardless of what category you may
fit in to. 
So where do you go when DSS or CES breaches or prosecutes you? If you are reasonably articulate and educated and have the time you could run an appeal yourself. Most of the clients who attend CLCs are too busy trying to feed themselves after being denied
the only income they had. Many end up going from welfare agency to welfare agency trying desperately to get someone to help them. They are fighting a government department with long experience in these matters as well as plenty of resources.
You are alone, you have no money, you have heard of these things called human rights and social justice but unless you can access a service to help you implement them they are not worth the breath it takes to say them out loud. <
CLCs mode of operation attempts to work in such a way that when a group or class of clients face similar problems CLCs work with their clients to change the laws, administrative practices or social behaviours which underlie the problem rather than offer t
he more individualised (and sometimes ineffective) solution of casework assistance. One of the techniques to achieve this is through the running of test cases.
The test case work of CLCs naturally has focussed on those areas of law which have been neglected and ignored by the private legal profession. How many solicitors do you know who know anything about social security law? Let alone feel inclined to run a te
st case on an DSS procedural issue?
Test cases are extremely resource intensive as well as requiring expertise in the operation of higher courts. The never ending stream of day to day clients with difficulties that are important and always urgent makes it extremely difficult for CLCs to ma
nage test cases alone. CLCs are renowned for being unable to say 'NO'. The reality is that for many people CLCs are avenues of last resort. I have lost count of how many times I have said to a client "have you tried legal Ai
d" to get the exasperated response "Yes and they sent me to you". I then get out the list of other CLCs "Have you tried this one ?" "yes" 'this one' 'yes'........
How can you turn away a client who has been breached by the CES and is being denied the only income they have, in order to put in the time to work on a test case that could be overturned by a wave of a Minister's magic wand, be crushed by the innate conse
rvatism of the judiciary or appealed by a government department who merely hand the brief over to their paddock of in-house solicitors?
Tests cases can create a problem for CLCs of having to live up to unrealistic expectations. In effect, centres can become victims of their own publicity with expectations often developing within the community that the centre will take on particular cases
or do other particular work. If a centre advocates strongly on behalf of a group then this will (just as it should) result in more members of that group directing their requests for assistance to that centre and adding new strains to an already excessive
Legal Aid is available at the pleasure of the government of the day. It is a tool that should be used by the impoverished and their advocates to address - through litigation - injustices, anomalies and oppression, or simply to give individuals a fairer he
aring than if they were unrepresented. In short, it attempts to ameliorate some of the harshness of the inequitable distribution of wealth in our society.
To achieve for the disenfranchised whatever social change can result from litigation and other strategies and the decision of a court, realistically requires the involvement of Legal Aid in running test cases, and to that extent Legal Aid is an indispens
able part of the fight for social justice. Substantive rights available under welfare, housing or consumer credit law may be clarified and expanded by the running of test cases.
Legal Aid can only do as much as it is funded to do. If the complaint is that governments give insufficient support to legal aid to enable it to ensure service for the poor and disenfranchised, the failing is with the govern
ment not with the operation of Legal Aid. The very same can be said for Community Legal Centres. They can only do what the funding allows.
But the same cannot be said if the complaint is that Legal Aid could, with the resources it has been given, reach more of the poor and disenfranchised. By that I mean more of a focus on non-criminal matters such as family law, civil law and social securit
y matters where people who have absolutely nothing could lose everything and often face imprisonment. Legal Aid must begin to be defined beyond its conventional sense to include more than merely litigious and criminal issues.
Housing, income and access to adequate legal representation are human rights issues. Significant groups within the community have been denied any real opportunity to exert their rights. The political and economic climate of today is becoming increasingl
y conservative. The government is trying to fill apparently endless streams of black holes and the unemployed, women, recent immigrants, students, homeless people, mentally ill and Aborigines have become scapegoats for failed economic policies.
Indeed, sometimes it seems like a war. I'm not very endeared to war analogies but after a long day it can often seem like one. If you look at it as a war then CLCs are the front line, the foot soldiers and the Legal Aid Commission is the Commander-in-chie
f. If the commander is ill, then the foot soldiers are dying. If the LAC is suffering from lack of funds, then the CLCs are in need of intensive care.
CLCs are doing the best they can but as the foot soldiers they are suffering. They have, for too long now been seen by government as the 'cheaper alternative' to legal aid. CLCs can no longer be seen as the bucket that is ca
tching the Legal Aid overflow. If CLCs are turning clients away where do they go? Back to a violent, abusive relationship, back onto the streets, back to a house with no water or electricity or food, living lives without dignity or respect. Where do they
go? They go nowhere. They remain invisible and they remain mute. They do not register in our statistics.
Unless there is full access to services to implement human rights, all the Protocols and Covenants in the world can be signed and stacked up a mile high and they will all amount......to nothing.
Alston, P (ed.) Towards an Australian Bill of Rights. 1994. Centre for International and Public Law, Human Rights and Equal Opportunity Commission, Canberra.
Bailey, Peter. Human Rights: Australia in an International Context. 1990. Butterworths, North Ryde.
Bothmann, S & Gordon, R. Practicing Poverty Law. 1979. Fitzroy Legal Service Publishing, Fitzroy.
Bruce, S., Van Moorst, E. And Panagiotidis, S. "Access to Justice" in Alternative Law Journal, Vol.17, Nos.6, December 1992, pp:278-280.
CLC Notebook. Newsletter of the National Association of Community
Legal Centres Issue 3, May 1996.
Cohen, S. Human Rights and Crimes of the State: The Culture of Denial. Australian & New Zealand Journal of Criminology, Vol. 26, Nos.6, 1993,
Charlesworth, H. "Human rights and public interest advocacy" in Alternative Law Journal, Vol.19, Nos.1, February 1994, pp: 8-10.
Charlesworth, Hilary. "The Australian reluctance about Rights" in Towards an Australian Bill of Rights (199
4) Philip Alston (Ed.). Centre for International & Public Law, Canberra pp:21-54.
Chesterman, J. "A look back for a look forward: 20 years of Fitzroy Legal Service" in Alternative Law Journal, Vol.17, Nos.6, December 1992, pp:257-260.
Davidson, A. and
Spegele, R. (Eds) Rights, justice and Democracy in Australia. 1991. Longman Cheshire, Melbourne.
De Maria, William. "Second Class lawyers for second class Citizens" in Alternative Law Journal, Vol 17, No.6, December 1992, pp:266-270.
gainst women: The convention and the Committee. Fact sheet No. 22. Centre for Human Rights, United Nations, Geneva, January 1995.
Eastman, Kate. "Human Rights Remedies: A Guide" in Alternative Law Journal, Vol.17, Nos.4, August 1992, pp:169-172.
her, K. "Legal Aid: Right or privilege?" in Alternative Law Journal, Vol.18, Nos.1, February 1993, pp:21-26.
Forced Evictions and Human Rights. Fact Sheet No.25. Centre for Human Rights, United Nations, Geneva, May 1996.
Giddings, J. "Casework, Bloody
casework" in Alternative Law Journal, Vol.17, Nos.6, December 1992, pp:261-265.
Human Rights Manual. Department of Foreign Affairs and Trade, AGPS, Canberra, 1993 .
Justice Statement. 1995. Office of Legal Information and Publishing, Attorney-Genera
l's Department, Barton.
Kemp, D. "Legal Aid in the early 1990's: A broad view of a bleak picture" in Alternative Law Journal, Vol.17, Nos.3, June 1992, pp:124 - 126.
Mathew, P. "International law and the Protection of Human Rights in Australia: Recent
Trends" in Sydney Law Review, Vol.17, Nos.3, February 1995, pp:77 -115.
Noone, Mary Anee. "Imperatives for Community Legal Centres" in Alternative Law Journal, Vol.17, Nos.3, June 1992, pp:120-126.
Rice, Simon. "Legal Aid: A Domestic Diagnosis" in A
lternative Law Journal, Vol.19, No.6, December 1994, pp:276-280.
Stewart, D and Renouf, G. "Strategies for Community groups" in Alternative Law Journal, Vol.17, Nos.5, October 1992, pp:240-241.
The Committee on Economic, Social and Cultural Rights. F
act Sheet No. 16. Centre for Human Rights, United Nations, Geneva, May 1996.
Walker, K. "Who's the boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights" in Western Australian Law Review, Vol.25, December 1995, pp:239
Minister for Immigration v Ah Hin Teoh (1995) 128 ALR 353
List Of Human Rights Treaties to Which Australia is a party
The International Covenant on Civil and Political Rights. (ICCPR)
The International Covenant on Economic, Social and Cultural Rights. (ICESCR)
The First Optional Protocol to the
The Second Optional Protocol to the ICCPR
The Convention on the Elimination of all forms of Racial Discrimination (CERD)
The Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments (CAT)
The Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW)
The Convention on the Rights of the Child
The Convention on the Prevention and Punishment of the Crime of Genocide
The Convention on the Political Rights of Women
on the Nationality of Married Women
The Slavery Convention of 1926 (as amended) and the 1953 Protocol amending the 1926 Convention
The Supplementary Convention on the abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slav
The Convention on the Reduction of Statelessness
The Convention relating to the Status of Stateless Persons
The Convention relating to the Status of Refugees and related 1968 Protocol
Note Presented to the Legal Aid Conference on Human Rights 16 -17 August 1996 Perth, Western Australia. The author is Community Legal Education Officer at Fremantle Community Legal & Advocacy Ce
ntre and student at Murdoch University School of Law. I would like to thank Lynda Wennstrom, Eddie Cade, Trish Blake and Jill Davies for their comments, suggestions, encouragement and support.
 Jeffrey Rosales-Castenada is the head of the Human Rights section of Legal Aid in Western
 Human Rights Manual. Department of Foreign Affairs and Trade. AGPS. Canberra. 1993
 The International Covenant on Economic, Social and Cultural Rights was adopted and
opened for signature, ratification and accession by General Assembly resolution 220A(XXI)
of 16 December 1966.
 Cohen, S. "Human Rights and Crimes of the State: The Culture of Denial" Australian and
New Zealand Journal of Criminology, Vol.26, Nos.6, 1993, pp: 97-115 at pg.103.
 ibid at pg.107
 Published on 3 June 1993. Charlesworth, H. "Human rights and public interest advocacy"
Alternative Law Journal, Vol.19, Nos.1, February 1994, pp:8-10 at pg.8
 ibid 5 at pg.8
 ibid 3 at pg.109
 ibid 3 at pg.112
 ibid 6 at pg.8.
 Charlesworth, Hilary. "The Australian reluctance about Rights" in Towards an Australian
Bill of Rights (1994) Philip Alston (Ed.) Centre for International & Public Law, Canberra,
pp:21-54 at 21.
 ibid at pg. 8
 De Maria, William. "Second Class lawyers for second class Citizens" Alternative law
Journal. Vol 17, No.6, December 1992, pp:266-270 at pg.270.
 Bailey, Peter. Human Rights: Australia in an International Context. 1990. Butterworths,
North Ryde at pg. 319.
 The Universal Declaration of Human Rights. Adopted and proclaimed by General
Assembly resolution 217A (III) of 10 December 1948.
 ibid 4
 This is scenario is based on a case experienced by CLAC in 1995.
 ibid 14 at pg.327.
 It is important to note that a person who considers that their rights have been violated can
only make a compliant (communication) to the Human Rights Commission, when they
have exhausted all domestic remedies. As Australia offers relatively little protection for
the rights set out in the ICCPR, apart from discrimination legislation, there are often no
domestic remedies to exhaust.
 Stewart, D and Renouf, G. "Strategies for Community groups" Alternative Law Journal
Vol.17, Nos.5, October 1992, pp:240-241 at pg.240.
 Bruce, S., Van Moorst, E. And Panagiotidis, S. "Access to Justice" Alternative Law
Journal. Vol.17, Nos.6, December 1992, pp:278-280 at pg.279.
 Giddings, J. "Casework, Bloody casework" Alternative Law Journal, vol.17, nos.6,
December 1992, pp:261-265 at pg.264.
 Rice, Simon. "Legal Aid: A Domestic Diagnosis" Alternative Law Journal. Vol.19, No.6,
December 1994, pp:276-280 at pg.277
 ibid 23 at pg 277
 Noone, Mary Anee. "Imperatives for Community Legal Centres" Alternative Law Journal,
vol 17, Nos. 3, June 1992, pp:120-126 at pg 121.
 ibid 19. Compared with the UK, Australia spends half as much per head on legal aid.
 ibid 24 at pg.278