Human Rights and Access to Justice A
ccess to justice is fundamental to a fair and inclusive
society and a central tenet in addressing disadvantage
and inequality. Inadequate protection of human rights,
poor access to legal services and other inequities in the
legal system can have far-reaching consequences for
people who are already experiencing disadvantage or in
crisis.
People come into contact with the legal system for many
reasons, such as domestic violence, family breakdown,
debt or mortgage stress, tenancy or employment disputes,
and crime. Access to justice, including the right to a fair
hearing and access to legal representation, is essential for
protecting human rights, both in these situations and in
general
1
. There are a range of barriers that disadvantaged people
face when accessing legal services, however, including
high cost of legal services; restrictive legal aid eligibility
guidelines; poor coordination of legal aid services;
unavailability of legal aid services due to service providers
having a conflict of interest; and difficulties in accessing
interpreter services2.
Multiple Disadvantage Some Queenslanders are far more likely to suffer poverty and social exclusion. And the effects are multiplied when individuals and families belong to more than one group. QCOSS recognises the serious disadvantage faced by:  Aboriginal and Torres Strait Islander communities  People in rural and remote communities  Culturally and linguistically diverse communities  People with a disability  Young people  Older people  Lesbian, Gay, Bisexual and Transgender communities Improving access to justice is essential to breaking the cycle that leads to homelessness and poverty.
(Legal Aid and Access to Justice Commonwealth of Australia )3
Key Issues Human Rights Previous government inquiries have recognised that human rights protections in
Queensland are piecemeal and incomplete4. The absence of an effective framework for the
protection of human rights results in vulnerable and disadvantaged Queenslanders being
denied justice in their interactions with the government and legal system. In contrast, where
other jurisdictions have enacted state or territory based human rights acts, the development of a
Q C O S S P o l i c y P o s i t i o n – N o v e m b e r 2 0 0 9 human rights culture in the public service has allowed vulnerable individuals to negotiate fair
outcomes and prevented the implementation of laws that disadvantage individuals. For
example:
 A mother of five children in the care of Queensland child protection authorities was required
to obtain suitable accommodation as a condition of reunification. Since she could not afford
private rental accommodation, she applied for public housing, but was unable to receive
assistance until her children were in her full time care, delaying reunification5. In contrast,
advocates in the Australian Capital Territory (ACT) were able to invoke protection of family
life under the ACT Human Rights Act to gain access to public housing for a homeless
mother6.

Move-on directions issued against a Queensland man have interfered with his ability to carry
on his work selling magazines on the street7. In contrast, human rights principles enshrined
in the Victorian Charter of Human Rights and Responsibilities led a local council to reject
calls to implement move-on powers in its central business district8.
QCOSS is part of a coalition of organisations, including Amnesty International, the Queensland
Council for Civil Liberties, Just Rights Queensland, and others, which have formed the Fair Go
Campaign to lobby for the introduction of human rights acts in Queensland and at a national
level, and the development of a human rights culture.
Access to Legal Services and Justice The Law Council of Australia believes that a crisis in the legal assistance sector is imminent
as a result of current economic conditions9. This will be driven by both increased demand
for legal assistance and a reduction in funding from public trust funds. Data from community
legal services, for example, show an increase in services being provided in areas such as
employment, credit and debt, and tenancy services10.
“….compared with the same period in the previous financial year, there have been significant increases
this year… in certain legal areas, the areas most likely to be impacted by a financial crisis.”
(National Association of Community Legal Centres)11.
Issues affecting access to legal services include:
 Community Legal Centres (CLCs) find it difficult to be as open and accessible as is
required in the face of increased and more complex demand on services, rising operational
costs, and inability to attract and retain experienced staff due to limited funding. The results
are reductions in direct service delivery, the geographical spread of services, outreach,
expertise, complexity of assistance available, and community legal education12. The 2009
ACOSS Community Sector Survey found that in 2007-08, legal services turned away 16.4%
of eligible people seeking assistance.

Asset and means test thresholds for legal aid are set relatively low, excluding many people
who do not have the resources to pay for private legal representation13. As a result of
funding conditions, funding levels, increasing demand, and rising costs, legal aid
commissions are unable to meet demand, particularly in civil law areas14. This will be
compounded by the global financial crisis, with increased numbers of people meeting the
means and asset tests and reduced funding from interest on solicitors’ trust accounts15.
Figures published by National Legal Aid show that for 2009-10, Legal Aid Queensland will
receive nearly one-third of its income from the Legal Practitioner Interest on Trust Accounts
Fund, more than any other state. It also receives a lower proportion of its funding from State
Government grants than in any other state, and is likely to face a $4 million shortfall in 20091016.
2 | P a g e Justice and Human Rights
Q C O S S P o l i c y P o s i t i o n – N o v e m b e r 2 0 0 9 
Demand for pro bono assistance is increasing, reflecting the increase in unmet legal
needs. However, there is limited capacity for pro bono services to cover the gaps in legal
assistance, particularly since few commercial firms have expertise in the key areas of
need17. Inadequate funding of community legal centres, Legal Aid, and other frontline
services also creates barriers to accessing pro bono assistance, since they act as a first
point of contact18.

The proportion of self-represented litigants is increasing as access to legal services
becomes increasingly difficult. A survey of self-represented litigants in Queensland found
that 85% had unsuccessfully applied for legal aid at some stage in their litigation19. Such
litigants are significantly disadvantaged due to their unfamiliarity with the law and legal
system.
Certain groups also face additional difficulties in accessing legal services:
 Homeless people have a range of urgent competing needs and often cannot prioritise even
significant legal issues (in areas such as Criminal, Family, Tenancy and Debt law20). Access
to justice for homeless people requires a coordinated approach and access via outreach
and/or services provided in places that homeless people frequent.

Greater investment in interpreter and translator services is required for people from
Culturally and Linguistically Diverse (CALD) backgrounds to be able to access legal
services. Effective use of these services will be enhanced by developing the cultural
competencies of police, as well as developing community education strategies that address
many of the difficulties CALD people have in negotiating and understanding our systems
and in accessing meaningful information in their own languages. In addition, although the
international human rights framework recognises that free access to an interpreter is
necessary for procedural fairness in criminal and some civil hearings, in Queensland there is
no right to an interpreter in either criminal or civil trials21.

People in rural, regional and remote areas face a range of barriers when accessing the legal
system. These include limited number of solicitors available; frequency of conflict of interest
(with limited number of legal firms in one location); additional travelling and communication
costs; and heavy reliance on communication technology (such as email, internet and
teleconferencing) which is often inappropriate, unreliable or inaccessible.

Young people face particular difficulties in accessing justice, especially in matters of child
protection and family violence. The 1997 report of the Australian Law Reform Commission
and Human Rights and Equal Opportunity Commission into the legal position of children
recommended the development of standards for representation of young people in family
law and care and protection proceedings. A recent review article noted that these
recommendations have not been implemented, and direct participation by child litigants
remains low in all jurisdictions22.

Aboriginal and Torres Strait Islander people face significant barriers to accessing legal
services, including distrust of the legal system, lack of cultural awareness of mainstream
services, language barriers, systemic discrimination, and lack of understanding of potential
legal resolutions to an issue. Aboriginal and Torres Strait Islander legal services, however,
are described by the Law Council of Australia as the most underfunded of all legal service
providers23. Despite the wide range of legal issues faced by Aboriginal and Torres Strait
Islander people, Indigenous legal services have not been funded sufficiently to provide
family and civil law practices24.

Women’s greatest legal needs are in the areas of family and civil law, as reflected in Legal
Aid Queensland figures25. These, however, are the areas where there is most unmet need.
Justice and Human Rights P a g e | 3 Q C O S S P o l i c y P o s i t i o n – N o v e m b e r 2 0 0 9 As a result, women are less likely to have their legal aid applications granted than men, at
70.99% compared to 81.38%26.

Older people may be dependent on a family member, friend or carer to facilitate access to a
solicitor for matters such as wills or powers of attorney, leaving them vulnerable to abuse.
Although legal services for seniors have been established, they are limited and are only able
to assist clients who are capable of providing instructions27.

People with disabilities or cognitive impairment may face a range of barriers to accessing
legal services, including, but not limited to, physical access, limited access to Auslan
interpreters, lack of understanding of the legal aspects of their situation, communication
difficulties, reliance on others to access lawyers, fear of retribution, and discriminatory
attitudes towards people with a disability28,29.
Recognising Progress QCOSS acknowledges State and Federal Government actions towards improving access to
justice and the protection of human rights, including:
 The National Human Rights Consultation which recommended that a National Human
Rights Act be adopted

Progress on implementing the new Queensland Civil and Administrative Tribunal, due to
commence on 1 December 2009
QCOSS Recommendations 1. Commence public consultation with a view to enacting a Queensland Human Rights Act and
creating a human rights framework to inform policy development and service delivery.
2. Further increase investment in Community Legal Services (CLCs) to improve access to
legal services – funding should incorporate competitive salary rates, a ‘distance loading’ to
improve access for clients in regional, rural and remote areas, and indexation.
3. Increase State Government funding to Legal Aid Queensland, to address declining revenue
from the Legal Practitioner Interest on Trust Accounts Fund, and improve access to
assistance in family and civil law.
4. Reduce barriers to accessing justice for disadvantaged Queenslanders – including
Aboriginal and Torres Strait Islander people, homeless people, young people, people from
culturally and linguistically diverse (CALD) backgrounds, people from rural and remote
areas, older people, and people with a disability – through improvement targets and funded
programs that address issues such as limited accessible solicitors, limited prioritising and
decision-making abilities, and low literacy and comprehension levels.
5. Deliver access to a state-wide translator and interpreter service for people from CALD
backgrounds consistent to all community and government service providers, and provide
programs and funding for sustained development and implementation of cultural
competency for government departments, legal services and other legal professionals.
6. Amend relevant legislation to introduce a statutory right to an interpreter in all criminal and
civil proceedings.
4 | P a g e Justice and Human Rights
Q C O S S P o l i c y P o s i t i o n – N o v e m b e r 2 0 0 9 1
Law Council of Australia. (2009). Submission to Senate Inquiry into Access to Justice. Retrieved September 28, 2009, from
https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=c74fcafb-a9c8-4c07-8770-3fc0b272856d.
Schetzer, L., and Henderson, J. (2003). Access to Justice and Legal Needs Stage 1 Public Consultations. Sydney: Law and
Justice Foundation, pp 2-3.
3
Senate Legal and Constitutional References Committee. (2004). Legal Aid and Access to Justice Commonwealth of Australia June
p 151
4
Legislative, Constitutional and Administrative Review Committee. (1998). The Preservation and Enhancement of Individuals’
Rights and Freedoms in Queensland: Should Queensland Adopt a Bill of Rights? Retrieved September 29, 2009, from
http://www.parliament.qld.gov.au/view/committees/documents/lcarc/reports/Bill%20of%20Rights%20report%20%20Report%20No%2012.pdf.
5
Legal Aid Queensland. (2009). Submission to the National Human Rights Consultation. Retrieved September 29, 2009, from
http://www.legalaid.qld.gov.au/NR/rdonlyres/A20B6F18-C98F-46B9-99E3816EAEDBF9B6/0/LAQ_submission_NationalHumanRightsConsultation.pdf.
6
Human Rights Law Resource Centre [HRLRC]. (n.d.). Case Studies: How a Human Rights Act can Promote Dignity and Address
Disadvantage. Retrieved September 29, 2009, from http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/casestudies/#top.
7
Queensland Public Interest Law Clearing House. (2009). Submission to the National Human Rights Consultation. Retrieved
September 29, 2009, from http://www.qpilch.org.au/_dbase_upl/HR%20Consultation%20sub.pdf.
8
HRLRC op cit.
9
Law Council of Australia 2009 op cit.
10
National Association of Community Legal Centres. (2009). Submission to Senate Inquiry into Access to Justice. Retrieved
September 29, 2009, from https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=0171c7a5-9ce5-4ceb-bec9e51a1b544f70.
11
Ibid
12
Queensland Association of Independent Legal Services. (2007). Annual Report 2006-07. Retrieved October 2008, from
http://www.qails.org.au/_dbase_upl/QAILS_AR_0607.pdf.
13
National Legal Aid. (2009). Submission to Senate Inquiry into Access to Justice. Retrieved September 29, 2009, from
https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=7eaa9f3a-5e2a-4da5-8711-0d29bf9fa3a0.
14
ibid
15
Law Council of Australia 2009, op cit.
16
National Legal Aid. (n.d.). Finance. Retrieved October 1, 2009, from http://www.nla.aust.net.au/category.php?id=9.
17
National Pro Bono Resource Centre. (2009). Submission to Senate Inquiry into Access to Justice. Retrieved September 29, 2009,
from https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=524b0fbc-6e38-4dfe-beda-590f2b0c62bb.
18
DLA Phillips Fox. (2009). Submission to Senate Inquiry into Access to Justice. Retrieved September 28, 2009, from
https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=fae67931-c2a4-448a-9dc8-0ab803c08780.
19
National Pro Bono Resource Centre 2009 op cit.
20
Based on advice given by the QPILCH Homeless Persons’ Legal Clinic
21
Human Rights Law Resource Centre. (2009). The Right to a Fair Hearing and Access to Justice: Australia’s Obligations.
Retrieved September 30, 2009, from http://www.hrlrc.org.au/files/hrlrc-submission-access-to-justice-inquiry.pdf..
22
McDougall, J., Overall, T. and Henley, P. (2008). Seen and Heard Revisited. Reform 92, 9-12.
23
Law Council of Australia 2009, op cit.
24
National Legal Aid 2009, op cit.
25
Legal Aid Queensland. (2006). Gender Equity Report 2006. Retrieved October 2, 2009, from
http://www.legalaid.qld.gov.au/Publications/Reports/Gender+Equity+Report/Gender+Equity+Report+2006.htm.
26
Ibid.
27
Office of the Public Advocate. (2007). Submission to the Standing Committee on Legal and Constitutional Affairs – Inquiry into
older people and the law. Retrieved October 2, 2009, from
http://www.justice.qld.gov.au/files/Guardianship/Inquiryintoolderpeopleandlaw.pdf.
28
Schetzer and Henderson 2003 op cit.
29
Law and Justice Foundation of NSW. (2009). Cognitive Impairment, Legal Need and Access to Justice. Justice Issues Paper 10.
Retrieved October 7, 2009, from
http://www.lawfoundation.net.au/ljf/site/articleIDs/2EDD47C8AEB2BB36CA25756F0018AFE0/$file/JI10_Cognitive_impairment.pdf.
2
Justice and Human Rights P a g e | 5 Q C O S S P o l i c y P o s i t i o n – N o v e m b e r 2 0 0 9 This paper is part of QCOSS’s ‘policy
platform’ that contains over 20 policy
papers.
Go to www.qcoss.org.au for other
papers including – Mental Health,
Violence Prevention, and Social
Inclusion.
Ground floor, 20 Pidgeon Close
(off Beesley St), West End Qld 4101
PO Box 3786, South Brisbane Qld 4101
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Website: www.qcoss.org.au
6 | P a g e Justice and Human Rights