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National Human Rights Online Consultation

Fr Frank Brennan's picture

Welcome to the National Human Rights Online Consultation.

Our National Human Rights Consultation Committee is charged by government with the task of ascertaining the views of the Australian community about which rights and responsibilities matter to us as a society, asking whether these rights and responsibilities are adequately protected and promoted in contemporary Australia and how they might be better protected and promoted. 

We have already received more than 13,000 submissions and people turn up in their hundreds to every community roundtable held in the capital cities and by the dozens in remote country outposts.

NHROC logoMany of the participants at our community roundtables are keen to affirm that Australia is one of the best countries in the world to live while, at the same time urging that we could do so much better in showing respect for the dignity of all people in Australia including those most marginalised. 

Some invoke household names like Cornelia Rau, Mohamed Haneef, Ahmed al Kateb and David Hicks, urging policy changes to the Northern Territory intervention and to long term immigration detention for asylum seekers arriving on boats without visas.  Others speak more personally of the plight of their aged relatives in stretched aged care facilities, their neighbours suffering acute disability or their acquaintance who is homeless.

They all want to be heard, respectfully.

One of the truly heartening aspects of the community consultations has been the respect shown to speakers who hold diametrically opposed views. Can lawyers or the law do more to protect the human rights of these people?  Or are their rights and entitlements best protected by more comprehensive social policy committed to social inclusion and more taxpayers funds being available for accountable, transparent service delivery?  Some of the strongest pleas at our community consultations have come from citizens disturbed by their forced medication for psychiatric conditions which they dispute.

I hope this online discussion forum will provide another respectful space for people in Australia to conduct a robust dialogue about how we can best protect human rights and promote responsibilities. 

Over the coming weeks, my fellow Committee members and I will be on the road conducting community roundtable sessions so please excuse us that we won't be able to reply to your comments and questions personally.

I am grateful to the legal academics who will assist us with providing reasoned occasional commentary on the discussion forum as we go.

The role of the Committee is to present YOUR views to government and we will be following the discussion with great interest.

Our community roundtables are happening until mid June, or, if you'd prefer to make a private submission, you can do so online at http://www.humanrightsconsultation.gov.au/ until 15 June 2009. The National Human Rights Online Consultation on Open Forum will run from Tuesday, 19 May until Friday, 26 June 2009, providing an extended opportunity for you to share your views. My fellow committee members and I will be considering your contributions made through Open Forum in preparing our official report to government. 

Please follow these links to go to the discussion pages for each of our 3 key consultation questions:

1st KEY CONSULTATION QUESTION: 2nd KEY CONSULTATION QUESTION: 3rd KEY CONSULTATION QUESTION:

Click on this link to go to our discussion page for:

To leave a comment you'll need to be registered and logged in. You can also refer to the Terms and Conditions of this site, or read the moderation guidelines, which have been established to ensure this is an online environment where everybody feels welcome.

Father Frank Brennan
Chair, National Human Rights Consultation Committee

__________________________________________________________

DISCLAIMER:

The comments published below represent a wide range of views and interests of the participating individuals and organisations. Statements made during online discussions are the personal opinions of the commentators and do not necessarily reflect those of the National Human Rights Consultation Committee or Open Forum.
 
Open Forum, on behalf of the Attorney-General's Department, at all times and at its absolute discretion, reserves the right to remove offensive comments from the National Human Rights Online Consultation. For your reference, any comments/messages that are offensive for the online consultation would include any or all of the following:

  • breach of privacy
  • defamatory content
  • profane content
  • risk of contempt of court
  • racial and religious hatred/vilification
  • confidentiality concerns

Comments

National Human Rights Online Consultation

Media release

A travesty of democracy

Fr Frank Brennan, a leading public relations figure for one of the wealthiest corporations in Australia, the Roman Catholic Church, an organisation infamous for, amongst other things, sexual, mental and physical abuse of children, refusal to grant equality to women, and ongoing vilification of same-sex-oriented people is heading a Federal Government consultation on Human Rights in Australia.

Twenty to fifty percent of the population have no or minimal beliefs in the supernatural but there is only small reference to the rights of those with no religion.

With no intention of demeaning the immense value brought to wider human rights issues by Frank Brennan the task before the committee on Human Rights in Australia is about equality under established law. Father Brennan cannot adjudicate with an impartial mind on matters conflicting with his faith.

The Atheist Foundation of Australia is appalled at the government decision to have such a biased and inflexible ideologically driven person on a committee making decisions for every Australian. This does not bode well for an outcome promising equality of human rights for all citizens.

The AFA calls for the immediate resignation of Father Frank Brennan, replaced by an impartial representative of the community not influenced by personal religious beliefs.

Media Contact:

David Nicholls
President
Atheist Foundation of Australia Inc
Private Mail Bag 6
MAITLAND SA 5573

Ph: (08) 8835 2269
Email:
info@atheistfoundation.org.au

In response to the Aetheist Foundation's release

I can appreciate what seem to be your underlying concerns about the seperation of church and state and the need for equal representation of the Australian community.

But good luck finding an alternative to Fr Frank Brennan who is "an impartial representative of the community not influenced by personal religious beliefs". You might find someone not influenced by religious beliefs, but we all have personal beliefs of some sort wrapped up in our worldview.

I myself am an aetheist, and as much as I may try, I cannot always "adjudicate with an impartial mind on matters conflicting with"my beliefs.

Yes I agree - faith and belief are different - you don't have to convince me...but my point is we all have a bias.

What makes somebody a good choice as Chair of a body such as The National Human Rights Committee is how transparent and open the process they oversee is.

The National Human Rights Consultation is not about collecting Fr Frank Brennan's views, it is about collectiing public views. This online discussion forum was created as another avenue for people to be able to do that in an independent public space. It's the third installment in the Australian Government's online consultation trial.

So let's move on from the man to the game.

What would be really interesting to know is: What do you think about the questions posed in this consultation about how Australia can better protect and promote human rights in the future?

Sally Rose

Blogger-in-Chief | Open Forum

National Human Rights Online Consultation

Sally Rose,

The AFA is not so much addressing the beliefs held by a person, although that should be taken into account. It is concerned with the intractable institutionalised beliefs the person represents. If the person happened to be an Imam, Rabbi, Latter Day Saint, Nazi or a leader from the Wicca tradition, would you still have confidence they would perform the job impartially. To do so can place them at odds with their particular dogma, peers and masters. And it is not only a matter of justice being done; justice must be seen to be done. Frank Brennan’s appointment places that equation in doubt.

I think I have adequately answered your last question. Before continuing with rational discourse, the premise has to be unassailable. In this instance, it is not.

David

Conflict of Interest?

The suggestion that a conflict of interest exists is an interesting one that may be worth considering.

I have as yet seen no signs of acting in a manner of conflicted interest thus far but that the church has opinions and positions on matters of human rights, especially in regards to blasphemy (as seperate from religious villification) and free speech, transgender issues (in direct conflict with scientific and medical evidence i might add), sexuality and much more many of which are in direct contrast with human rights its worth considering whether or not the positions of the church will effect any decisions made by a priest on these matters.

I am not currently going to ask that Frank Brennan step down. I would however like an assurance that he will consider his Ethical Obligation Of Duty to this task as superceding Personal and Catholic Morality (such as while he may consider for example Homosexuality as immoral by church law and for himself as objectively it is not unethical nor immoral to many other faiths and people he would not allow his own or church morality from interfering with for example decisions about the Yogyakarta Principles) and not allow any interferance in the performance of this duty from the church.

Everyone has an obligation not to impose their personal morality over others ethical choices and actions. That is something everyone must face. So that a religious judge could preside over an athiests prosecution and vice versa. There is a difference of course between a catholic in such a situation and a catholic priest in one as a priest is usually expected to be more obediant to and beholden to the church.

So it may be worth Frank Brennan's self-examination on the subject of personal bias and conflict of interest. And I hope to see a clear statement of assurance that he will not allow such to interfere with carrying out his Ethical duty, especially concerning the rights of Transgender, Gay, Lesbian and Bisexual people, Women, Children and any other group where the Church is at odds with Human Rights Principles.

Which I note usually stem from the Churchs emphasis of an assumed understanding of 'nature' versus the essential human rights principle of individual choice based on informed understood uncoerced consent and total ownership of the self.

support for the Atheist foundation's release

David is completely correct!

Perhaps the most bizarre and inappropriate political appointment this century, is the selection of Fr Frank Brennan to the position of Convenor of the HREOC inquiry into Human Rights and an Australian Bill of Rights.

No one can serve two masters, and Frank Brennan’s duty as a Roman Catholic priest is to support the doctrines and edicts of his employer; a gigantic multinational corporation with its finger in virtually every financial pie; from banking to casinos. This undemocratic conglomerate, ruled by an appointed dictator, also seeks to enforce on all citizens, rules and regulations that are the result of opportunistic political and financial decisions made at intervals throughout it’s 1500 year struggle to maintain power in Europe and the rest of the world.

Currently, this religious, financial and political colossus that has unresolved issues regarding the sexual and physical abuse of defenceless children and young adults by its priesthood, insists that:

1. Terminally ill people have not the right to decide for themselves when they want to die,

2. No woman has the right to terminate a pregnancy in any circumstances.

3. No woman may hold a position of authority over men within the religious arm of the organisation.

4. Women are subservient to men in a marriage.

5. Couples have not the right to use contraception during sexual activity. [The sole purpose for sexual activity being to produce children.]

6. The sole legal definition of marriage is that between a man and a woman, and there must be no legal recognition of any other type of relationship.

7. Once married, a couple may not divorce.

8. The only valid sexual orientation is heterosexual. All other sexual permutations are to be pitied but denied physical expression of any sort.

With a Roman Catholic priest in charge of this debate there can be no hope of Australia entering an age of enlightenment, fairness and human rights for all. If he supports rights that are opposed by his masters he will be excommunicated; if he opposes these rights, he will be acclaimed by the leaders of the various faiths that exert undue influence over Australian politicians, as the saviour of the status quo. He must go, or it will be just another whitewash.

Trev Adams I'm sorry to tell

Trev Adams

I'm sorry to tell you that in most households in Australia the man is the head. This has worked extremely well for many years until the feminazis took over the minds of some women. Have a look at Australia now, it is in perpetual chaos. There are many couples who have no idea of headship and as a result we have broken homes, chidren used as pawns in court and a complete breakdown of discipline in the home. You may think this is beaut but any thinking person has to be dismayed at the rate of abortion, depression and brokenness evident in Australia today at which the femmos can be justly proud.

Your arguing against womens equality???

Seriously?

As if there were no abortions before feminism! Of course there were! Only they were done illegally with high fatality rates. And plenty of that still happens in nations without legal abortion. As if there were not broken homes and abused children before feminism.

In the past there was plenty of men abandoning their families. Women forced into prostitution because they could not work legally. Daughters left penniless without inheritance rights. Much more domestic violence and abuse of women.

If you think womens rights are such a problem you could always emigrate to a country without them like parts of Afghanistan, like Pakistan, like Saudi Arabia, like Iran.. places where the man rules, where women are property, wives can be beaten, where in many countrues acid is thrown in the face of rape victims for bringing shame on their families, places where male adulterers get no punishment but women are stoned to death and places where women are raped as court-ordered punishment for male relatives crimes!... In Jordan for example women fleeing abusive husbands are arrested and live in prison for their own protection while the husbands remain free at large. Until of course the people in those countries who desire fairness and decency claim their rights, as we are seeing them fighting for now in Iran. In a process where women are involved more than the past.

Do you seriously think returning to the racist past is a good idea? Or do you fail to acknowledge all the many problems women and families endured in the past and still do in those countries the 'femminazis' as you call them haven't had much effect on yet? Are those countries paradises of domestic bliss? No, they are not. They are places of abuse.

Australia still has an atrocious level of domestic violence (including against men though it's less often fatal or seriosly injuring that is a serious problem) rape (again men are too often silent unreported victims as well but still the majority of victims are women and children), the pay rates and advancement of Australian women seriously unequal compared to other countries. You think these problems are caused by women not being quietly obedient to their husbands? Strange then that other countries do better than us on these issues without male-dominance of the household!

And as Australia was the second country in the world to give women the vote, and by referendum of the white voting male public at that, not only does that make your comment ignorant and sexist but downright un-Australian also!

But as I believe in free speech I'm glad you made that comment. As I'm using my currently-unprotected free speech to show that you are sexist and un-Australian. Your comment proves that even for womens most basic rights despite Australias progress and past leadership that protection for those rights is still needed.

Thanks for providing an object lesson in the need for human rights protections.

Oh and did you notice that the companies that lost less in the global economic crisis had more women in management... if anything that evidence suggests that if one sex should be head of the household then your arguing for the wrong side. But if you don't like the idea of your wife, if you have one, having a say and veto over everything you do, if you like the idea of not being a slave and being able to make your own choices and having a fair say in a marriage or relationship then maybe that whole equality thing might be worth arguing for don't you think?

impartial representative

it's not about believing in a God .... it's about helping people ... especially the indigenous population which Frank appears to be doing with gusto ... i don't believe in God per se, but I am happy to be represented by Frank because he cares about people and he is an advocate for change and he will be bound by the changes foretold in the Bible ... which I have seen already ... here comes the judge brother

impartial representative

Gringo,

The belief in a god, little green men or fairies at the bottom of the garden is not the point. The Atheist Foundation of Australia Inc, Atheists in general, and I, have no problems with whatever others believe. Where our concerns come into play is when those beliefs impinge or have the potential to impinge on the wider society.

The key word here is ‘belief'. This means an opinion is formed not by empirical evidence but by some form of guessing. To clarify as to why the AFA applies wariness to ‘beliefs' is that historically there have been 34,000 religions formed this way. The obvious question is why we should place trust in any one of these un-evidenced ‘beliefs'. Each one of the adherents of this multitude of beliefs considers they have the correct one and all others are wrong.

This mindset does not mean as individuals, ‘believers' in any one of these religions are bad people. But the beliefs they hold should be a private matter between consenting adults and not imposed on others.

When the leader of a committee working for all Australians not only fervently holds one of these belief systems to be true and is bound by the authority of an inflexible hierarchical system concerning them, then the ensuing bias is inevitable.

The biases are significant and pertinent to this inquiry. Many contributors to this Forum have enunciated them.

Whether or not these biases will affect the outcome of this inquiry is in question but what is not, is that they might.

On these grounds, Frank Brennan should voluntarily step down or the government must replace him.

David

National Human Rights Online Consultation.

Sally Rose,

The AFA is not so much addressing the beliefs held by a person. It is concerned with the intractable institutionalised beliefs the person represents. If the person happened to be an Imam, Rabbi, Latter Day Saint, Nazi or a leader from the Wicca tradition, would you still have confidence they would perform the job impartially. To do so can place them at odd with their peers and masters. And it is not only a matter of justice being done; justice must be seen to be done. Frank Brennan’s appointment places that equation in doubt.

I think I have adequately answered your last question.

David

Grief

Given the outpouring of grief exhibited by the victims of Catholic care in Ireland this week, I believe that it is now extremely obvious that there has always been a culture of abuse in that organisation throughout the world. Therefore to appoint one of these people to head an investigation into human rights in Australia is abuse in itself, in my opinion.

Dear Grace, Clovis & David

Let me just reiterate this, everybody is welcome to post their views about human rights in Australia on this forum. A flaw of public consultations in general, no matter what they're about or who's on the committee is that they can only represent the views of those who take part. If you are concerned about the public consultation being coloured by the views of one person, and an organisation they belong to then what better way to prevent that than to contribute your views on an independent website where they will be displayed in full view for the public record?

Sally Rose

Dear Sally,Given that the

Dear Sally,

Given that the following is openly stated above about this site "Open Forum" -

"My fellow committee members and I will be considering your contributions made through Open Forum in preparing our official report to government."

One wonders why, in light of your answer, that this seems just an empty statement to make things look like you will be reading and considering the comments here for your official report. It seems to me that this Open Forum is displayed in full view for the public record is it not? Am i not taking part? I would imagine printing out these comments and putting them in your 'official' file for government is perhaps not too difficult a task for one such as you?

Nevertheless, I will make a submission as well, just in case you have some difficulty with your printer.

Surely human rights are not a subject that any member of the Catholic Church is in any way well informed enough about given the exposure of their abject history and their lack of remorse regarding the serial abuse of children all around the world by their members! To place one of these members into a position of power to decide on human rights for Australia is frankly a joke, and not a funny one at that.

Grace

Hi Grace

Hi Grace

Reading your comment I feel I should clear up who's who.

Open Forum is an independent, non-profit organisation which is providing the web platform for this online discussion forum for the National Human Rights Consultation.

Above, you quote Frank and confuse that with a statement from Open Forum. All bloggers and commentators on this site speak for themselves.

The comments people leave on the National Human Rights Online Consultation discussion forum will be considered by the National Human Rights Consultation Committee along with the views they hear at their in person community roundtable sesssions and in the private submissions they recieve through their own website.

Sally Rose

srose@openforum.com.au

National Human Rights Online Consultation

Sally Rose,

The Atheist Foundation of Australia Inc has expressed its concerns and comments in a Submission to the National Human Rights Consultation.

Here - Submission to the National Human Rights Consultation (14 April 2009)

However, that does not address a primary unease expressed in the above Media Release.

May I suggest as a technical observation that this site would attract more comment if it were not so slow and unresponsive?

David

Frank Brennan.

Thank you Sally for your response, however it does not allay my concerns. If you watched "Yes Minister" you will remember that whevever the government wants to give the appearance of doing something while doing nothing, they appoint a Royal Commission. In the case of Human Rights Legislation, this government has opted to place someone in charge whose credentials are so absurdly inadequate, that any recommendations that flow will, in the words of Macbeth be full of sound and fury, signifying nothing.

Furthermore, this site is so slow that most peole will give up before they get to post anything.

the christian right is

the christian right is currently being urged to swamp this site with the one message ' no to charter of human rights, they much prefer to lobby and blackmail elected reps rather than have an impartial judical system overseeing a bill of rights.

Can you show a referance for that?

I'd like to see a referance for that. To see what exactly is being said and the reasons why and their arguments.

Of course it means they won't have their own rights protected. Though often those with advantage in an unjust situation dont see a need for a system that levels the playing field.

Maybe they don't see how their own rights would be protected or that one day they would need it? Or feel that it is more important to prevent equality and fairness?

Just speculating of course. They'll have to get involved so we can see their reasons why. And I'm sure that there are a variety of views in every group of people.

Still I do wonder at the motivations and reasoning of those arguing against a fair go for all Australians. Arguments about how to best get a fair go for everyone I understand, we dont want some people to be missed out on and get a raw deal. But objecting to those getting a raw deal now getting a fair go?

Apologies

Dear Sally,

My apologies, I think I've confused myself totally as to who's who, although I think I managed to get my point across in amongst the confusion, so enough said here.

Thanks for your help.

Grace

No Worries Grace

No worries at all Grace.

Thanks

Sally Rose

Catholic vilification - your right to be so wrong

 

OK, you don't like the Church, you think Fr Brennan is unable to take a public personna independent of his clerical status, just like he can't distinguish between his personal opinion and his 'legal' opinions. Yes, all lawyers are 'happy' to defend crooks.

When you can display some real understanding of what the Church is, and stands for and how it has developed the very freedoms we are supposed to be discussing, just let us know, but, your vilification of Fr Brennan and the Catholic Church is, under Victorian Law, a breach of the Vilification provisions and you could be brought before VCAT to answer why your right to freedom of expression shouldn't be prosecuted by Victorian 'rights' legislation. The irony of this is laughable.

1st KEY CONSULTATION QUESTION:

Any society that can rationalise a right to abort children for the sake of convenience/ 'reproductive rights', or authorise human experimentation etc is unlikely to define anything of real worth beyond the 1948 UN convention.


2nd KEY CONSULTATION QUESTION:

A number of free speech rights and conventions are under threat by 'new' rights for minority groups. There is a genuine distinction between admonishing a lifestyle and belief and actually persecuting someone or doing something due to the race of a person. If I don't like something, I should be able to say so and choose not to support it, or allow my personal goods to be exploited by it.

If I don't like someone's behaviour, the issue becomes a bit more complex, however, the situation then becomes a case of the actions of both parties and the context of the situation and any laws that might apply.

The promotion of 'responsibilities' is not clearly identified in many areas. Legal recourse is also subject to such inconsistency as to make any further reliance on the Courts (in the absence of serious reform) would be devastating.

3rd KEY CONSULTATION QUESTION:

By getting back to basics and not creating new categories of 'victims' who make lifestyle choices contrary to societal norms of old. If someone decides to live beyond these norms, then we should leave them alone, however, we shouldn't be forced to validate their decisions and practices.

A BILL OF RIGHTS

One person's legislated human right is often the cause of another's breach.

As poor as our judicial system is and can be, ultimately an administrative or legal wrong can be righted by Parliament if the Courts fail and the community sets it mind to it. Leaving the Courts to decide, rather than assess such important matters, is an abdication of civic duty both by politicians and the public themselves.

EDUCATION

Many people do not engage with the politico-legal structures of our Nation as they tend to be ignorant, apathetic (or both) and generally can exist without their life being significantly disrupted by 'abuse.' Others refuse to engage as they see current processes as beyond influence and rational discourse.

The media - an essential arm in the defence of rights -is often to blame for the dumbing down and/or bias in public discourse. Too many times the search for an 'angle' sees the truth sacrificed forentertainment.

 

examination of your points

Firstly, there is no villification in a statement of fact in context, though there is in exaggeration or excessive generalisation. Nor is there villification in stating that there may be a conflict of interest for a priest when the catholic church has pronouncements on these issues. Note i say 'may be'. Conflicts of Interest are well explored notions. Because the organisation one belongs to includes religious beliefs does not magically make a potential conflict of interest vanish. I hope Father Brennan examines himself for conflicts of interest and seperates his Ethical Duty to this process and Human Rights for all faiths from his Personal Morality as wellas Catholic Doctrine. If he cannot he should excuse himself. I hope however he can.

"Any society that can rationalise a right to abort children for the sake of convenience/ 'reproductive rights', or authorise human experimentation etc is unlikely to define anything of real worth beyond the 1948 UN convention. "

Imposing forced childbirth on someone however is a human rights abuse, just like imposing any medical or biological experience. A person has full ownership of their own body. Thankfully for those who consider their are rights of the unborn you may be pleased to know that it may be soon medically viable to transplant the unborn into the wombs of other women or the abdominal cavaties of men. This will be dangerous and involve risking the life of the recipient but will mean that rather than an abortion so long as there are volunteers a transplant can be done instead. Will you be one of the first volunteers?

On the other hand would you be happy were the state to without any consent or warning force you to undergo such a transplant and prevent you from removing it? Unless you answer yes then you are in favour of the right to control of the self which till other medical options exists (transplants as well as artifical wombs all being explored for saving endangered species at the moment) includes abortion.

"A number of free speech rights and conventions are under threat by 'new' rights for minority groups."

What 'new' rights?

"There is a genuine distinction between admonishing a lifestyle and belief and actually persecuting someone or doing something due to the race of a person."

The right not to be discriminated against does not exist just for 'immutable' characteristics like skin colour but also choice like religion. That science shows biological variation in the brains of Homosexuals and Transexuals however puts them in the same catagory as race but nevertheless rights are always about freedom and choice. So Religion and other areas of choice logically must be protected!

"If I don't like something, I should be able to say so and choose not to support it,or allow my personal goods to be exploited by it."

Yes, provided you do not villify or discriminate. Your personal choices may be how you wish, but just like a policeman must arrest all criminals not choose who they like to arrest and who they do not want to arrest so to is every shopkeeper, employer and service provider, even taxpayer, obligated to treat all people equally regardless of their personal choices and feellings about them. Including redressing existing inequality.

"If I don't like someone's behaviour, the issue becomes a bit more complex, however, the situation then becomes a case of the actions of both parties and the context of the situation and any laws that might apply."

How so?

"3rd KEY CONSULTATION QUESTION:

By getting back to basics and not creating new categories of 'victims' who make lifestyle choices contrary to societal norms of old. If someone decides to live beyond these norms, then we should leave them alone, however, we shouldn't be forced to validate their decisions and practices."

So we should return to the old practices of respecting Transgender people, same-sex relationships etc which have existed since ancient times throughout the cultures of the wolrd including in Australias, Australiasias and Polynesias Indiginous Cultures then. Hmm your point seems invalidated by history and anthropology. The 'societal norms of old' you speak of are 'societal news' in much of the world including Australia. Your point is refuted. As for validation.. we are all obliged to treat everyone as equals with equal rights and opportunities and that defines your obligation to validate their decisions and practices I'm afraid.

Your freedom of association means you dont have to have Gay and Transgender friends, your freedom of religion means you don't have to have them in your church if that is that church's teaching but you do have to treat them as equals in all matters, serve them and employ in your bussiness and respect them the way you want to be respected.

"A BILL OF RIGHTS

One person's legislated human right is often the cause of another's breach."

Examples?

"As poor as our judicial system is and can be, ultimately an administrative or legal wrong can be righted by Parliament if the Courts fail and the community sets it mind to it. Leaving the Courts to decide, rather than assess such important matters, is an abdication of civic duty both by politicians and the public themselves."

Yes, the key flaw of majoritanism is that unpopular minorities can and do face a myriad of injustice with no recourse because bias can be common. That has always been one of the reasons human rights protections are needed. And they are needed.

"EDUCATION

Many people do not engage with the politico-legal structures of our Nation as they tend to be ignorant, apathetic (or both) and generally can exist without their life being significantly disrupted by 'abuse.'"

Yes, so the needs of the majority are met but minorities issues get ignored, sometimes the wants of the majority come at the expense of the needs of the minority. Hence the need for Rights Protections.

"The media - an essential arm in the defence of rights -is often to blame for the dumbing down and/or bias in public discourse. Too many times the search for an 'angle' sees the truth sacrificed forentertainment."

Very true!

Frank Brennan - Support for AFA Position

Atheist Nexus is an international website with over 8000 members. There are currently 177 Australian members on the site. The Australian members of Atheist Nexus wish to voice our support for the Atheist Foundation of Australia’s recent media release concerning the appointment of Father Frank Brennan as Chairman of the National Human Rights Consultation Committee. The following is extracted from the Atheist Nexus Australian members’ submission to the HREOC’s “Freedom of Religion and Belief” inquiry:

"Father Frank Brennan is a distinguished Australian with an excellent reputation for defending human rights. We have no objection whatsoever to Father Brennan being appointed to the Human Rights Consultation Panel which has been entrusted with investigating the adoption of an Australian Charter of Rights. However, we believe strongly that the only way for a Charter of Rights to represent the interests of all Australians is for it to be strictly secular. With no disrespect to Father Brennan personally, we think it is highly inappropriate to place a Jesuit priest in charge of the consultation process. This ignores the sensibilities of non-Christian and non-religious Australians and raises concerns that our human rights will be filtered through a Christian world-view. This is entirely unacceptable.”

National Human Rights Online Consultation

Freedom to assent,

How very interesting you think (Wish) that the AFA should be subjected to Victorian vilification laws. If this were to be true, it would be a sign that the political system has slipped too far into one governed by theocratic rule.

It is the very notions contained in your post, evasively written, as they are, which prompted the Atheist Foundation of Australia Inc to make a submission to the Consultation Committee. The arrogance in your words speaks of control of the lives of other people at the behest of your religious beliefs, although that was not stated. A little honesty on that point would not go astray. Correct me if I am wrong.

Your post is a quintessential example of the bias mentioned in the Atheist Foundation of Australia Inc Media Release. I am sure that astute and honest readers of this Forum have not missed that.

David

Comment removed

This comment has been removed from display at the request of the author on 22 October 2009. The original comment was presented to the National Human Rights Consultation Committee.

Fr Frank Brennan's picture

Absolute rights and necessary limitations

It is great to see so many people participating in our online forum. I would just like to mention a couple of things. First, the terms of reference that have been prepared for the Consultation say that the role of the Committee which I chair is to conduct community consultation about human rights in Australia, and report on the issues raised through this consultation to the Government. In other words, our job is not to report our personal views on human rights in Australia, but to report the people of Australia's views. Secondly, I would just point out that there are currently four other members of the Committee.

The discussion on this page relating to free speech interests me greatly. Do you think that all human rights are absolute, or should some rights be subject to limitations? For example, to what extent should free speech be limited?

Father Frank Brennan
Chair,
National Human Rights Consultation Committee

Equal Absolutes define mutual borders

I think Rights create natural borders between each other.

Example: My right to do whatever I like might include punching, stabbing or sexual acts but people have the right to decide what occurs to their own body.. I cannot use my right on other peoples bodies without their consent!

I cannot punch someone within my rights unless they give fully informed uncoerced consent.. like in a boxing ring! Where people consent to punch one another regularly. With defined rules all parties consent to. If however I walk up behind someone and punch them in the back of the head with the same punch it is assult. Because it is violating their right to only be punched, or touched, with consent.

I cannot withing my rights stab someone without their consent either. Something they are unlikely to do with fully indormed free uncoerced consent either... unless I am a surgeon stabbing out their tumour for example!

The same occurs for sexual acts where, if involving another being, requires fully informed uncoerced consent. A child or animal can never give that consent. But a same-sex adult partner can every bit as much as an opposite adult sex partner. There are even ways BDSM practices can be uncoercedly given informed consent to. The rightness of these things is the informed uncoerced consent. Without that consent it is rape. If the consent is coerced it is rape, if it cannot be informed consent as is the case with a child or animal or drunk person etc then it is rape.

The border of the rights of others over their own bodies defines what is right and wrong for my acts.

Now on rare occassions we assume consent.. very rarely.. such as emergency medical treatment. And there are ways, through medic-alert bracelets, living wills and medical tattoos that people can leave piror instructions as to what they do not consent to regarding that. So those with religious objections to receiving blood transfusions can ensure they do not get them.

When it comes to free speech ideas can generally be discussed quite freelly without interfering with peoples rights.

The exceptions involve intentionally harming a person with false claims. Slander/Vilification. Which interferes with a persons right to fair representation in public as well as due process.

Or breaching their right to Privacy by disclosing confidential information not in the publics interest (ie not comitting any crime or having an undisclosed conflict of interst, the private life of celebrities may be interesting to the public but thats not what that term means).

Or statements of Abuse. Verbal harassment and the like intended to harm people. This covers teasing and bullying but does not restrain people from releasing facts or discussing ideas or beliefs that others do not like.

A non-christian wearing an inverted cross or pentagram or with a shirt with an atheist quote written on it is not being abusive, people can look away, it is simply expressing an alternative viewpoint.

One walking up to a church parishoner leaving a church and swearing at them in a loud voice calling them rude names is because they are specifically being verbally abusive to someone.

One having a quiet calm discussion about the arguments for and against christianity with a christian where both freely consents to the conversation and can withdraw from it at any time is definately not.

Someone giving a public speech that says that christians are evil and christians should be killed or not employed is, that's discrimination.

Someone giving a speech saying that some christian tenants have been involved in acts of harm historically such as the Crusades or Spanish Inquisition is not.

There is a line between each of these. A line determined by the rights of others. People don't have a right to not be offended by others self-expression of style, beliefs, opinions etc but they do have a right not to be abused verbally or discriminated against. An Athiest can disagree with Christian beliefs without being rude or nasty about it.

Now if we replace either the Atheist or the Christian with a Homosexual or a Muslim or a Goth or any other variable we see again that the same principles define all these things.

The free exchange of ideas is not unduly interferred with by the need to respect the rights of others.

Each Right extends till it meets the equal right of another. Definining a mutual border between them.

Frank Brennan

Frank Brennan [who despite his Fr. appellation is no one’s father – certainly not mine] seems to be a fine fellow, but if the church he serves was equally as fine we would have Cardinal Brennan and Fr Pell. The fact that we haven’t speaks volumes.

The terms of reference ask the committee to report on the issues. There is no certainty that there will not be a selection process applied to what is reported. How can we be sure all the issues will be reported whether or not they accord with the chairman’s religious duty? If, as Mr. Brennan suggests, the function of the chairman and the other committee members is merely secretarial, then there is no need to appoint such high profile people to the job. Any competent secretary, or an internet survey would be more efficient, cheaper and as useful. I am perfectly happy with Philip Flood, Mary Kostakidis, Mick Palmer and Tammy Williams... and had one of them been appointed chairperson I would not be suspicious. The abysmal failures of the Roman Catholic church in human rights is well documented, therefore the appointment of Mr. Brennan is either a deliberate insult to the majority of Australians who do not share his belief in an invisible superman, or egregious stupidity.

As for human rights – of course they aren’t absolute. Always they come with modifying responsibilities, the most obvious of which is the respecting of other’s rights. Life is a compromise, and so are rights and laws. The challenge is to make them as fair and equable as possible across the entire human race.

Freedom of speech is no different. Incitement to violence being but one obvious activity to restrict.

National Human Rights Online Consultation

The web site is now working at a satisfactory speed. Thanks

Frank Brennan is a lawyer. He would understand that a pertinent point in the selection process of juries in a case where racial difference is involved in an alleged crime, that racially prejudiced potential jurors are weeded out. The reason is obvious.

It is just as obvious in this case even with a bit of guessing. Only 10 percent of people actually go to church. From that demographic will arise the bulk of all suggestions going to the Committee and they will be to uphold what are perceived to be, Christian ‘values’. These might include the hope of tightening loopholes or be a framework for; the restriction of abortion - allowing religious institutions to continue to discriminate on religious and sexual orientation grounds – maintaining religious indoctrination in state schools, keep the Churches financially unaccountable, preventing voluntary euthanasia etc.

A lesser number of suggestions, even though they represent the vast majority by all surveys, (Which everyone knows) will be more intent on liberalising the before using the principle of equal rights for all regardless of race, religion, no-religion, gender or sexual orientation.

The committee, if it is biased, can report to the government that a majority of the suggestions to which they have had access are or are not in favour of any given proposition. The small number of suggestion with the known backing of the vast majority might be sidelined. Shades of argumentum ad populum,

Now, I am not saying Frank Brennan or the Committee would do this, but they might! Or, the Government could use the supplied ‘accurate’ figures in the same way. The manner in which this particular system is set up is open to abuse.

It is my opinion that a Bill of Rights would be disastrous for the hold religion has on society. The Churches much prefer the system where they can influence politicians to do their bidding, against the wishes of the majority of the population than actually placing some of the aforesaid anomalies before arbitration methods that would be fair and equitable to everyone.

It is that politicians have demonstrated continually that they will work against commonsense and the interests of the electors, which make a Bill of Rights essential.

The AFA Media Release stands.

David

The Christian Minority

The Australian members of Atheist Nexus share the AFA's concern about Christian lobbyists hijacking this public consultation process. We are aware that Jim Wallace of the Australian Christian Lobby is busy rallying his troops to try to derail the proposed Charter of Rights. Here is a copy of an email being sent to members of the ACL:

"Dear ACL Supporter

Today we are launching one of our most important campaigns ever, and hope we can get your support to promote it with all your Christian friends.

No one is as concerned for human rights as the Church, but the push for a charter or bill of rights threatens some of the most basic freedoms Christians and the wider Australian community take for granted and is also not the best way to protect rights.

A charter or bill of rights will give unelected judges unprecedented power over moral and social policy, allowing minority interest groups to achieve agendas that they cannot win at the ballot box.

We are already seeing the right of churches and church schools to discriminate in employment being reviewed in Victoria after the passage of their charter of rights. The inability to discriminate in favour of Christians in employment would obviously threaten the ability of these organisations to work out Christ’s purpose for them.

Judges could overrule laws that define marriage as between a man and a woman, as they have done under Canada’s charter, or even declare pornography free speech, as they have in the US!

Charters or bills of rights have also not proven to be guarantors of human rights in other countries. For example, the United Kingdom has anti-terror laws far more draconian than Australia, and it still places children in immigration detention - something Australians remedied at the ballot box without a charter of rights.

It is vital that we take action now. Please go to our Make a Stand campaign where there are instructions on how to send a submission to the Government’s consultation process. We also have a petition to the Senate which you can sign online. On this site you’ll find all the information you need to make up a submission, which need not be long, but must be in before 15th June.

I have also recorded two video messages – a 3 1/2 Minute version and a shorter 2 Minute version – Please ask your church leader if he or she would consider playing either of them in your church to help people understand the importance of this issue and the need to activate on it. You might find the longer version more helpful if the church is not very informed about the issue.

Please forward this e-mail to all your friends and ask them to visit Make a Stand. It is essential to have every Christian active on this if we are to win it.

Thanks for your help.
God bless

Jim Wallace AM
Managing Director"

Notice that Mr Wallace's concerns are not to protect human rights, but to limit the 'agendas' of minorities. We can only assume he means non-Christians and the non-religious which as a group, outnumber practicing Christians substantially. In fact, it is Wallace who represents the minority view - the vast majority of Australians do not attend church, the majority of Australians support abortion and euthanasia, and at least as many Australians support gay marriage as oppose it.

Wallace isn't arguing for human rights - he's arguing for Christians to have the right to discriminate in ways that are illegal for the average Australian. He is also arguing for GLBTI people to be denied the same right to civil unions as other Australians - despite the fact that every shred of credible scientific evidence shows that sexual identity is not a choice and cannot be changed.

As for pornography, nobody is suggesting that Wallace and his supporters be forced to watch it, and there are plenty of internet filters available for those who fear they may encounter it 'unexpectedly' on the internet. Again, he is seeking to impose his particular set of 'Christian values' on those who do not share them. This isn't about protecting human rights - it's about denying people the right to watch or read what they like in the privacy of their own home, or as voluntary members of a cinema audience. Frankly, it is none of Wallace's business what people watch or see for entertainment, as long as he has the option not to participate.

Jim Wallace and the ACL are trying to hijack this inquiry. Further, despite his own very laudable qualities, Fr Brennan, the head of this inquiry is a member of an institution which: discriminates against women and homosexuals; denies its priests the right to normal, intimate relationships (which, in some cases leads to hebephilia and child abuse; seeks to deny women (and even girls!) dominion over their own bodies in the case of unwanted pregnancies; entrenches poverty and overpopulation by condemning the pill; and spreads misinformation about condoms in AIDS torn countries. It is hardly a scenario that fills us with confidence that our views will be well represented.

I would like to think that Fr Brennan disagrees with his church on these issues but, if so, why does he continue to act as their representative?

Again, we stress that, with no disrespect to Fr Brennan personally, the combination of the ACL trying to con the inquiry into believing their narrow views are 'typical' of the average Australian, and Fr Brennan's association with an institution that is infamous for its human rights abuses, cause us great concern about the outcome of this process.

Rights, Innate Traits and Choice

Just one point.

It matters not one iota when it comes to human rights whether something is an innate trait like skin colouration or a choice like religion.

Indeed evidence does suggest that homosexuality is an innate trait, but were it a choice it would still be a persons right to choose without being discriminated against or denied equal rights for that.

As for Transgender... well thats even worse as Australian scientists have discovered a gene is more common amongst Transsexuals than Cisgender (ie non-transgender) people.

That makes the policies of denying proper recognition and equality for Transgender people and much of what recognition they do get being dependant on being medically sterilised technically Genocide.

Yes, as shocking as that is to imagine, a policy in Australia is coercively forcing sterilisation of Transsexual people denying them their reproductive rights which is resulting in Genocide! The states interferance in the prevalance of an inherited genetic trait within the population.

And the unethical surgeries performed on Intersex Infants I've already discussed.

And if we consider human rights only count regarding innate born characteristics religion would lose it's human rights protection but Homosexuality and Transgender would keep theirs! However much of human rights, most in fact, are about a persons freedom to choose without coercion. Including religion or lack thereof.

This Is A Test Comment

This is a TEST Comment Salman Khan Salman Khan http://www.google.com/

This forum

I'm quite sure this online forum was created with all the right intentions, but unfortunately this site is a poor tool for this conversation to take place. Many of us want to take part in political processes like this, but we don't have time to write formal submissions or attend the community round table meetings (even if they come close to the places we live). All this site does is add weight to the argument that all an online consultantation does is provide a venue for the nutcases. There are better ways of doing this online, really.

How to do it better?

Hi Maenouli

Thank you for your feedback. I'm really proud to be working on this forum, but that's not to say I'm not aware of its limitations. The National Human Rights Online Consultation is part of the Australian Government's online consultation trial, so it's right that it be critically analysed and understood as a learning process.

You say "There are better ways of doing this online, really", please give us some more details, if you have specific suggestions it would be great to hear them.

This online fourm, whilst not perfect, is a stepping stone in the right direction towards improved public consultation methodologies.

I do think you're being a bit rough referring to participants as "nutcases", personally I've been impressed by the overwhelming display of good manners and basic respect shown between people who disagree with one another.

However, an important concern I do take on board from your comment is that you feel certain individuals or causes are over-represented, which is of course true. It's something I am always conscious of. There are two main ways we are combating this problem; getting as many different stakeholders as possible involved, and not making sloppy generalisations about the general population based on the results.

It is a challenge though. The biggest challenge stems from the fact that some people jump at the chance to participate whilst others refuse.

There have been a couple of comments on this forum that the views expressed are unrepresentative, and what I find incredibly frustrating is that in all cases where somebody has made that criticism it has been the extent of their participation. It seems obvious to me that if you feel your views aren't being represented the best remedy would be to record them yourself.

As you say, there are many people who want to take in politcal processes such as the National Human Rights Consultation but, "don't have time to write formal submissions or attend the community round table meetings (even if they come close to the places we live)." One of the main goals of this online forum was to encourage participation in the consultation process from those exact same people.

So I am 100% serious when I say I welcome your ideas about how to improve the process.

Best Regards

Sally Rose

srose@openforum.com.au

CONCERNS ABOUT THE SETUP AND PROCESS

General concerns about the Australian Human Rights Consultation Committee.

I write this as a psychologist with a deep concern for people's well-being and a strong belief that the way we treat people must be in accord with valid research in medicine and science.

I also write this as an Australian living overseas who is concerned about the image which Australia is displaying to other countries.

Appointment of Fr. Frank Brennan

In view of his legal skills and previous work in the human rights area, there seems little doubt that Fr. Brennan is an excellent appointee to the committee. On the other hand, his appointment as Chair of this committee is grossly inappropriate and politically insensitive.

Brennan is currently in the employ of an institution which has a long and appalling history of human rights abuses, right up to the present day. It advocates beliefs and practices which have resulted, and continue to result, in a great deal of human misery, psychological disturbance, physical anguish and tortured death. It is intolerant of views other than its own and ironically proud of that fact. It has put the lives and mental health of its victims behind its own survival instincts by excusing, and even promoting, its worst perpetrators.

As an employee of the Catholic Church, Brennan is obliged to uphold and champion the dogmatic views of this employer, even when they are at odds with the moral and ethical views of the average Australian, let alone those who are well-educated and informed in the medical and social sciences.

  • Brennan's employer continues to insist on behavior and values which, in the light of reputable research in the social and medical sciences, vary from unwise, through unethical to monstrous. The following list is just a small sample.
  • The rights of non-sentient cell clumps are deemed to be more important than the human rights of those of fully sentient and pain-experiencing individuals.
  • People whose genetics or womb environment has resulted in gender identity and behavior which differs from the norm are treated as if they were criminally responsible for this difference.

    • In spite of the fact that sexual expression is necessary for full mental health, these individuals are pressured to avoid satisfying this human need with consenting partners, in line with their innate programming.
    • People with these innate differences are denied the right to a legal sexual union which provides them with the same rights as those who have different innate sexual preferences.
  • Incestuous rape which results in pregnancy and life-long trauma and psychological distress for the victim is treated as less of an infringement of human rights than the early termination of a non-sentient potential life. In the recent Brazilian case, the eventual death of the non-sentient life forms was inevitable and the early termination was effected in order to save a fully sentient life from a slow and gruesome death. If the double pregnancy had been allowed to continue, the death of the potential humans would have been prolonged and possibly painful.
  • It is considered to be a human right to insist that a terminally ill person suffer horribly until they die from "natural" causes. It is not considered to be a human right to allow someone to select a peaceful death at the time or their choosing in order to avoid prolonged indignity and agony.
  • It is considered a human right to keep the bodies of brain dead people alive until these bodies die of "natural" causes. The social and psychological need of surviving family members is not considered to be a more important right.
  • It is considered a human right for pedophile priests and physically abusing nuns to be shielded from public exposure and employed in areas where they can re-abuse. This right is considered to be more important than the human right of the victims and potential victims to mental and physical health.

Brennan has not made it publically clear that he disapproves of his employer's behavior or dogmatic stance on these issues. He has not publically acknowledged that he is in opposition to the abuses, or even that he sees them as abuses. As a lawyer, he should be well aware of the implications.

No matter what Brennan's private views may be, he has a clear conflict of interest unless he recuses himself from his position as Chair of this committee or he resigns from his religious vocation. Since the latter is probably not financially feasible I strongly recommend that Fr. Brennan voluntarily withdraw from his government appointed position in order to protect the national and international credibility of this committee.

Summary

In the light of the recent spate of internationally condemned behavior by the Catholic Church in Brazil, Ireland and the USA, and the mounting death toll in African and other poor countries as the result of the censure of condom use, this appointment is a PR disaster for the Australian Government.

While it is true that no-one is entirely without prejudices, there is no excuse of for appointing someone whose impartiality is clearly compromised. This appointment is no more appropriate than appointing the likes of Richard Dawkins to preside over a committee charged with collecting public views on the right to practice all aspects of religion.

It is more than possible that both Dawkins and Brennan have the integrity and intellectual rigor to rise above their prejudices when carrying out an activity of this nature. It is, however, considerably less certain than would be the case for others who are not so clearly hampered.

The message which this appointment gives to the outside world is that the Australian Government is insensitive to those whose human rights have been abused by the Catholic Church and raises the question of whether they are truly interested in human rights at all. It is in appallingly poor taste and should be rescinded immediately.

Jim Wallace and ACL

Like the Catholic Church, the views of the ACL are not representative of the values, ethics and morals of the bulk of the Australian population. Like the Catholic Church, many of the avowed and expressed morals of this minority group are considered to be immoral by the majority of Australians.

This group seeks the right to engage in behavior which most Australians consider to be discriminatory or abusive, simply because the behavior is in line with its unique version of the Christian religion.

It also seeks the right to impose its views of morality on everyone else on the arrogant grounds that it is the best or only view of morality. They have no more right to do so than Australian Muslims have to impose Sharia law on those who do not support it.

There is something distinctly odd about a group that takes the high ground on moral values which is also working to destroy the introduction of a national code of human rights. One must ask what they fear from a code which will represent the developing values of the Australian population and presumably reflect international principles supported by modern science and reputable research in the field of ethics.

If the reproduced letter to the faithful is genuine then they fear that their claim to the highest form of morality will be exposed as hollow, as is happening in the State of Victoria. It would also seem that they are afraid that the charter will weaken or kill their ability to influence government officials to make decisions which force their values on other Australians.

The committee and the government should take very careful note of the effects of minority religious and ideological groups who successfully pressure national and regional governments to provide an environment where all citizens, regardless of religious persuasion or lack of it, are forced to accept the effects of their minority viewpoint. Compare the two Muslim nations of Iran (sharia law) and Indonesia (multi-cultural). Compare the USA (the religious right has infiltrated the government) with Canada (multi-cultural).

States in the Bible Belt of the USA have the highest rates of crime and social disease compared with other States. Those most at risk of sustaining serious psychological and physical abuse in these areas are those who are known to have no religious beliefs and those whose gender identity or social behaviour differs that advocated by the dominant group. Abuses of the human rights of gays, atheists, wiccans and even Unitarians, are routinely ignored or worsened by those in authority. The expression of religious and gender prejudices are frequently worse than racial prejudices. Those with no religious beliefs are routinely treated as evil and gays as if they were inhuman. It is said that a group of youths carrying Bibles are more to be feared than a group of bikers in leather jackets.

Nationally, a person who does not give lip service to the religious right is unable to hold office. This is in spite of the fact that the constitution states that a person's religious belief shall not be a test of office. The corruption of government officials who loudly espouse the views of the religious right has been common place news over the last couple of years. They have been convicted of fraud, unfair business practices, rape, wife beating and child abuse as well as being outed as privately practicing homosexuals while publically demanding that such persons be treated as criminals. One offical was convicted of the sexual harassment of students and staff interns and ironically charged under the bill which he authored to criminalize the practice. Hypocrisy is alive, well and rife.

RLWemm

Representation and Rights

There are several reasons that the views of those who most need rights protections will not be so easily or sufficiently heard.

I'm overjoyed to see a member of the homeless has managed to bring their views and issues because plenty of the poor and homeless will not have access to the consultation online nor easilly get to meetings.

That the mentally Ill are disproportionately amongst the homeless for a variety of reasons as well as Transgender, Gays, Lesbians and Bisexuals because of the tendency to be cast out of their families and employment discrimination and often leaving school early because of transphobic and homophobic bullying means that many of these people will not know about the consultation, in any of it's forms, or be able to access it.

And many people are simply too busy struggling to survive day to day to be able to get involved.

Also because of the effects of hostile and often violent discrimination and abuse many simply do not have the confidance to make their views heard and weather the feared hostile response.

Intersex people make up about 1/60th of the population, Gays and Lesbians perhaps 2% and Indiginous Australians 2.6%, (so thats over 5% of the population needing rights protection) Estimates on Transgender people are much more vague and range from 1% to as high as 10% of the population (that the majority of the most common forms of Transgender remain 'closeted' in hiding because of fears of discrimination and hostility is not disputed but counting them is therefore very difficult. Still added to the other that's somewhere from perhaps 6-15% of the population, there is of course some crossover and not only do Gay and Transgender Indiginous people exist but the cultural rights of Sistergirl traditions and the like mean that they have a cultural claim to their same-sex relationship and transgender rights as well as other claims). Who knows how many Goths and Emos there are but that they, especially Emos now, are the brunt of many jokes vilification discrimination harassment and the like is certain. The reality of their culture is missrepresented often in alarmist ways. Goth culture for example has constantly been associated with depression and suicide despite studies showing that Goths are actually more emotionally stable and have better mental health than average, that Goth culture is in fact healling, yet there are attempts to ban them from Russian Government buildings and there were violent anti-emo riots in Mexico. It's often said 1 in 5 Australians experience mentall illness, many face employment, legal and social discriminations based on that mentall ilness... how high would the percentage go who need better protection if we had good data to tabulate? Over a quarter of the population and more?

And of course we know that discriminated against groups have higher suicide rates. The suicide rate fro Transgender people is especially abominable with most figures showing a 50% attempted suicide rate! Yet where has been a response from the government to deal with the discrimination against Transgender people? A choice of inaction is also a choice. Making those who chose to do nothing about this discrimination responsible for deaths by gross negligence.

It's good to see that we have Atheists now speaking out for their rights, often abused by a system that biases even our democratic processes towards not just religion but a single specific one. But where are all the other faiths practiced in Australia on this forum?

Unpopular groups facing a lot of missinformation, missrepresentation and public hostility and hate. Lucky for them all they have me here raising their issues because I share some of them and because people I know share the remainder.

Most have been traumatised out of the capacity to engage in public discourse or turned away entirely from any trust in the system that regularly fails them or abuses their rights.

And then finally we have the other tragic problem with the entire consultation. The whole point of Human Rights protections is to put a limit on the power of the majority or state over the smaller less powerful groups or individuals. And so if this process results in the majority saying they do not want there to be protections for everyone equally as that would mean they couldn't continue to discriminate against minorities anymore... then that would and could only mean that such protections are needed!

Now Australia historically has managed to be good on that with the referenda on the vote for women and counting Aboriginals as humans and citizens. However that we have let the rest of the world extend human rights protections far far ahead of us even when we were instrumental in the drafting of the U.N. Decleration on Human Rights does not fill me with confidance. Nor does the discrimination I and friends of mine face from people and even legislation.

Putting the human rights of unpopular minorities to the vote, or letting the majority determine them in any way is foolish. Yes the majority may well be in favour of them, the protections defend them too and Australians on the whole do I think believe in a Fair go for everyone. Certainly I hope that will be the result. But if they don't it will simply reinforce the need for rights protections rather than form a justification for not improving them. A minority of just one person has rights and no amount of the opinions of larger numbers should be considered more important than just one persons rights.

Majority rule need never exceed any minority or groups or individuals rights. It still gets plenty to decide over.

So not only will many of those who need their rights protected not have a chance to speak out but the very process could simply result in them being downtrodden again if protecting minorities from the majority is unpopular with the majority who they need protection from. How could taking that gamble be ethical? The need of even just one single person for greater human rights protections should be sufficient to ensure there are greater human rights protections. Those more easily able to raise their voice whether the real majority view or not should not be allowed to result in continuing injustice to others.

The only risk of fairness is to those who desire to be unfair to others.

Finding new posts could be easier

Now that the comments have become extensive it can be tricky finding the new posts. And I noticed that only a few times have I received the automatic notification when comments of mine have been replied to.

So a method with which to more easilly find new posts to more easilly track branching conversations would make things better I think.

thanks for your suggestion

Thanks for the feedback Bayne

We'll definitely take that into consideration for the next forum.

Cheers

Sally

srose@openforum.com.au

 

Human rights

Human rights legislation should increase the recogntion of the dignity and rights of every person in Australia. Part of these rights must be legislation and funding that ensure we are treating all people equitably regardless of gender/race, sexual preference, ethnicity, origins, cultural beliefs, access to financial resources. Equitable is not equal in any simplistic sense but involves fairness and recogntion that we start in different circumstances with different baggage and resources. However, these differences should not affect our capacities to develop capabilities and live satisfying lives.

Freedom of speech needs to be protected but speech that creates serious harms and exclusions cen be limited, particularly if negative results can be identified. We need to encourage debate and diversity but protect those who are vulnerable.

Over protection of vulnerable groups can also affect human rights of groups defined as disadvantaged and should not be used. the presumption of capacities to make one's own decisions and mistakes needs to be protected except where individual cases show deep harm to self or specific others. Groups should never be assumed to need such controls because of behaviours of individual members.

Great Points!

You make a great point about Equitable Vs Equal, which addressses my concerns about on-paper equality as oppossed to real-world equality.

Also your point on over-protection is interesting and likely very important. Do you mean only in the making of decisions on others behalf when they are still capable of making decisions for themselves or is there more to this? Can you mention some examples?

equality and equitable treatment and the chairman

Three cheers for.... Bayne MacGregor, Kristy, R L Wemm, Eva Cox and others. Someone made the comment that the responses on this forum are weighted in one direction – yes, they represent those who have been denied a fair go in Australia for the last 2 centuries. And they hope that at last someone will listen and act to make all Australians equal and be treated equitably. But they realise that if a Jesuit priest is chairing the hearings, then there is no hope of any real change because he has vowed to serve his religion before humanity.

Submission To The National Human Rights Consultation Secretaria

We make this submission on behalf of historic Christianity; historic Christianity that receives the Bible as the very Word of God, and the only rule for the whole of life and government. Our submission is based upon the moral law of God; the very God acknowledged by our Constitution when it refers to Australia as a nation to be "humbly relying on the blessing of Almighty God."

When Australia was settled by the colonists in 1788, they brought with them the principle that the Bible was the rule for the whole of life. Justice Hargraves, giving judgment in the Supreme Court of NSW in 1874 wrote:

We, the colonists of New South Wales, ‘bring out with us' (to adopt the words of Blackstone) this first great common law maxim distinctly handed down by Coke and Blackstone and every other English Judge long before any of our colonies were in existence or even thought of, that ‘Christianity is part and parcel of our general laws'; and that all the revealed or divine law, so far as enacted by the Holy Scriptures to be of universal obligation, is part of our colonial law - as clearly explained by Blackstone Vol. 1 pp 42-43; and Vol 4 pp. 43-60.[i]

Australia was founded upon the Judeo-Christian ethic, thereby enshrining equal rights for all its citizens under God. Our nation's Christian origin is still seen in that our Parliament commences opened every day with the Lord's Prayer.

Our Fundamental Proposition

The absolutes given in the moral law of God (the ten commandments), "upon whose blessing we humbly rely", are not only the true basis of Australian common law, they are the true basis for human rights. We hold before the human rights consultation in this regard, the wisdom of God: "Righteousness exalteth a nation: but sin is a reproach to any people."[ii]

The Concept of "Human Rights" Discussed

It is our view that the moral law of God which is of universal obligation enshrines the true rights and freedoms that belong to every Australian. The second table of the law[iii] gives those rights and corresponding responsibilities of each Australian to his neighbour, at all times, and in all situations. The fulfilling of the responsibilities of love under the Law of God, which law is holy, just and good, is in itself sufficient to automatically preserve all true rights (entitlements) of all. For example:

1. Under the 6th commandment, (‘you shall not kill') it is an inviolable human right to have one's life viewed as sacred and never to have one's life taken unlawfully, or to be attacked on the streets, or subjected to domestic violence, etc. The corresponding responsibility is to love one's neighbour by viewing his life as sacred and to promote his highest good under God. By this moral principle the common laws of Australia, and the rights of its citizens in this area of life are determined, promoted and protected.

2. Under the 8th commandment, (‘you shall not steal') it is an inviolable human right to own property. It is a corresponding responsibility to respect that human right, and never to steal from others in any way. For example, we deny that it is a "right" to engage in fraud, extortion, robbery etc.

By way of contrast to the above, in the material associated with this present Consultation Process, reference is made to "responsibilities". However, in the absence of moral absolutes, the concept of "responsibilities" is rendered almost meaningless, because the "rights" to which the "responsibilities" must answer, rise and fall within the fluidity of a moral vacuum.

A society ought to extend "rights" to all its members alike, according to the principles of God's law. To do otherwise, is to create antithetically competing rights and to remove the basis of justice. It can't be denied that humanistic relativism creates competing "rights", for it allows for no absolutes and views each person/lobby group as an alternative standard of right and wrong to be granted equal rights over against the rest of society. Sadly, this is what we see happening as our nation loses its moral compass. Woman's rights conflict with the rights of the unborn child under the 6th commandment; gay rights conflict with the rights of Christian organisations to discriminate according to the 7th commandment, etc, etc. Incongruous as it is, our nation is in danger of granting "rights" to everything but the upholding of the absolutes of the law of God upon which our nation was founded.

Response to the Three Key Questions

Question 1 - Which Human Rights (Including Corresponding Responsibilities) should be protected and promoted?

We believe that the most fundamental human responsibility is to acknowledge that Almighty God has the right to command our love and obedience, and to tell us how to love our neighbour. This inalienable responsibility, upon which our nation was founded and from which every true right flows, should be acknowledged, protected and promoted.

Those rights and corresponding responsibilities which are enshrined in the law of Almighty God ought to be protected and promoted. At the same time, in so far as laws have been enacted that grant ‘rights' which are contrary to the responsibilities given by Almighty God in the moral law, and which militate against the peace and freedom of our nation, those laws ought to be repealed.

It is only as the moral law of God is acknowledged that rights and responsibilities can be identified, protected and promoted.

Question 2 - Are These Human Rights currently sufficiently Protected and Promoted?

Many of the so-called ‘rights' that exist in our society are not rights at all. They do not arise from the moral law of God, but they are man-made inventions and perversions of God's law. Such ‘rights' ought not be protected. On the other hand, the law of God and the rights that flow from it, should be protected and promoted in every way possible.

Question 3 - How Could Australia better Protect and Promote Human Rights

Australia can never really properly protect and promote human rights without that we, as a nation, consider our responsibilities before the living God. Only within the holy framework of God's law will we ever treat our fellow Australians aright.

In Matthew 22:37-40 and Mark 12:29-34, Jesus Christ gives the sum of the Ten Commandments "You shall love the Lord your God with all your heart, and with all your soul and with all your mind. This is the first and great commandment. And the second is like unto it, you shall love your neighbour as yourself. On these two commandments hang all the law and the prophets".

It is only as Australians, in the way of repentance and faith in Jesus Christ, purpose to walk in these commandments will they protect and promote true human rights.

While ever a nation has no coherent, fixed moral standard, promotion and pursuit of a Bill of Rights, or even a Charter of Rights, is ideological folly which, if it were to proceed, would further entrench wickedness and militate against true righteousness.

Yours sincerely,

Rev. Chris Connors,

On behalf of the Church & Nation Committee of the Evangelical Presbyterian Church of Australia



[i] Ex parte Thackeray (1874) 13 S.C.R. (N.S.W.) 1 at p. 61

[ii] Prov 14:34

[iii] The second table of the law comprises commandments 5-10, and read as follows:

Exodus 20:12 Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.

Exodus 20:13 Thou shalt not kill.

Exodus 20:14 Thou shalt not commit adultery.

Exodus 20:15 Thou shalt not steal.

Exodus 20:16 Thou shalt not bear false witness against thy neighbour.

Exodus 20:17 Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ****, nor any thing that is thy neighbour's.

http://www.epc.org.au//historical/submission-to-the-national-human-rights-consultation-secretariat-may-2.html

What about other faiths? What about Indiginous Beliefs?

This country was not Terra Nullius. And there were spiritual beliefs prior to christianity here.

Throughout Australias history there have been Jews, Muslims, Taoists and others, on the goldfields, amongst the convicts, settlers and immigrants.

Here's a christian argument against your whole entire post:

Exodus 22:21 You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.

Well you cannot follow that rule while imposing christian rules on non-christians. Especially over Indiginous Beliefs!

Luke 60:31 Do to others as you would have them do to you.

In other words if you want your christian faith respected you should equally respect the non-christian faith of others.

Those two ideas alone are sufficient to justify Human Rights and a Charter of Rights, and one thats Multi-Cultural, Ecumenical, Multi-Faith including all Abrahamic and all Non-Abrahamic faiths and also a Secular one that defends everyones freedom OF religion and freedom FROM religion for those who do not believe in it.

http://en.wikipedia.org/wiki/Ethic_of_reciprocity

"It is our view that the moral law of God which is of universal obligation enshrines the true rights and freedoms that belong to every Australian." Sigh. And what about Allah, Ahura Mazda, Kukulkan, Thor, Cernunnos ... I know Australians who follow each of them, each could say theirs are the true moral guidelines that you must abide by. Each could also impose their religious rules over you! Wouldn't like that?

Then do unto others....

Australia - A 'Christian' Nation?

There is much historical evidence to suggest that Australia was, in no way, formed nor intended to be formed as a ‘Christian’ nation. I am currently writing a chapter on this subject for a book to be published next year. There is not room to canvass all the arguments here, but here is some information from my notes:

Australia was founded with no religious agenda, but as a dumping ground for convicts. The vast majority of convicts transported to Australia were, in no sense, ‘Christian’ – they had no religion and despised the clergy and its church for its corruption, lack of attention to the poor, and its alignment with the status quo.

The Australian governors, generally, saw religion only as a means of imposing moral order on the community – the clergy, for them, were little more than moral police. Evidence of the lack of concern about religion in the new colony is that, despite the presence of a chaplain, there was no divine blessing asked for at the foundation ceremony on 26 January 1788 – the first religious service was held a week later under some trees.

In colonial Australia, clergy often served dual purpose as magistrates. The clergy were known to impose the harshest and most unfair sentences on the prisoners, leading to the saying, “May God have mercy upon you, because the parson will give you none”.

The first church was not built until 6 years after the colony was established – and even then, disinterest from the Colonial administration was so great, the minister had to pay for it out of his own pocket. It was built to seat 500, but less than 40 attended the Christmas service in 1793. When convicts were forced to attend services in the building, they burned it down.

The people who settled the bush and worked on the goldmines were, for the most part, ‘practical atheists’. There were few churches in the bush, and itinerant clergy were often treated with hostility or ridicule. On hearing that a clergyman was approaching, one town took up a quick collection and sent out a rider to meet him – offering him the 10 pounds if he would just, kindly, ride on and leave them alone!

Letters from many experienced clergy in colonial Australia note that the general population was, at best, not interested in, and, at worst, hostile towards, religion.

One of our ‘Fathers of Federation’ Andrew Inglis Clark (who had been a Baptist) was, by then, a Unitarian and vehemently argued for a clear separation of church and state in Australia. Clark wrote the draft Constitution in 1890 and it formed the basis of the Constitution we have today.

 

Charles Kingston, who played a major role in Federation was a known womaniser, said to have had at least one (and possibly four) children by women other than his wife. Hardly a poster boy for Christianity!

The invocation to Almighty God was not supported by all the fathers of federation. Indeed, our first Prime Minister, Edmund Barton, pragmatically abstained from the debate. Barton, who was also known as ‘Tosspot Toby’ because of his predilection for alcohol is, however, quoted as saying: If, as tax-payers, we are asked to support religion we say, "No; you must leave that to our consciences as individuals, and not impose it upon us as tax-payers."

Another of our founding fathers, Alfred Deakin, was not a conventional Christian. Deakin was heavily involved, at one time, with spiritualism (at that time closely aligned with rationalists and atheists). Deakin notes that one of the key figures at the convention to discuss Federation was Bernard Ringrose Wise. Wise was an agnostic.

To argue that Australia was conceived and evolved as a Christian nation, or that our 'founding fathers' were mainstream Christians, ignores our real history. The early pioneers and bush workers who developed the land and gave us our unique national identity were, in the main, practical atheists who didn’t give a damn about religion and held the clergy in contempt.

The fact that, today, Australia is one of the most secular nations in the world, is no accident. It is because the nation was built by hard-working, practical people who, for the most part, eschewed superstition and religious cant and dealt with the harsh realities of living in a distant outpost with courage, fortitude and self-reliance.

Australia was not intended to be a "Christian" nation.

That is most interesting, Kristy. It’s a pity today’s government isn't so smart. Religions have become multinational corporations with assets and profits in the billions of dollars from their tax free enterprises that have nothing to do with charity, good deeds or welfare. Australians are paying at least 20 billion dollars more in tax each year to make up for the tax religious organisations refuse to pay, despite the fact that only a small fraction of their profits go towards charitable activity. And rate payers are paying higher rates because religions refuse to pay rates on any property – even on commercial office blocks, apartment houses, warehouses and the casinos of which Frank Brennan’s religion has about a score. So much for fair play and decency! Mainstream religions don’t know the meaning of the words. This man, a professor of Law who would chair a human rights commission, in 2007 supported a covey of Bishops who refused to pay the very substantial court costs of a woman they were harassing regarding her right to IVF. They lost the case, but the Electoral Women’s Lobby were financially the losers. Human rights from organised religion? I don’t think so!

National Human Rights Online Consultation

The Saltshakers Christian group points out that, "Once you extend 'benefits' and 'legal recognition' to one group, up jumps the next group wanting the same". The 'rights' demand is one without foundations - so it can slide anywhere!

This is easily seen in the question of the age of consent, where today's crime of child abuse is tomorrow's sanctioned relationship, once the pressure group gets its way.

And yet the question is more profound, which is why this is more about freedom of assembly and religion. Truths should stand on their own merits, without coercion from government or faceless bureaucracies. It is to be feared that this glorious land of liberty is to be stifled under an increasing miasma of "political correctness", all the more sad and stupefying when the cry a couple of decades ago was for no censorship. The same left-wing element that used to profess, "Though I disagree with what you say I will defend your right to say it" now shrieks with outrage at protests against what has for centuries been believed to be immoral and criminal behaviours, and seeks to impose acceptance of such immorality on all activities - business and educational in particular.

But christian churches stand outside the realm of government jurisdiction. The christian lives all of life as in the sight of God and knows no disjunction between his private and public duties.

The sad record of history is for governments to interfere with this right of expression, sadder now in a professing democracy. The christian sees God as Lord of all, to whom all are answerable.

The christian church will always endure according to the promise of the Saviour of mankind; but governments mistake their role if they adopt a stifling and oppressive role. "We have nothing to fear but fear itself", so why do we need to regulate expressions of faith? Let them all compete on a level playing feld. I hope we're not going the way of red China with government regulation of the church and vicious oppression of house churches. "It could never happen here", some will say. Sinclair Lewis,"GeorgeOrwell" and others have prophesied it......

Fr Frank Brennan's picture

Introducing legal facilitators

Today, I would like to introduce a couple of special guests to our online Forum. Our guests are Professor George Williams and Professor Tom Campbell, both of whom have taken a keen interest in the debate about human rights in Australia in recent years. We hope that George and Tom will be able to clarify some of the legal issues that have been raised on this Forum, and offer some insights into the various models of rights protection that have been proposed.

George Williams is the Anthony Mason Professor of Law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales. He has written and edited many books, including A Charter of Rights for Australia (2007) and The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004). In 2005, he chaired the Victorian Human Rights Consultation Committee that lead to the enactment of the Victorian Charter of Human Rights and Responsibilities. George Williams will be supported by Phil Lynch, Director, Human Rights Law Resource Centre.

Tom Campbell is Professor of Philosophy in the Centre for Applied Philosophy and Public Ethics at the Charles Sturt University, and was Dean of the Law Faculty at the ANU from 1994 to 1997. He has written and edited many books, including Protecting Rights Without a Bill of Rights (2006) and Sceptical Essays on Human Rights (2001). He is currently working under an ARC Discovery Grant on an Australian alternative to Bills of Rights. Tom Campbell will be supported by Nicholas Barry, Research Fellow, Centre for Applied Philosophy and Public Ethics & Lecturer in Politics, School of Social Sciences and Liberal Studies, Charles Sturt University.

Father Frank Brennan
Chair,
National Human Rights Consultation Committee

Advisory opinions and alternative models

Since Professor Williams and Professor Campbell have joined us, perhaps they would like to offer brief comments on what seems to me one of the most obvious problems with the popular non-binding charter option. As is known to all students of constitutional law, such an instrument could not be used as a basis for courts to give purely advisory opinions on whether legislation is inconsistent with a set of statutory standards. It has long been accepted that the Constitution structures the judicial power of the Commonwealth in such a way as to exclude advisory opinions in federal jurisdictions: see In re Judiciary and Navigation Acts. The reasoning in that case suggests that advice on an abstract question of law is not a "matter" for the purposes of section 76 of the Constitution.

Now, I realise that it is possible to draft legislation that gives a litigant some relief in addition to the provision of an advisory opinion to the parliament, such as a direction that parliament reconsider the merits of the legislation within a certain period. It appears to me, however, that any such direction is merely ancillary to the legal opinion that the impugned legislation is inconsistent with relevant statutory standards. Moreover, it does not finally determine any substantive rights, leaving them entirely in the hands of the parliament. It does not even amount to a legal finding that the parliament erred in law and must reconsider in accordance with law.

My fear is that the High Court would interpret such a provision as either a sham to avoid the wording of section 76 by so-called "careful drafting" or at best as a procedure that is merely ancillary to a form of relief that lies outside the power of the federal courts. In either case, the legislation could be struck down, and an extremely expensive consultation exercise could come to nothing. Indeed, it would be a high-profile failure, and this would likely set back the process of reform.

I really need to see something approaching a guarantee that legislation using the dialogue model will be constitutional, notwithstanding the implied proscription of advisory opinions in the Australian Constitution. In the absence of very compelling legal reasoning, I think this model is too problematic to adopt, although I am not adamantly opposed to it in principle.

I'd prefer to see a small number of fundamental freedoms (particularly freedom of speech) included in an entrenched Bill of Rights, thus setting the boundaries of legislative power and enabling the courts to strike down legislation that transgresses them. However, in its wisdom, the government has refused to countenance this model as an outcome. That being the case, I prefer a non-judicial body (perhaps staffed mainly by retired High Court judges) to advise on when legislation transgresses certain boundaries. I proposed this model in my submission to the Consultation - best version available at http://www.users.bigpond.com/russellblackford/Submission%20to%20human%20rights%20consultation.htm - and I have since seen that the late Professor George Winterton suggested something similar.

I would welcome comments from Professor Williams or Professor Campbell. I look forward to raising a number of other issues in the coming weeks, and I am grateful for the provision of this additional forum.

Further Qualifications?

Going by the comittee idea...

Rather than just retired High Court Judges who I'm sure have great expertise in matters of law.. shouldn't there also be Human Rights Experts with expertise in the principles and applications of human rights?

Suddenly a philosophy degree with an emphasis in Reciprocal Ethics might become more impressive on a resume but beyond that i think it is important that such a comittee combine both people who understand the law as it is and hass been and who can deeply understand new laws but also people with a similar understanding of human rights so that in combination they may arrive at conclusions that either alone may get badky wrong!

Charter of Rights

The very word DEMOCRACY is understood to be MAJORITY RULE. When minorities rule whether by force or by legalities, e.g. anti-discriminatory legislations, then we no are longer a democracy. Why is anyone tainted with a Judeo-Christian belief immediately slammed as biased? Afterall, that is the majority 'belief' of Australia. To be an athiest requires a belief also, so one can expect a bias in their concept of what is one's 'rights' . Freedom is not being able to do anything you want: that is 'selfishness'. Legislators have an obligation to consider the benefit to the whole of society in the framing of laws which the legal professions have a responsibility to uphold in word and spirit. The 'right' to make laws which stay within the confines of the conscience of the majority must remain in the hands of the majority's elected representatives.

But...

Democracy in the past (Athens etc) was rule of the majority of a very tiny minority of land-owning males of a certain age. When modern democracy was envisaged it was as a tool to serve rights and limited by rights (France and the U.S.A.). When Australia became a democracy the reason this was not a part of Australian democracy was so we would not have to treat Asians and Aboriginals as equals to whites! That was the argument used to defeat the push to have these rights recognised from Federation!

And ensuring equal rights does not rule over the majority. It merely puts a small distant limit on their already great power. Majority rule does not cease merely because wives can't be beaten or slaves owned or Aboriginals misstreated. The majority still makes decisions. Just like a bussiness owner still decides how to run their bussiness but they cannot whip their employees. It's exactly the same.

Christians are not slammed as being biased for being christian. A potential conflict of Interest has been raised not because someone is a christian but because they are a priest.. thats a huge difference. And is raised just like any other potential conflict of interest, like the Treasurer having shares in companies who profit or take losses by their choices for example. And some genuinely biased views have been accurately called that where people have said their religion should have special unique rights and privileges not allowed to everyone. I'm arguing for religious equality. I'm in favour of the right to religious beliefs! And some christians have posted here in favour of religious equality and a charter of rights too!

Who said anything about being able to do whatever they want? The rights-advocates are calling for equal rights and everyone having to respect others rights.. thats not selfishness, thats fairness. But a majority being able to do whatever they want to a minority including unfair discrimination? Why that would be selfish wouldn't it!

George Williams's picture

Constitutional issues

Hi

I think that a carefully drafted clause would survive constitutional attack on the basis that it would not be an advisory opinion. See my joint piece ‘The Constitutional Validity of Declarations of Incompatibility in Australian Charters of Rights' (2007) 12 Deakin Law Review 1:

http://www.deakin.edu.au/buslaw/law/dlr/pdf_files/vol12-iss1/1.pdf

However, I recognise that there is doubt about this, and so a roundtable recently came up with an option that would no doubt survive any attack. See:

Constitution poses no obstacle to national Human Rights Act

http://www.hreoc.gov.au/about/media/media_releases/2009/32_09.html

Cheers

Professor George Williams
University of New South Wales

Freedom of speech

Father Brennan asks whether rights, including freedom of speech, should be absolute. I answer "No." No constitutional right, however important, is so important that it trumps all other considerations in all circumstances. There always has to be an ability for parliament to enact laws in compelling circumstances, such as to protect public safety. Direct incitement to kill an identified individual is an obvious case where freedom of speech can legitimately be overridden. We have seen a recent case in the US where an abortion doctor was murdered after much had been said about him publicly that was close to incitement of his murder. Even John Stuart Mill recognised the need for some limits, such as the situation of an angry mob gathered in front of a corn dealer's house. Mill accepted the legitimacy of preventing a demagogue from making the inflammatory claim, directly to the mob, that corn dealers are starvers of the poor.

Indeed, if a shock jock were to say, "Go and kill the X's", where the X's are a racial or religious group, that should certainly attract a criminal sanction. There is always someone very close by an X, and likely to be roused by such direct incitement to violence.

Likewise, we are social beings, so there must come a point where at least some protection is given to reputation. If we had no defamation law at all, someone could spread a lie about me that would destroy me as a social being, such as "Russell Blackford is a Y", where Y is something that would lead to my being ostracised (it might mean "pedophile" or "murderer", or whatever).

Nonetheless, restrictions on freedom of speech should be kept to the absolute minimum. Freedom of speech is far too important to be treated the way it tends to be treated in international law, where it appears to be seen as particularly dangerous right that must be hedged around with special limits and responsibilities. It's as if protection is given to free speech only grudgingly, and it is seen as like a dangerous animal that must be fenced in. That is not how it should be looked at in Australia.

In particular, the International Covenant on Civil and Political Rights is very weak on freedom of speech. Article 20 mandates unacceptable restrictions, including the restriction on propaganda for war. Notwithstanding the ICCPR, if I believe that Australia should go to war against, say, Iran, I should be able to put this viewpoint in clear statements, or in artistic works, or however I wish, without restriction, even though I may be wrong, and even though, as it happens, I would be appalled by such a political decision (as I was by the decision to go to war with Iraq). As it happens, my speech would probably be protected under the Constitution as it stands, since it would clearly be political speech and there is no necessity in stopping it.

The prohibition of hate speech in Article 20 of the ICCPR is worded so broadly that it covers anything that could be characterised as "advocacy of ... religious hatred" that constitutes incitement to mere "hostility". But people are incited to mere "hostility" all the time, and it is not necessarily a bad thing in a pluralistic society - e.g. the Liberal Party constantly incites us to feel hostile to the views of the Labor Party and vice versa. Socialists constantly incite us to be hostile to capitalism. The restriction to "advocacy of ... hatred" should give some protection, of course, except that we repeatedly see trenchant, but still relatively civil, critiques of religious views being characterised as "hatred" (the vews of Richard Dawkins are often characterised in this way, as in a recent article by Alvin Plantinga in Christianity Today). The word "hatred" has become so overused that there is no guarantee that courts will interpret it in the future in a way that gives real protection to critiques of religion or particular religions. Indeed, many legitimate statements by the church leaders criticising atheism could be characterised by a sufficiently activist tribunal as examples of advocacy of "religious hatred" that constitute incitement to "hostility". A good example can be found in some of the recent public claims about atheism by Cardinal Cormac Murphy O'Connor in the UK. I strongly disagree with him, but it is, of course, perfectly legitimate for Church representatives to incite mere hostility to atheism, as opposed to inciting violence against atheists.

All in all, Article 20 is disastrous in the way it imposes limits on freedom of speech. It does not merely permit governments to ban or impede certain kinds of speech; it requires that they be criminalised. It shows a tendency towards paternalistic suppression of robust public disagreement on matters of peace and war, and on matters of religion, that is quite inappropriate for a modern society.

Article 19 provides very weak protections, as freedom of speech can be infringed merely in the interest of "public health or morals". A right to free speech that can be infringed merely to protect morals is no right at all. The whole point of having freedom of speech is to be free to say things that are widely regarded - perhaps by many traditions and perhaps by an electoral majority - as immoral. I may, for example, wish to advocate human reproductive cloning or open marriage, or many other things that are regarded as immoral by many traditions (as well as the electoral majority). The legislature should not be able to prevent me from doing so.

International law provides very weak protection of freedom of speech. Although freedom of speech is not an absolute right - since no such absolute rights exist - I would like to see Australia offer far stronger protections than are contemplated in international law, something much more like the protection offered under the US Bill of Rights, as interpreted by the US Supreme Court in recent decades.

The basis for an Australian charter of human rights.

RLWemm

Submissions like the one from the Evangelical Presbyterian Church of Australia provide a vivid example of why Australia needs a charter of human rights which is based on mature forms of moral reasoning rather than self-preserving ideologies.

The Evangelical Presbyterian Church of Australia argues that their unique form of Christianity, should be forced on all Australians because

  1. Australia was founded as a Christian Nation
  2. Moral Absolutes are necessary for true morality
  3. Australian common law is based on the O.T. Ten Commandments
  4. Their version of morality is the only correct one

This arrogant position is based on ignorance and a primitive form of moral reasoning which violates the very concept of universal human rights.

Australia is a multi-cultural and multi-faith nation.

Although Kristy has convincing blown away any notion that Australia was founded on the Christian religion, Australia’s religious history is actually irrelevant to the formation of a charter of human rights. At this point in time, Australia is a nation of people with a variety of religious and ideological beliefs, including many who have little or no belief in world-controlling or personally punitive supernatural beings.

Any charter of human rights must be widely acceptable and fair to all. No religious or ideological group should be allowed to dominate or to insist that all citizens be forced to conform to its unique values. This may mean that such a charter must include clauses which actively protect people from the agendas of groups operating at a primitive moral level.

The proposals by the Evangelical Presbyterian Church of Australia, for example, would violate the European Convention on Human Rights. Article nine of the Convention states:

1. "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance."

2. "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others."

The European Convention allows for freedom of religious belief and expression with the proviso that such beliefs and practices do not break the law of the land or impinge on the rights or reasonable needs of others. Australia would do well to emulate this.

Group Morality is neither static nor universal

Consideration of history and culture reveals that moral values are neither universal nor static. What is deemed to be moral in one place or time is deemed to be immoral in other times and places, and conversely, what is immoral in one place or time is deemed to be moral in other times and places..

Cross cultural studies show that specific moral values differ from nation to nation, culture to culture, community to community, family to family and even from person to person. History shows that group morality changes over time. It evolves across generations as a result of environmental influence, increasing knowledge and thoughtful discourse.

The barbarism of past centuries has given way, at least in industrialized countries, to codes which emphasize justice and fairness for all.

Examples of changes in moral values prevalent in Australia over the last fifty years include attitudes to dancing, card playing, attendance at movies, dress codes (women wearing trousers or showing legs, arms, midriffs, breasts), displays of public affection, sex before marriage, artificial contraception, females working after marriage, divorce, medically induced abortion, homosexuality, gay marriage and euthanasia.

The Christian Bible which the Evangelical Presbyterian Church upholds as law does not display a static or absolute set of moral principles either. It is a collection of books which depicts evolving attitudes and values from Genesis to Revelation. The moral codes defined and prescribed in the first few books are very different from the moral principles defined and prescribed in the final pages.

The concept of absolute moral values is immature.

The reasoning of groups like the Evangelical Presbyterian Church rests upon a belief in the existence of moral absolutes. Such a belief is logically inconsistent because the supposed creator of these absolutes is not required to be subject to them and nor are any people of authority who are deemed to be acting under his direct, or even his indirect, orders. The Christian Old Testament of full of stories about righteous people who believed they were free to rape, kill, torture and enslave because they had been instructed to do so by the Yahweh god. This behaviour was often in stark contrast to the rules which this god commanded these same people keep.

This type of thinking is a feature of primitive moral reasoning and should not inform a maturely designed charter of human rights.

Personal Morality is developmental.

Psychologists have shown that morality, like cognitive skill, matures in line with experience, education and mental challenge. Like cognitive skills, not every one reaches the top of the developmental tree. Some people are experts while the bulk of us are not.

It is important that national charters of human rights be based on the kind of reasoning which is evident in the highest levels of this scale.

Kohlberg’s stages of moral development.

Lawrence Kohlberg’s seminal work on the development of moral reasoning describes six stages in the normal process of moral development.

At stage 1 children think of what is right as that which authority says is right. Doing the right thing is obeying authority and avoiding punishment. At stage 2, children are no longer so impressed by any single authority; they see that there are different sides to any issue. Since everything is relative, one is free to pursue one's own interests, although it is often useful to make deals and exchange favors with others.

At stages 3 and 4, young people think as members of the conventional society with its values, norms, and expectations. At stage 3, they emphasize being a good person, which basically means having helpful motives toward people close to one. At stage 4, the concern shifts toward obeying laws to maintain society as a whole.

At stages 5 and 6 people are less concerned with maintaining society for it own sake, and more concerned with the principles and values that make for a good society. At stage 5 they emphasize basic rights and the democratic processes that give everyone a say, and at stage 6 they define the principles by which agreement will be most just.

http://faculty.plts.edu/gpence/html/kohlberg.htm

Stage One is characterized by an obedience and punishment orientation. The child assumes that powerful authorities hand down a fixed set of rules which he or she must unquestioningly obey. At this stage a child assumes that rulers have a right to establish themselves by displays of power and vengeance and to rule by threat of punishment and hope of reward. Mercy, or failure to punish, is seen as evidence of weakness, not of morality.

This is the stage which describes the behavior of the Biblical Yahweh, the god who was originally a deity of the Midianites and other desert tribes before the Israelites picked him as their supernatural champion and/or he selected them to be his Chosen People.

The law of the Jewish god, Yahweh, is barbaric.

The so-called Ten Commandments are actually the Top Ten of 613 commandments listed in the book of Leviticus. They were all reputedly dictated by the same god, from the same mountain, at the same time, to the same prophet who proclaimed them to the Jewish nation as Yahweh’s law.

Very few of these commandments (from either the Catholic or the Protestant versions) meet the common standards set out in the criminal codes of modern civilized countries, let alone the evolved standards of current ethical codes.

The penalties which the Yahweh god prescribed for breaking any one of the Top Ten, as well as many of the other Commandments, was painful death – usually by stoning, strangulation or decapitation at the hands of the faithful.

The first round of such deaths occurred immediately after Moses descended from Mt Sinai and found his people worshipping the god Baal. The worshippers were slaughtered by the prophet’s army before they even had a chance to find out what law they were being punished under. Apparently the “thou shalt not kill” commandment did not apply to prophets or their minions.

Apparently it did not apply to the divine author, either. The more exotic forms of tortured death were attributed to the Yahweh god himself: children mauled by bears, genocidal drowning in an epic flood, national slaying of first born children, whole cities destroyed by fire and/or volcanic ash not to mention countless brutal slayings, rapings and enslavements carried out at his specific behest.

Few modern Australians would tolerate laws which punish those who fail to keep the Top Ten of Yahweh’s commandments, especially if this involves the administration of the appropriate Biblically prescribed death. Slaughtering people for failing to keep the first four of the Top Ten (all of which involve the exclusive worship of the Yahweh god) would be especially unpalatable in such a multi-faith community. We would regress to the primitive moral level which operated when Calvin arranged to have the ruling authorities burn his version of “heretics” at the stake.

Other commandments in this series provided instructions for fathers selling their daughters into slavery, provisions for an owner to beat his slave to a pulp without punishment, provided that the slave survived for a few days after the beating, the requirement to stone disobedient and disrespectful children to death and a prohibition on wearing clothing containing more than one type of fiber. Wearing a cotton polyester shirt would contravene these laws but causing mortal or grievous bodily harm to a slave would not.

A charter of human rights should include clauses which clearly preclude the insidious development of these frightening possibilities in the name of religious freedom. Freedom of religious and ideological belief should include the right to be free from the requirements and practices of those who hold different beliefs. The operating factor should be the reasonable comfort of the receiving individuals, not the comfort to those who wish to disseminate or practice their beliefs.

Old Testament morality is not viewed as “Christian” by mainstream adherents of this religion.

The first recorded theological disagreement in the Christian church occurred when St .Paul argued against the original apostles that several aspects of the Jewish moral codes should be discarded by Gentile Christians. The rules of the “law and the prophets” were neatly side-lined by the argument that Jesus had fulfilled them.

The parable of the woman caught in adultery (John 7:53-8:11), believed to be an apocryphal story added by a scribe in the 2nd Century, underlines how the teachings of the early Christian Church increasingly differed from those of the Jewish scriptures.

Modern day Christians routinely extend the Pauline argument to state that none of the rules given to the Israelites continue to prevail now that Jesus has made a new deal with this god.

Now that Christ has come we are no longer under the Old Testament Law. Christ came to fulfill the Law and He accomplished that on the cross.

http://electronicbiblestudent.blogspot.com/2008/06/did-jesus-keep-ten-commandments.html

In summary

Traditional or evangelical Christian law should not form the basis of an Australian charter of human rights. Such a charter must be based on the highest level of moral reasoning. Because of the lobbying behavior engaged in by politically powerful conservative religious groups, the charter should include clauses which prevent the enslavement or harming of Australian people under laws and practices which are based on immature forms of moral reasoning.

The reasonable needs of all minorities should be met with the proviso that meeting these needs does not impinge on the reasonable rights of others. Powerful or majority groups should not be privileged or exempted by this charter in such a way that minority groups suffer. Particular attention should be paid to those who are vulnerable to influence or abuse due to illness, immaturity or impaired cognition, those whose sexual orientation differs from the norm, those whose beliefs about the supernatural differ from the norm and those which have racial or bodily characteristics (facial features, skin color, body build, height, weight).which cause them to stand out from the prevailing norm or against the dominant or ruling group

Rights may include the enforcement of temporary, or even, prolonged discomfit if this meets a greater need of the recipient. This should include the enforced provision of a need which is not immediately apparent to the recipient by virtue of cognitive immaturity, insufficiency, deficit or disability. Examples would be compulsory education in a specified range of subjects and national inoculation programs.

Freedom of speech should include the right to criticize the policies or acts of political figures and government authorities without fear of retribution. It should also include the right to criticize the content of religions, ideologies and philosophies, especially if the champions of these systems reserve the right to criticize other systems and their adherents. These rights should come with the proviso that the language used to express such criticism does not vilify a person, or incite hate, prejudice or violence against a person or group of people.

The final basis for this charter must not be the will of the majority, but the charter's adherence to the overriding principles of fairness and justice for all people, regardless of creed or lack of it, race, age, health, wealth, gender or gender identity, skin color, facial characteristics, country or origin, spoken languages, cognitive skill, marital status or sexual preference.

 

Human Rights Law for Dummies please!

Hi George, Tom, Nicholas & Phil

Thanks for joining us. I often feel frustrated in this debate by a feeling I don't understand finer points of law well enough to be able to back my own opinions up unde rpressure, and I suspect I am not the only one. May I ask you to help by beginning with a few legal definitions - in layman's terns please :)

When considering the pros & cons of Australia adopting a national human rights document:

What exactly is the difference between a bill, charter or statute?

&

In what ways would a constitutional bill or charter be different to a statutory bill or charter?

Also

Apart from a national human rights document, can you identify any other changes we could make to our legal or parliamentary systems which could play a role in improving the way human rights are protected and promoted? I have read a little about options for a parliamentary scrutiny committee on human rights, would such a body be a toothless tiger?

George Williams's picture

HiThanks for your

Hi

Thanks for your questions.

References to a bill, charter or statute all just come down to the name the law is called. You could really use any of these to describe what we are talking about.

Despite this, a bill of rights so most often used to describe a US style law that is in the Constitution (and so is almost impossible to change) and allows judges to strike down laws. In Australia this would need to be inserted by referendum.

A charter most often refers in Australia to an ordinary act of parliament (ie, a statute) like the UK Human Rights ACT or those in the ACT and Victoria that can be made and changed by Parliament and do not gives judge the power to strike down laws. This is the only model that the Rudd government says that it is willing to consider.

And yes, I also think we need to make a number of changes to how Parliament works. I see this as being the focus of any new national human rights law. This piece might help:

http://www.smh.com.au/opinion/wisdom-of-politicians-is-frail-shield-for-our-rights-20090601-bsv7.html

Cheers

Professor George Williams
University of New South Wales

Almost impossible

A lot of intelligent educated Australians seem to be of the view that getting changes through a referendum is virtually impossible - Julian Burnside and Kevin Rudd to name just two would seem to share this view.

The great advantage of course of getting a Constitutionally entrenched Bill of Rights is ALSO that once it was in, it would be equally difficult for governments of the day to get out and so rights would have real protection - the protection of parliament plus the protection of the courts when parliament wasn't paying attention as it frequently isn't to the little details. They wouldn't be esoteric trading chips exchangeable in secret for other things like national security interests by pollies with planning horizons of three or four years.

Australia, unlike the body politics of the United Kingdom and the United States has never has a civil war on its soil. It is quite likely, or at least so it seems to me, that, ordinary Australians will not really get behind a bill of rights in the constitution until at least one generation of us experience first hand what a civil war is like.

Wish it weren't so - but I think it is so. The problem is a problem of concentration span and competing demands. Whilst most Aussies are not indecent, nor are they given to wasting a great deal of intellectual effort. After a major test - like a war that effects ordinary people through the loss and sacrifice of family members, most of us, we would, like other peoples have, place the establishment of human rights on a firmer footing, higher in our priporities. Until then though, they seem to never become important enough to enough of us.

The United States Constitution and Bill of Rights was not collected by submissions - it was compiled by a people that DECLARED their rights.

I don't think humans in large groups value or understand emotionally what they don't pay a blood price for.

But I hope I am wrong. I hope the incremental approach - the education across generations approach that seems to be favoured because it doesn't upset the applecart and doesn't pit us against each other can work.

There is a corrollary danger to the incremental approach though - political scoundrels are just as capable of learning the shortfalls of Australia's systems as those who are motivated to overcoming them.

Where our rights are on a poor footing a political scoundrel can take advantage of that. Political scoundrels with an eye for personal opportunities tend to be keener students than disinterested citizens.

Tom Campbell's picture

Response to Sally's Questions

I am delighted to start off as a guest on the National Human Rights Online consultation by responding to Sally's very reasonable request for a few straightforward legal definitions of some of the key terms in the debate about how to protect and promote human rights in Australia. The disturbing thing is that there are none to be had. This is one of the reasons why few if any of us know what we might be letting ourselves in for if we adopt a national ‘bill' or ‘charter' or ‘declaration' or ‘convention' of human rights for Australia. The idea of human rights is itself none to clear as it is basically a moral and political concept, although one which has huge implications for the sort of laws and political institutions we ought to have.

One problem here is that many lawyers confuse human rights with human rights law, and some of these assume that human rights law must involve giving courts the task of deciding precisely what our legally enforced human rights are and sometimes also giving them the power to invalidate or radically reinterpret legislation which they consider infringe human rights as they interpret them. However, human rights don't have to be institutionalised in this way. Human rights are a set of broad moral values which ought to guide our social and political lives. Australia already has extensive human rights laws in the form of anti-discrimination laws, welfare laws, child protection laws and indeed the criminal law in many respects. These are all statutes that protect and promote human rights, sometimes well, sometimes not so well. So one way of improving Australia's human rights record is to enact laws that better promote human right values, improve our administrative and legal procedures to make those laws work better and elect representatives who deliver in this regard.

However, we all know that the controversial issue that is at the core of the current Consultation process, is whether we should have at the national level something like the UK Human Rights Act 1998, which incorporated the European Convention on Human Rights (based largely on the United Nations International Covenant on Civil and Political Rights) for two main purposes. The first was to require courts to interpret legislation, if possible, so as to make it compatible with the European Convention and issue ‘Declarations of Incompatibility' if this could not be done. This is regarded as a form of ‘weak' judicial review of legislation in contrast to ‘strong' judicial review where courts can actually strike down incompatible legislation. The second main purpose of the UK Act was to require government departments and other institutions exercising public power to act in accordance with the Convention.

Most people agree that strong judicial review is undemocratic because it gives too much power unelected judges. It is said that that weak judicial review is more democratic and has particular value drawing attention to injustices that are done to vulnerable minorities. In fact, while the technical legal differences are enormous, the practical outcomes are not so very different. This is because, instead of striking down legislation, systems with weak judicial review are able to change legislation by a sort of creative interpretation that is equivalent to rewriting crucial bits of the statute. However this is not to say that they do so very often. The most relevant fact for those worried about human rights and wanting to do something about it is that courts rarely go against the prevailing majority view on the rights of minorities. Examples can, of course, be found either way, but there is little hard evidence that human rights-based judicial review makes any difference over all. So, knowing the legal niceties as to the different sorts of judicial review may not be all that important.

Another fact about human rights ‘law in action' is that the second purpose of the UK model adopted in the ACT and Victoria, the utilisation of a Bill or Charter or Convention of rights to direct those providing administrative and social services, can have considerable consequences in the way that services are delivered. Nearly all the alleged benefits of UK style Human Rights Acts that are clearly benefits arise from the effectiveness of using official statements of human rights to improve the quality of government and other public services in ways which do not involve judicial review or court intervention in any way. One alternative model therefore is for Australia to enact a national bill or charter of rights that has educational, administrative and political functions without the controversial mechanisms of judicial review. Such a bill could feature in the terms of reference of parliamentary committees that scrutinise prospective legislation and enhance the role of bodies such as the Australian Human Rights Commission. This would make for a more democratic bill of rights and one which could incorporate a much wider range of social and economic human rights than judicial review models could take on board.

It is important that those interested in human rights protection and promotion in Australia should be aware of how these alternative models do and might work. I will try to follow this up with further responses to the very interesting blogs that are coming in.

Bill of rights

1.. Most letters in favour of this are written by lawyers!

2. How often do we read in letters columns of how stupid some decisions handed down by the legal system seem to be. Will that change just because caes are on the topic of 'rights' No- jusdges will continue to hand down inappropriate decisions based on 'technicalities'

3. Parliament is the ONLY place where a man or woman can stand up and say, in an unfettered way, that something in society seems 'wrong' and needs fixing.

4 What we REALLY need are MP's who are better educated - more like many European parliaments, where the public EXPECTS their politician to be intelligent and well read!!

5 As is the case now-- people with money or power will always get a court or legal decision that they want. A bill of rights won't stop that.

 

But Im not wealthy or a lawyer and I'm in favour!

You say most letters in favour of this are written by lawyers but where do you get that data from?

I for one am not a lawyer. I'm a disability pensioner.

You complain about judges, but judges did not write the laws that discriminate against many different groups of people. The politicians did.

Where laws directly abuse rights the politicians and not the lawyers are responsible. Where laws leave gaps that result in peoples rights being abused again the politicians are at fault, not judges.

Australia is directly abusing or allowing to be abused whole groups of people contrary to international conventions and declerations it has signed! From the rights of Women to those of Indiginous Peoples to the rights of Transgender People and Gays and Lesbians and more meaning that currently this nation is a State of vile and pathetic Hypocracy!

We can and should and must be better than that. And by creating a functional and thorough human rights process with real strength and cogency we can do that. It must be consistent with all the rights conventions and declerations we've signed from the basic Universal rights decleration to the decleration on sexuality and gender! And because of the latter we must recognise our obligations under the Yogyakarta Principles!

Are we a nation of liars that signs one thing but do another? Or do we have the guts to start acting with integrity and fairness?

Equal rights for all. A fair go for all. A charter of rights is a step in the right direction towards a fair go for all Australians.

comment

I appreciate the concern which is been rose. The things need to be sorted out because it’s not about the individual but it can be with everyone mark123 mls

As I am not a constitutional

As I am not a constitutional lawyer, and haven't seen too much of the background documentation: could I perhaps request that you kindly clarify if the questions posed here make sense, to all you experts on human rights?

On researching the issue of what Australian rights and freedoms essentially are, I recently came across the Statute of Westminster Adoption Act 1942. It is reported that "since the implementation of this Act in 1942, the English Bill of Rights cannot be altered in any realm except by that realm's own parliament, and then, by convention, and as it touches on the succession to the shared throne, only with the consent of all the other realms".

In the United Kingdom, the Bill of Rights is further accompanied by the Magna Carta, Habeas Corpus Act 1679 and Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution.

Q. What is not clear, in this light, is whether the Australia Act of 1985 has repealed the ancient and fundamental rights of all Australians contained in the Statute of Westminster Adoption Act in 1942?

What is clear however, is that when Granville Sharp made his Representation of the injustice and dangerous Tendency of Tolerating Slavery in 1769, it was stated "the wisdom of ages has made [Magna Carta] venerable, and stamped it with an authority equal tot he Constitution itself, of which it is, in reality, a most essential and fundamental part; so that any attempt to repeal it would be treason to the State! This glorius Charter must, therefore, ever continue unrepealed: and even the articles which seem at present useless, must ever remain in force".

This now seems to be a very important question for the ongoing National Human Rights Consultation. It would seem that without a clear answer to this very question, the Australian people cannot begin to "explain the function of a legitimate government and distinguish it from illegitimate government".

Tom Campbell's picture

When does a Bill of Rights take effect?

The label ‘Bill of Rights' and its various synonyms is given to all sort of provisions. In the US it is a number of constitutional amendments that the Supreme Court can use to justify not enforcing an ordinary law. Elsewhere it is a political statement of a nation's fundamental values which all branches of government are expected to follow but which is not legally enforced. The model adopted in the UK requires courts to pay attention to the European Convention on Human Rights when interpreting ordinary legislation and to make ‘declarations' (which don't change the law) if, in their opinion, legislation is incompatible with the Convention. This is the roughly the model adopted in the ACT and Victoria. It can in effect be used to trump other laws by enabling courts to interpret laws in ways which the legislature did not intend. It does not officially ‘trump' other laws as happens in the US, but usually leads the legislature to change the law in question. It is very difficult to predict how different sorts of bills will work out in practice since a great deal depends on how courts choose to use whatever powers they are given and how legislatures respond to judicial reinterpretations and overrides.

Ending ethnocide against Australia's First Peoples

My initial posting is to add the need to end ethnocide against Australia's First Peoples to the human rights discussional agenda.

Ethnocide has been described as a process which (unlike genocide) allows the body to survive but destroys the spirit.

I have found the following information about the work of Robert Jaulin to provide a very useful summary of what has taken place in Australia since 1788:

"A long reflection on the dynamics that led to worldwide ethnocide, its different "masks", its history and, according to him, one of its earliest manifestations, monotheism, led Robert Jaulin to a complete reappraisal of the phenomenal and conceptual fields polarized by the notion of ethnocide.

This reassessment took its final shape in the 1995's work, L'univers des totalitarismes : Essai d'ethnologie du "non-être" (in free translation: "The Universe of Totalitarianisms: An Ethnological Essay on "Non-Being""). In this book, the notion of "totalitarianism" (which should not be mistaken for Hannah Arendt's concept of totalitarianism) depicts the underlying dynamics of which ethnocide becomes a manifestation among others.

Robert Jaulin defines totalitarianism as an abstract scheme or machine of non-relation to cultural otherness characterized by the expansion of "oneself " ("soi") through an election/exclusion logic. The totalitarian machine operates by splitting the universe into its own "agents" on the one side, and its "objects" on the other, whether they be individuals, families, groups, societies or whole civilizations. It proceeds by depriving the later of their quality of cultural subjects through the erosion and finally the suppression of their space of tradition and cultural invention, which mediates their relation with themselves, i.e. their reflexivity. With the mutilation of their "field of cultural potentialities", as Jaulin calls it, the totalitarian dynamics transforms its "objects" into new "agents" of expansion, reduced to a mock self-relation defined by the horizon of a potential election."

http://en.wikipedia.org/wiki/Robert_Jaulin

The work of Pierre Clastres "On Ethnocide" also needs to be read by those who wish to understand and end ethnocide.(See Art & Text 28 March May 1988).

Bruce R

www.songlines.org.au

Clastres "On Ethnocide" - pdf copy available

In order to make it available to those who wish to consider ending ethnocide against Australia's First Peoples as an important human rights objective, i have posted a pdf copy of Clastres' "On Ethnocide" at:

http://www.songlines.org.au/?p=573

 

Bruce R

www.songlines.org.au

Copy of my submission posted on songlines.org.au

A copy of my Human Rights submission "Putting First Peoples First" can be downloaded at:

http://www.songlines.org.au/?p=578

Is is an 18 page Word doc so i will not post it all here.

It tends towards a post-modern view, and questions to role of the modern nation-state (as presently constituted) in relation to the protection of First Peoples' human rights.

cheers

Bruce R

www.songlines.org.au

Submission - extremely condensed version for busy people

Given the events of the last two centuries in Australia, it is particularly important that any discussion regarding human rights begins with ensuring the recognition and protection of Australia's First Peoples.

The present consultation process needs to make a real (and not token) effort to engage with these senior indigenous lawmen in order to frame the debate on culturally fair terms, long before proceeding to finalise options and reports.

Enacting into Australian domestic legislation the United Nations Declaration on the Rights of Indigenous Peoples, perhaps under the rubric of protection of First Peoples human rights, might be one relatively easy means to ensure that this objective can be attained.

Given that the United Nations Declaration on the Rights of Indigenous Peoples removed references to ethnocide and cultural genocide, any enactment of the UNDRIP into Australian domestic legislation would need to ensure that extra provisions are added to cover the need to end ethnocide in Australian life.

Bruce R

www.songlines.org.au

Thanks

I appreciate your providing the condensed version.

And I agree that Indiginous rights and specificly ending Ethnocide and ensuring the Australian people via the government and legislation are obliged to act to preserve indiginous languages and cultures so they are a viable option for Indiginous people to personally choose to embrace to whatever extent they desire or even to personally reject for themselves free of the past and current destructive coercion of English-only education, Christianity-promoting charities and other similar measures that allow improvement of life of Aboriginal and Torres Strait Islanders only through foregoing their own culture and beliefs and languages.

To my fellow non-beLIEving Australians

As I read with interest the comments of my fellow non-beLIEving Australians and accept their general concerns about the desirability of a consultation process being free from the perception of bias I would like to make a couple of comments.

I’d prefer that the Chair not be a Priest. Indeed I’d prefer that Frank Brennan, a decent and honorable man as far as I can tell not be a Priest, but he is, and as he is he is doing the honorable thing to make his potential bias open – its right there for all to see at the front of his first name.

Prime Minister Kevin Rudd too, is a self confessed Christian. It would be great if decent human beings (like these men in my view) didn’t require beliefs in deities to bolster them but we humans aren’t there yet and we have to work with what we have.

I would like to call on my fellow non-beLIEvers in the supernatural to detail their particular concerns and frustrations relevant to their human rights on the public record because it is empowering and instructive to others to see them.

Religious beliefs do do worldly harm in Australia. They dumb down the debate and sap the spirit even when those holding those views hold them in full sincerity. Having parliament start off with a prayer seems to me akin to going into surgery with the theme from Play School sounding in the background.

For example people will recall Senator Brian Harradine’s position and sometimes influence as a vote in the balance when governments wished to get legislation through the Senate. Prime Ministers could trade off matters in one area for his special interests in other areas. It was all part of the "making of sausage".

Brian Harradine, god bless him, felt, as John Howard did, that human life begins at conception. (I’d point out that live sperm and ova are necessary and, like cancer cells, forms of human life too). It was his view that embryonic stem cell research should be prohibited and that where such research went ahead and products resulted it was his view that those products should be labeled so that people with ethical concerns such as his own could chose not to use those products. And such was not unreasonable given his axioms.

So he proposed an amendment to the Therapeutic Goods Administration Act to that effect. And got it!

Problem is that, because of the way medicines are made internationally, requiring labeling of such medicines would have the consequence of making the cost of providing such medicines (determining which particular cell lines were derived from where) with labeling to Australians so prohibitive that pharmaceutical manufacturers with an eye to global markets not small national ones could realistically decide it was better to just not provide that whole category of medicine to the Australian market.

So a consequence of Harradine’s position could be in fact that by insisting on labeling he could deny others in Australia their right to choose medicines which they have no ethical objection to using.

Religiousness in parliamentarians obfuscates and makes for messy laws because faith in how the natural world is, rather than scientific curiousity about how it is, is the founding axiom.

John Howard’s Federal Cabinet had Australia join in the illegal invasion of Iraq in March 2003 because he beLIEved Iraq had weapons of mass destruction. Mere beLIEf in such serious cases, however sincere, is simply not good enough. Secular societies need a more serious frame of mind to be adopted by its key decision makers lest they undermine much of the work of previous generations in establishing treaties such as the United Nations Charter which aims at preventing the scourge of war.

Few Australians seem to appreciate how laws are made in practice and how deals are done by Federal Cabinets trading off one area (health or human rights) for other areas. Government is not as open as people imagine it to be. This is not a result of villainous characters it is a result of systemic processes that place enormous burdens on parliamentarians to be across massive amounts of material – or to at least, to pretend, in completely unconvincing ways, that they can be.

To my fellow non-beLIEvers, I appeal, demonstrate your reasonableness and participate in making this conversation here in the secular world however imperfect about human rights more real so that others like me can see you do it and take heart that policy is not left entirely to the beLIEvers.

Why are my comments no longer here ?

I posted 2 comments here about a week ago. Neither was inflammatory or off the topic or anything.

Yet today I find they have gone ?

One was merely making the comment that this mechanism is extremely limited, even flawed (and finding my comments gone doesn't help confidence in the process), to which Open Foum gave me a considered response by email, so I know it was there.

And the other was around the need for a need for a Right to Personal Information.

We need the right to see Personal Information about us held by organisations (Like CentreLink). So that we can see if there is false or misleading information held about us, on which decisions about us will be made, and can correct or annotate the information.

Is it worth writing it all again when the try was knocked off. Probably not!

Please advise why these commentshave been removed.

Why are my comments no longer here ?

Why are my comments no longer here ? I posted 2 comments here about a week ago. Neither was inflammatory or off the topic or anything. Yet today I find they have gone ? One was merely making the comment that this mechanism is extremely limited, even flawed (and finding my comments gone doesn't help confidence in the process), to which Open Foum gave me a considered response by email, so I know it was there. And the other was around the need for a need for a Right to Personal Information. We need the right to see Personal Information about us held by organisations (Like CentreLink). So that we can see if there is false or misleading information held about us, on which decisions about us will be made, and can correct or annotate the information. Is it worth writing it all again when the try was knocked off. Probably not! Please advise why these commentshave been removed.

Advisory opinions

I look forward to reading the piece by Professor Williams in the Deakin Law Review - I am away from home now and will need to find time when I get back.

Meanwhile, I do agree that the mechanism in the press release he referred to would be constititutional. It sounds rather cumbersome, but perhaps more thought can be given to how it could be streamlined in practice. I'm not sure that the HREOC is the best body to do what is described, but in principle it could do so. I'd prefer a separate body to have such a responsibility because I am not confident that the body of "human rights law" administered by the HREOC will itself always be consistent with the Charter (e.g. human rights law administered from time to time by the HREOC might contain limits on freedom of speech that are based on Article 20 of the ICCPR but which are contrary to a strong protection of freedom of speech in the Charter; such limits on freedom of speech might themselves be challenged under the Charter). To avoid the HREOC having a conflict of interest, I suggest that there be a separate body that is not beholden to the HREOC or to advocating the body of law that the HREOC administers and advocates.

However, the model is certainly constitutional, as is the sort of model I propose in my submission, which is along the same lines as what was apparently proposed by Professor Winterton.

I suggest that we turn our attention more to such models and less to the kind of dialogue model that has been discussed in the past, which even Professor Williams agrees could be subject to constitutional argument (though perhaps his article will relieve my mind on this to some extent).

Cheers,

Russell

HREOC - not

And I must get used to not calling the Australian Human Rights Commission the HREOC: it hasn't been called that for some time now. :)

What border on speech do you prefer/propose?

Currently there are many borders on free speech.

Defamation, slander and libel.

Vilification.

Incitement to crime from violence to suicide to sedition.

You mention the charter having strong protection as oppossed to the International Cpnvention on Civil and Political Rights which has these limits already existing at least partially in Australian Law of slander etc.. Exactly what limits on free speech if any do you see a strong charter as allowing?

What border etc.

In my submission - uncorrected version on the Committee's site, corrected version here http://www.users.bigpond.com/russellblackford/Submission%20to%20human%20rights%20consultation.htm - I propose simply that the relevant body (judicial or non-judicial) ask: Does the law infringe freedom of speech and expression? If so, is there compelling justification for the infringement?

The expression "compelling justification" echoes American case law. I have in mind that there must be a compelling state interest and the narrowest possible restriction. But I define it further like this to try to ensure that "compelling justification" is not given a broad meaning:

Definition of compelling justification: (1) "Compelling justification" means compelling justification in a modern, secular, liberal society, taking into account Australia's history and contemporary circumstances. Example: it is possible that some laws restricting freedom of speech and expression could be given compelling justification in Germany, given its history and contemporary circumstances, but not in Australia. (2) [...] the obligation to enact a law similar to that under investigation, in order to meet Australia's international obligations, is not sufficient for compelling justification.

I could probably live with the wording in the ACT Charter, but not with the extra verbiage used in Victoria and definitely not with the scandalously weak protection of free speech provided by the ICCPR (see my explanation of this in my earlier post on the subject).

Could you explain further?

You mention 'a compelling state interest'. What do you mean by state interest?

Can you detail your specific problems with the different wordings to show why you are happy with some and not others? Quotes from each for comparison would be good if you can.

Timeframes for consultation & inadequate consultation by HREOC

I have noticed that there are conflicting timeframes for this consultation period, with the deadline for online consultation closing today, having only been open for a period of roughly three weeks and a timeframe of the 26th for other consultation.

Is there any reason why this forum isn't open until the 26th? In the interests of full and proper consultation, would it not be in the public interest to keep this e-forum open until the 26th?

It appears that this consultation process is not highly publicised (in fact - why is there no link from the HREOC Human Rights pages?), and whether this is a deliberate strategy to avoid full engagement with the public or unintentional; either way the net outcome of having limited public input / discussion and awareness of both sides of the argument will not be acheived.

Why is the period of consultation only three weeks long for such an important topic?

Why is it that many of the submissions previously submitted to the HREOC during another period of consultation have been excluded from consideration at the panel's discretion, even if they were received in the week following the closing date? Why would this happen when consultation about human rights legislation has been continuing? It seems to make a mockery of the consultation process as a means of fully engaging with members of the public.

I hold grave concerns that the agenda to push aheads with human rights legislation is progressing, without a f.ll attempt of the HREOC to engage with the media and ergo the public to fully debate this topic in the open. Why not liaise wiith the Intelligence squared (IQ2 - St James Ethics Centre & ABC Fora cooperative) organisers and arrange a full debate on the pros and cons of such legislation with the intent of really exploring the issue? Such action would at least demonstrate to members of the public that the HREOC are committed to fully exploring the issues and let the public decide based on rational analysis rather than ill-informed guesses.

I would encourage the HREOC to extend the consultation period and install an appropriate link on their website to allow more people to engage in this consultation.

Hansel - you apparently missed this comment at the top

"The National Human Rights Online Consultation on Open Forum will run from Tuesday, 19 May until Friday, 26 June 2009, providing an extended opportunity for you to share your views."

Clarification of dates

Hi Hansel

I can see where it is confusing. Let me know if this clears a few things up, or if you have any other questions.

The National Human Rights Consultation Committee is chaired by Fr Frank Brennan and supported by a Secretariat fromthe federal Attorney General's department. They are not an initiative of what used to be called HREOC and is now known as the federal human rights commission. You can learn more at their website www.humanrightsconsultation.gov.au

Public submissions to the Committee closed at 5pm today 15 June (it launched on 10 Dec 2008, so it has been running for 6 months).

During the consultation process the Committee identified that it would be helpful to add an online forum to their repetoire of collecting the public views. The National Human Rights Online Consultation (this forum) was launched on 19 May 2009. The Committee has given Open Forum until 26 June 2009 to continue collecting public views and report on them.

So, whilst personal submissions are now closed you can keep participing via this forum until 5pm, 26 June 2009.

If you have any questions you are welcome to contact me.

Sally Rose

Blogger-in-Chief| Open Forum

srose@openforum.com.au

Submission opposing a Bill of Rights

[Please regard this as a formal submission rather than as an on-line comment:

Firstly, This was intended as a submission and it is disappointing to have the submission link closed before the advertised closing date for submissions ended - 15th June 2009 ends at 23:59:59.99 not at 17:00! I tried to submit at 23:40 but the submission link was closed - which is very legalistic considering that government employees will not look at the submissions until the start of business on 16 June 2009

2nd, I agree with comments elsewhere that this site is not user friendly, it's taken me well over 30 minutes to register and post this comment. ]

Australians do not need any new "Rights".

Our rights are adequately protected by our constitution, by existing laws and by common-law.

Any new Bill of Rights or Charter of Rights is likely to reduce rights and increase problems and tensions rather than improving things - in other words "It Ain't broke - don't fix it!"

We Australians already own our own rights, we grant the parliament the limited right to pass laws in limited areas. The Government does NOT own or control the people - rather, the people own the government and control it.

We don't need Parliaments which pass vague motherhood-and-apple-pie laws about ‘rights' whereby activist Judges can ‘creatively interpret' the laws in ways that our legislature did not explicitly intend. Such ‘Rights' laws can severely reduce our existing rights to freedom of speech, freedom of religion, and freedom of conscience, etc. As an example, take Victoria's disastrous Racial and Religious Tolerance Act: its main result has been to increase tension and limit freedom of speech with draconian "guilty until proven innocent" effect and ludicrous judgments "that truth is irrelevant".

We especially don't need new laws defining freedom of speech and religion etc. That would reduce the rights we should already enjoy - because, instead of judgments based on centuries of accumulated common-law wisdom, judges will have to decide matters of religion, conscience and belief etc, based on untried new legislation. Further, judges are trained in Law - rather than in religion, philosophy and sociology. This is one of the many reasons why the R&RT Act Vic is a disaster which resulted in the reduction of freedom of religion and speech - and why it needs repeal.

Rather than new rights for minorities such as the Mythical Society of Invisible Green Silurians (MySocIGS) we need to retain the common-law right to discriminate against, to vigorously debate and even ridicule what we believe to be a nonsense - whether it claims to be a religion or not. We also have a responsibility to exercise our common-law rights to freedom of speech, freedom of religion, and freedom of conscience to actively discriminate against behaviours and beliefs we believe to be detrimental to the common good. This may involve strong differences of opinion, but then that is what politics and religion are all about - and where freedom of speech and religion are essential for a vibrant democracy.

The normal civil laws re slander and libel and normal criminal law restraining riot, violence, intimidation, inciting to violence, etc, should apply to all Australians irrespective of religion or ‘race' or ethnic background. One law for all!

Here it is useful to point out that race is often, but not always, seen to be innate and can not be changed, whereas religion and preferences can and do change: so discrimination against people based on race is in a different category. Nevertheless, racial differences should never establish rights whereby laws favour or set ‘targets' for one ‘race' versus another. Such laws smack of Apartheid and do not foster Australian harmony. Again, one law for all!

Please, No Bill Of Rights for Australia!

Peter Newland

One Fair law for all would be good, i.e. rights.

You say you want to ensure their is free speech but there isn't free speech protections now.

You want freedom of religion but we dont have that properly now when some religions are getting preferential treatment.

You want to be allowed to discriminate, but would you like to be discriminated against?

Would you like to be forced into a sex-change without consent like some Intersex Infants are?

Would you like to be turned away from neccessary medical treatment based on discrimination like a Transexual friend of mine was?

Would you like to have DOCS called on you because of your style of clothing like a Goth in my region suffered?

You want one law for all, but it seems you want an unfair one. Thats like saying everyone must arm-wrestle right-handed, the same rule applies to everyone, but it is biased in favour of right-handed people and against left-handed people. Resulting in injustice.

You complain about the redress of affirmative action being divisive yet claim it should be ok to discriminate against people you personally believe are contrary to the common good.. isn't that an extremely divisive notion vastly more divisive than all the affirmative action programs added together?

Why we don't have one already.. Racism?

Arguments that our founding fathers were paragons of wisdom foresight and virtue are nonsense.

After all was not the argument against a bill of rights when the constitution written specifically that it would force us to treat Aboriginals as humans and Asians as equal to Whites?

Did we not decide against this heritage of racism when we voted to count Aboriginals as humans and citizens in a referendum?

So then if the primary reason of the past was Racism, and we now reject Racism, then surely the argument that we didn't have a bill of rights in the past is utterly dissmissable as any reason not to have one now when we reject the racism that was it's cause?

And vitally as we regret the results of that racism, as we have apologised for that racism, as we acknowledge that great wrongs were done by those racist policies then surely we should acknowledge that if we had had a bill of rights, if it had done exactly what was feared at the time and ensured that Australia had treated Aboriginals as humans, Asians as equals to whites etc then a Bill would have meant we didn't have to apologise as we wouldn't have had that profound wrong?

If we don't have a bill now because the founding fathers thought racism was good.

If they chose not to have it so they could enact the legislation that created the stolen generation etc and we now regret that that wrong was done then hat is an argument for a bill or charter!

Bill of Wrongs

Those First Peoples who have suffered human rights abuses may also require a clear statement, from those who have abused them in the past, which clearly demonstrates that the lessons have been learnt.

I think of this as a Bill of Wrongs (which speaks directly to its companion - a Bill of Rights).

The South African Truth and Reconciliation process taps into this kind of healing approach.

Could neve happen here in Australia of course? "Wrong? What's wrong in Australian life?"

Well, that out-moded imperial attitude for a start.

Cheers

Bruce R

www.songlines.org.au

Fr Frank Brennan's picture

Closing dates

Submissions to the National Human Rights Consultation Committee closed on Monday 15 June 2009.

If you missed the deadline to make a personal submission, and would like to participate in the consultation process, there are still two avenues available to you:

1. You can participate in an online consultation at www.openforum.com.au/NHROC until 5pm 26 June.

2. Public Hearings will be held in the Great Hall, Parliament House in Canberra on 1 to 3 July 2009. Please continue to visit www.humanrightsconsultation.gov.au/ for more information on how you can register to attend the Public Hearings.

Please note, contributions to Open Forum will not constitute official submissions, however the Committee will be considering your views in preparing their final report to government.

Father Frank Brennan
Chair,
National Human Rights Consultation Committee

Right to democratic representation in local government

The right to be represented by democratically elected Councillors in local government.

Last year, after an ICAC inquiry into corruption at Wollongong City Council, the NSW State (ALP) Government sacked all of Wollongong City Council Councillors (and Lord Mayor) despite the fact that a majority of our Councillors (and Lord Mayor) were found to be honest and hard-working representatives.

The four Councillors who were found to be corrupt were ALP Councillors.

Hand picked senior state servants were appointed, by the State government, as Administrators of Wollongong City Council, to run the Council. Local people had no say in the appointment of these Administrators.

Despite many recent statements that the reforms needed to minimise corruption are now in place, the NSW State Government refuses to consider holding a Council election until September 2012.

One credible analysis as to why this is so, is that there will be a NSW state election prior to 2012 and an ALP drubbing in a local government election would not serve the interests of that party.

Similar stories can be told across NSW (at least) where elected Councillors have been unfairly dismissed by the State Government.

Of course, there is always a need to have remedies when corruption enters into local government. However, sacking non-corrupt Councillors - and denying local people the right to be represented by their democratically chosen representatives, should be a remedy of last resort - not one of first choice.

And when it is necessary, there should automatically be a local Council election to allow local people to opportunity to decide who replaces any dismissed Councillors.

The right to be represented by democratically elected Councillors in local government needs to be protected at the Federal level to ensure that State governments cannot simply dismiss Councillors who have not been found to be corrupt or incompetent.

Corrupt Councillors must be prevented from standing again. By-elections should be held to replace them as soon as possible and as a matter of course.

In extreme cases where whole Councils are sacked, there should also be a Council election within one year when a Council is dismissed to allow local people to return their democratically elected representatives. In this situation, State governments could also require the Council to meet other conditions (such as working with an Administrator for a longer period).

See www.reformwcc.info for more information on reforming Wollongong City Council.

Bruce R

Resident of Wollongong, NSW.

www.songlines.org.au

Protection - right of community to partcipate in government

A COLLECTIVE COMMUNITY RIGHT

In considering the human rights needs for coming generations, the human right to be democratically represented in local and regional governments is one area worth some thought.

By while electing Councillors is one part of the equation, there is another aspect which has been neglected by those who benefit from the present arrangements.

Looking ahead to the time when Australia will move towards dissolving the former colonies (i.e. the States) and having genuinely empowered forms of regional government, there is a need to ensure that local communities (at the level we actually live in) have a guaranteed means of participation in what may be larger forms of local government to present Councils.

But even as things stand there is a need to protect the right of communities to have effective participation in local (and other levels of) government.

One means of doing this is to ensure recognition of the community level of what may presently be thought of as the fourth level of government - such as Precinct Committees which exist as part of a local Council's formal committee structure.

In terms of decision-making flows, this is the capillary level - finely tuned to the needs of local communities.

As such it is anathema to all those developers and politicians who have ambitions which do not originate in our local communities.

The experience in Wollongong (NSW), where Wollongong City Council had Neighbourhood Committees (as part of Council) for well over a decade, was that these monthly groupings were starved of resources to be effective and systematically ignored by a culture within the Council.

Eventually, after giving voice to community concerns year in and year out, they were unilaterally abolished by the ALP dominated WCC. Not long after that it was found by ICAC that the core of the ALP Councillor caucus and the General Manager were corrupt.

Such community based groupings as Precinct Committees or Community Boards serve to counter bad government and reduce the opportunities for corruption.

The right for local communities (below the level of elected Councillors) to have effective participation in local government by way of democratic and accountable Precinct Committees or Community Boards (as found in New Zealand/Aotearoa) of some kind is a major and important reform to Australia's system of government.

There are other models in other parts of the world - see the Macedonian Constitution (which recognises this leve) and the basic political unit (1,000 people) in the Philippines for example. Maybe the UK also has some old and new forms of local community involvement. Certainly the New Zealand/Aotearoa model is worth a look, but i do not know if that level of participation is protected in any way.

To those who say we do not need another level of government, one effective model may be to have a:

1. Federal Parliament,

2 Regional Councils,

3. Precinct Committees or Community Boards.

For example Precinct Committees should be able to:

 

  1. determine local priorities for Council expenditure regarding such ‘physical infrastructure' matters as roads, footpaths, drainage works, playgrounds
  2. determine local priorities for Council expenditure regarding projects making up ‘social infrastructure'
  3. be managers of local community lands and buildings owned by Council.
  4. be the final authority in determining what is and is not the character of the area
  5. have a role in the recruitment and promoting of senior Council staff
  6. be a necessary authority for providing community consent for ‘ordinary' development applications
  7. be a necessary authority for providing community consent to major projects of regional and State significance.
  8. and more, this is just an example.

I do not know how this individual and community right translates into the terms of the present debate, but we should not lose sight of an issue which may become increasingly important as we move into the 21st century.

Bruce R

www.songlines.org.au

Geographically dispersed communities

What about minority groups who are spread throughout the community?

They get less representation because they are a minority in every constituancy. For the elderly, the disabled, the mentally disabled, Indiginous people, subcultures like Goth and Emo, Sexuality Sex and Gender Diverse people and many many more these people are often scattered throughout the community and so do not get proportional representation compared to people based on their geographical location.

Communities of interest

Hi Bayne,

Good point and i am not sure what the answer is.

Some minority groups form effective community networks which can lobby on behalf of their members

Geographical conceptions of 'community' are only useful up to a point. You can live in an area and have very little real contact with other people.

Do we need to reconceptualise 'community' in other terms such as 'flows' (of social interaction, messages etc) as a complex mix of communities of interest?

In the meanwhile, my experience in local government in Wollongong is that the Neighbourhood Committees, which were part of Council's formal committee structure, provided a person-to-person level "user friendly" point of contact for some people (but not all) in minority groups.

Bruce R

www.songlines.org.au

A word on human rights laws

I conducted the first publicly funded enquiry for human rights for this country, thirty years ago. I have drawn short draft laws on what to do.

In essence, one is a draft law for free speech and a free press (see http://www.openforum.com.au/content/law-free-speech-and-freedom-press-australia), and the other is a draft text of a law absorbing the European Convention on Human Rights into each separate jurisdiction of each of the States and the Commonwealth, drawn for enactment by any one of them if they feel like it. They won't.

The exercise of Frank Brennan (with whom I have long been on first name terms, and have long and much admired for his personal contributions in the past) will turn out to be so much verbiage on the desert air.

Governments set out what rights they are prepared to accord to citizens, and they always reserve the right to withdraw rights, both brazenly and subtletly, when it pleases them. Citizens don't set down their rights. They suffer what is given or what is left to them by governments. The convict origins of Australia, government by soldiers and gaolers, set the tone and inclinations of our legislative environment early on and nothing much has changed. I can show how to modify things a bit, but I am sure little, if anything, will come from the hands of Frank Brennan - with all his goodwill on the issue. It is not in the nature of government in this country. We have not got even a consensus in the community on what it wants.

Jim Staples
Director, Council for Civil Liberties
Former industrial relations and arbitration judge and a leading barrister at the NSW and Federal bars

Human rights changes require a movement

I share the views of Jim Staples and was quiethly thinking how any significant changes are likely to come from a consultation process (irrespective of the personal and professional qualitites of those invovled).

The experience in Wollongong - faced with the unfair dismissal of our many honest and hard-working Councillors and their replacement by unelected technocrats - has not seen any real cry for a return to democracy from the wider community.

There is a passve submission to authority which, in my view, traces back to the days when the Governor held the whip-hand. Most people remain in their secure comfort zones and keep their heads down.

What is required for major change is a movement of some kind - and for that to be effective may require an economic/social change which reaches into those comfort zones.

It does not require the involvement of all, just a critical mass.

One metaphor i rely on is that of parts per million as requied for a healthy body. We just need to make sure it is so many parts per 20 million in order to have a healthy society.

The worry has to be, though, that the appeal of a move towards an Australian form of totalitarianism will be a prior and necessary stage historically. Mandatory sentencing in the NT was one example of this strain of Australian life.

All the more reason for getting in place protection for what rights we can while we can, i reckon.

Still, the reconciliation movement has done relatively well despite the set backs from the return of the 1950s with John Howard et al in 1996.

Bruce R

www.songlines.org.au

Media Responsibility?

Does the low level of media representation of these issues contribute excessively to public responses on these matters?

I have mentioned this consultation to many in my community. For almost all they had not heard it existed at all.

Many respond thinking that specific human rights protections already exist and are disturbed to find they do not. And others are surprised there might be a need for them thinking Australia has no human-rights issues, when I cite examples it seems they were largely unaware of them or of their importance.

This demonstrates that the media has been remiss in providing information to the public. Failing it's role as part of the pillars of democracy.

When basic issues like democracy and human rights and consultations like this are not widespread public knowledge then the media has failed. When human rights complaints and problems are unknown in the wider community beyond the groups suffering them (many of these groups left ignorant of the issues of other groups) then the media has failed.

Instead the concerns of only part of the community has the entire spotlight. Even in non-comercial media which while a little better is still substantially following the poor leads of comercial media.

This Catholic's Viewpoint

It is, I think, regretable that Father Frank Brennan's position on the Consultation is so much a focus of debate. I offer two explanations.

1. The chairmanshp of the Consultation by a clergy man or woman of any denomination makes that denomination itself the subject of debate. That is abundantly the case.

2. The impression might be created that Father Brennan's views are Jesuit views, and Catholic Church views and Catolic views in general. They are not.

I read a lot of vitriolic comment about the Catholic Church and human rights, most of which is itself a violation of the human rights of Catholics, and nearly all of which exhibits a profound lack of understanding of the Catholicism and the the Catholic Church. You don't agree? Then consider this.

The Catholic Church collectively, as both the the formal institutional body and as the body of international Catholics is bigger than government in the United States, Federal and State and probably County also. Yes, there has been shameful behaviour of some clerics and some Catholics but the people most angry about this are the Catholics themselves. The offenders ae a tiny minority but a minority that is nevertheless much too big if there was only one offender.

The Catholics of this world have a great deal in common with other Christians and we cherish that community. We have much in common with people of all beliefs who believe in, worship and serve the One God.

Slam the Churches for the errors of the tiny minority and you slam us all. I resent that injustice as much as I resent that the offenders, that tiny minority, betray and vilify everything I believe in.

One last point. The Catholics of this world, in company of Anglicans, Baptists and all other Christians are the greatest force for delivery of aid and personal service to the poor and underpriveleged in their communities. That is not to diminish the role of Rotary and other magnificent Service organsations and many members of those organisations are also Christians. Historically, Christians have been the founders and the driving force of education and health services across the world, yes even in Soviet Russia and China.

My point is, if you got mud to throw, inform yourself first and then chuck the mud, but admit that is all it is.

And I appeal to all Australians, Catholics and other Christians and other citizens, to take an independent informed point of view on these matters. My reason is that the law is facilitating science and the method of democracy: the Parliament is supreme in the making of laws and if a 'right' is not law, it is because the democratically elected law makers of this country have not seen fit to legislate it. Lobby them, persuade them, hold them to their conscience, but in the end, that is democracy at work.

Some Valid Criticisms

Firstly I am not anti-catholic. Half my schooling was in catholic schools, i have catholic family members and catholic friends (including gay, lesbian and transgender catholic friends). I support freedom of religion in Australia including the rights of catholics including freedom from vilification.

1. The criticisms of having a priest (not an ordinary catholic but a priest who is eesntially in the employ of an organisation with obligations to that organisation) in a position of authority in the process is, where at all valid, one of there being a possible 'conflict of interest'. Exactly the same as if they had a potential finacial interest, or family relationship interest etc. We regularly have politicians, judges and all manner of officials excuse themselves from cases and situations where they have a conflict of interest. We make politicians sell shares in companies who fall under their jurisdiction.

2. Issues regarding the crimes of a minority of catholic priests are raised here because they involve cover-up and non-reporting of crimes by the authorities of the church. The Authorities and systems of power of the catholic church or any other religious organisation should not be beyond valid criticism! One may criticise these without vilifying the entire congragation of that faith or the faith itself. As the church authorities can potentially exert influence or pressure over priests in positions of power such as this comittee there exists a possibility of leverage being used to try to influence a decision. Whether that would or would not happen the possibility concerns some. As the church has threatened to excomunicate politicians who vote contrary to it's wishes in the past it may indeed be a valid concern. http://www.theage.com.au/news/World/Pope-warns-politicians-who-back-abortion/2007/05/09/1178390394393.html

Personally I hope and even trust that Father Brennan has far more integrity than to give in to such corruption were it to occur. However the possibility that it could occur is sufficient for the possibility of a conflict of interest to be worthwhile discussing just as it would be if the environment minister had to decide on the future of a development owned by a company they had shares in.

3. the pope called Transgender people like me a greater threat to mankind than global warming! http://news.bbc.co.uk/2/hi/europe/7796663.stm Contrary to growing bodies of scientific evidence http://news.bbc.co.uk/2/hi/health/7689007.stm http://jcem.endojournals.org/cgi/content/full/85/5/2034 Now I don't mind what the pope says about catholic doctrine, that doesn't bother me. But when the pope makes a vilifying statement about me contrary to the scientific evidence and potentially inciting hatred (you'll note bias-related crimes against catholics are proportionally insignificant compared to transgender which is one of the most vilified and assaulted and murdered groups on the planet today) and there exists a possibility that a conflict of interest could allow further human rights abuses against me that makes it valid for me to raise such criticisms. I do not condemn all of catholicism because of this statement. I know many catholics who disagree with the popes comment. And I have hope and trust that Father Brennan would not let such pronouncements influence his carrying out his duty in this process. But I have a valid reason to be concerned about that.

Now I'm glad Catholics are involved in this discussion. I support their freedom of religion and all their rights. I do not judge all Catholics by the human rights abuses of some authorities within the church who shielded and sheltered child abusers nor by the vilification comitted against me by some of them including the current pope.

As for the current system, thats not good enough. That allows popular bigotry against small groups of people to hold sway and maintain sway. And that is exactly what has been happening for Transgender Intersex Gay Lesbian and Bisexual Australians, for religions with smaller memberships too and far more. Democracy was never intended as a way for a large group to steal from, stomp on, abuse and harm smaller gorups with impunity.

Thats why at the advent of modern democracy rights went hand-in-hand as an essential part of the democratic process. One left out in Australias past so we could continue to misstreat Aboriginal and Asian Australians. As we have decided that was wrong then isn't it about time we plug the hole in our democratic system so small groups dont get abused like they have been?

I say it is time, for equality and rights for all Australians whether Catholic, Muslim, Bhuddist etc Straight or Bi or Gay or Lesbian, Cisgender or Transgender etc. There is nothing unfair about that. There is nothing unfair to a democracy or in a democracy for the power of the majority to have the tiny limitation of it's still great power that there are some few things its not allowed to do to minorities or individuals.

Freedom of speech and X-rated material

Currently, it is illegal to sell, rent or publicly screen X-rated films or videos in all states of Australia. X-rated material is basically anything that is sexually explicit. This means that informed, consenting adults who live in a state as opposed to a territory (in other words, over 97% of the Australian population) are not allowed to buy or rent a sexuallly explicit DVD in their home town or go to a cinema to watch a sexually explicit film. This is a gross violation of the right to freedom of expression.

I hope that Australia does get a federal charter of rights and one with a strong protection of the freedom of expression that will overturn this ridiculous and paternalistic ban on X-rated material in all the states. This is not to say that pornography or other sexually explicit material is good or worth watching. I am simply saying that it is completely unacceptable for the state to restrict the right of adults to see, read and hear what they want when there is no good justification for it. It is completely intolerable that this material is banned simply because some in the government find it offensive or in bad taste.

Speak up Australia

I , like many, am a "working class" Australian that has up to now been sitting on his hands watching various politicians and governments of Australia legislating our human rights away. Weilding a powerful propaganda machine, based on misinformation, not seen since the Second World war to implement their changes (Made easy by targeting a class of people who have made little comment in their defence). Waiting for our Civil Liberty Groups, Law Societies and the Judiciary , the academics of our society, the protectors of our rights, to stand up and repel the invasion of our rights by the Government.

Well I've waited long enough, the people upstanding have been few, they deserve our full hearted support and help. Now thanks to this opportunity I can start to voice my opinion and I hope it will entice the many like me, to stop waiting, we must let our voices be heard.

I stand against the Governments endeavours to legislate our freedom, our way of life and our childrens future rights away. Prosecute the crime not the people!

South Australia - Serious and Organised Crime (Control) Act 2008

New South Wales - Crimes (Criminal Organisations Control) Act 2009

Queensland - Crime & Misconduct & Summary Offences Amendment Act 2009

The Governments in various states have legislated and begun to legislate against bikies. All these pieces of legislation have been passed through the various parliaments as "Anti Bikie Laws" Strangeley enough Outlaw Motorcycle Club, Gang or even bikie is not mentioned in any of the Legislations. The fact is they are for all Australians.. In fact the South Australian Police commissioner revealed recently, 20th June 2009, that in fact these laws are for all.

"organised crime" means activities of 2 or more persons associated together solely or partly for purposes in the pursuit of which 2 or more Schedule 1 offences are

committed, the commission of each of which involves substantial planning and organisation;

Western Australia-Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001

These legislations are unwarranted as current legislations and our current legal system have more than enough power to deal with any of the situations that the respective Governments have suggested the need for. In fact if you look at the NSW legislation, (a legislation that went through both houses in one day, unbeleleivable). As the legislation was invoked there was a large amount of arrests made. None had anything to do with the new piece of legislation, it has not been acted on as yet, but with existing laws.

These legislations even prohibit people from engaging in their employment in various trades and services. How can you on one hand brand them all criminals and then on the other deprive them of an income? Last time I looked it wasn't illegal to be in the motor repair industry . Surely it would be in our best interest that people can go to work to make an honest otherwise aren't we forcing them to make money from other means? After all everyone has to put food on the table.

These legislations promote the use of secret evidence, conviction based on the "balance of probabilities" and control orders. These legislations have been enacted so as to create precedents for the use of secret evidence, "the burden of proof" and control orders so these principles can be leached into our current legal system. Based on the "burden of proof" and full disclosure. There tentacles will spread throughout our legal system

Control orders and secret evidence had been, up to now, used in the UK. However a full panel of nine law lords made a unanimous decision recently that control orders could not be issued on secret evidence alone.

In his judgment, Lord Hope of Craighead, said: "The principle that the accused has a right to know what is being alleged against him has a long pedigree . . . a denunciation on grounds that are not disclosed is the stuff of nightmares. The rule of law in a democratic society does not tolerate such behavior." "the slow creep of complacency must be resisted" and that to protect the rule of law, courts must insist the person affected be told what is alleged against them.

Lord Phillips of Worth Matravers, the senior law lord, said the case raised wider concern than the treatment of the three men. "If the wider public are to have confidence in the justice system, they need to see that justice is done rather than being asked to take it on trust," he said. "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him."

Chris Huhne, the Liberal Democrat home affairs spokesman, said: "Today's unanimous ruling clearly states that control orders are a fundamental infringement of human rights and an affront to British justice. It is unacceptable to deny a person freedom without even telling them what they are suspected of.

"We do not need to sacrifice the freedoms we have fought so hard for. We must not become what we are fighting. This discredited regime should be scrapped immediately. The government should focus instead on making it easier to prosecute terrorists by making intercept evidence available in court."

There is, as one Law Lord explained, an easy way in which the Government could ensure that control orders are legal: opt out of the Convention on Human Rights. But the Government has been "unwilling to face up to whatever may be the political consequences" of taking that step..

The Law Lords quoted the European Court: we are bound by its decisions, and that Court has elevated the right of the accused to be informed of the detailed evidence against him into an absolute principle that cannot be compromised.

Lord Lloyd of Berwick, a former Law Lord who reviewed terror legislation in the 1990s, told peers "In particular the defendant must know, if he is to have a fair trial, the case that he has to meet".

Secret evidence undermines the tradition of open justice this country is famous for. It is unreliable, unfair, undemocratic, unnecessary and damaging to the integrity of Australia's courts. I believe they contravene the following articles of the Universal declaration of Human Rights.

Article 7 : All are equal before the law and are entitled without discrimination to

equal protection of the law. All are entitled to equal protection against any

discrimination in violation of this Declaration and against any incitement to such

discrimination.

Article 10 : Everyone is entitled in full equality to a fair and public hearing by an

independent and impartial tribunal, in the determination of his rights and

obligations and of any criminal charge against him.

Article 11 (1) : Everyone charged with a penal offence has the right to be presumed

innocent until proven guilty according to law in a public trial at which he

has had all the guarantees necessary for his defence.

I also thought we processed people through our legal system and punished the guilty accordingly, based on weight of evidence. They were then sentenced and hopefully rehabilitated. Their punishment dealt with they were encouraged to re-enter society. They are deemed to have paid their price for their indiscretion. Why should they be penalized for the rest of their life? These legislations penalize innocent people for the rest of their lives, guilt by association..

I have experience with Outlaw Motorcycle Clubs. I have found, for the most part, they are as they portray. Like minded men with a passion for motorcycles and partying. As we know there is good and bad in all walks of life. We have corporate high flyers that drive our economy forwards whilst operating within safe boundaries and those that steal and mislead us. We have religious bodies that take care and promote faith amongst us and those among them that desicrate that faith. We have police that serve and protect us and of course we have those that destroy that in so many ways. Just like Mark Standen the assistant director for the NSW crime commission and his involvement with a 120 million dollar ice importation. Good and bad are in all walks of life.

I have come to the conclusion, in order to safeguard our human rights, we need a Bill of Rights.

"I read a lot of vitriolic

"I read a lot of vitriolic comment about the Catholic Church and human rights, most of which is itself a violation of the human rights of Catholics"

Merely criticising an organisation, even in a robust way, is using your freedom of speech. That is not violating human rights. I am very concerned that such a thing can be said in Australia in 2009 (though, of course, I defend to the death the freedom to say it). It evidences, once again, that freedom of speech is under attack from people who don't want their favourite organisations and ideas to be criticised. Once you say that using freedom of speech to criticise an organisation such as the Catholic Church is itself a breach of human rights you are well on the way to a draconian form of state censorship.

I must also say that I am bitterly disappointed at the choice of speakers and topics for next week's conference. None of it suggests that issues relating to individual liberty and freedom of speech have been taken seriously by the committee. Having looked at the draft program, I see that no speaker or topic has been chosen that reflects a serious regard for the issues I raised in my submission. I've contributed to this exercise constructively and in detail, but having looked at the conference program I have now formed the view that it is unlikely that anything good can come of the whole exercise. A pity - it had such potential.

Fr Frank Brennan's picture

A vote of thanks

As this forum draws to a close I'd like to extend my thanks to those who have participated. Thanks to Sally Rose, Olga Bodrova and the staff of Open Forum for running this for the National Human Rights Consultation. Thanks also to Tom Campbell, George Williams, Nicholas Barry and Phil Lynch for their expert input.

Mostly though, thanks to all of you who have posted here. Your contributions are important and will go a long way towards contributing to what has been a phenomenal national debate over human rights. Never before has the Australian public been asked explicitly to tell the Government what they think about human rights. It's a landmark occasion and a great example of a healthy democracy that can ask itself, 'how are we going?' and 'how can we do better?'

Whether it has been broad calls for better human rights awareness, specific pleas for assistance coming from Indigenous and other marginalised communities, or the cautioning voices of those who are concerned about the future direction of human rights protection in Australia - your views have been noted.

For now though, this marks the close of the online forum component of the National Human Rights Consultation. After the public hearings held at Parliament House next week, we'll be battening down the hatches for the coming months to reflect upon and consider everything we've heard and present our report to Government. Keep an eye out on our website http://www.humanrightsconsultation.gov.au/ for updates on how we're going.

Thanks again.

Signing off. Father Frank Brennan
Chair,
National Human Rights Consultation Committee