Is it time for a bill of human rights in Australia?

What does a BoR's mean to us and what lessons can we learn from other similar countries?

While there has been a channel for consultation on the need or desire for a Bill of Rights there has been little in the way of public debate or discussion. Indeed, there has been little in the way of mainstream media outlets reporting on the consultation process or the very need for a Bill of Rights in Australia. The first question should be, therefore, do we truly understand what the concept of a Bill of Rights is? While the second question should be – do we understand why we need it? I mean, who is it for and what will it mean in terms of the daily working and living environments of all Australians? When New Zealand enacted its Bill of Rights into Law in 1990 some argued that it was more than a century late – others argued that it had come time for New Zealand to embed human rights into the legislative process while others wanted one simply to show that the country, as a democracy, was proving it was doing something about the Human Rights process.

Far from being a law for a law, the process highlighted that while a Bill of Rights was a fundamental tenant of a modern democracy, the reality was that legislation on a range of other matters had already super-ceded what a Bill of Rights was originally intended for. That is, equity in the workplace and between the sexes, anti-discrimination practices, an end to racism and enshrining the right of the individual. In each of those cases it is evident that pre-existing legislation already protected the rights of the citizen and the individual. The New Zealand Bill covers a range of different of rights:

* Life and the security of the person: such as you have the right not to be deprived of life, subjected to torture, cruel treatment or punishment etc – you also have the right to refuse medical treatment

* Democratic and civil rights: freedom of expression, freedom of peaceful assembly, freedom of association etc

* Non-discrimination and minority rights: free from discrimination on the grounds of sex, religion, age etc

* Search, arrest, and detention: you have the right not to be subjected to unreasonable search and seizure, arbitrary arrest and detention

* Criminal procedure: access to a minimum of rights in respect of criminal procedure

* Right to justice: a fair hearing All

New legislation is checked to ensure it complies with the Bill of Rights, although sometimes this could be controversial as was the case with the new anti smacking laws – which calls into question whether or not a parent has the right to smack their own child, or whether the right vests in the child not to be smacked – in which case, who does the human right apply to and is there a test that seeks to answer the question of who's human rights super-cede those of the other. You also have to be careful to consider that a new Bill may give rise to those who believe that injustices have occurred in the past – for example, this could be a path for redress as has been the case with New Zealand Maori, even though there is a defined process when it comes to Treaty of Waitangi claims.

So, what does a Bill mean to Australia and should we be looking at a broad and detailed Bill of Rights that enshrines those things we hold dear? Or, is it more of a statement of intent because the rights we hold dear have already been enshrined in legislation that protects the vast majority of rights that are now present in a developed first world countries. My view is we should be looking at those nation states who have enacted Human Rights legislation in the last 20-25 years and who's economic and democratic processes mirror, to a large degree, our own.

The test is important because you want to ensure that the vast majority of existing legislation is aligned with whatever new Bill is adopted and passed. Importantly, and much like the New Zealand model, it is important to ensure that any new legislation is cross checked to ensure that the rights of Australians and humans in general, are not dismissed at the whim of a new Government policy. This is fundamentally important at a time when more and more legislation will be passed in Australia that is focused on the environment and climate change – in fact, I would be so bold as to suggest now is a time to develop a new inalienable right – the right to a clean and green environment, free from pollution and the problems it causes.

So, a Bill of Rights can be broad and in line with existing legislation – nothing needs to change other than we now have a document that centralises, on one piece of paper, what we are all entitled to – in fact, it would be a good thing for each of us to understand those rights in a clear and concise fashion. On another front is how business and industry interact on the human rights front and what each of us should be doing to promote human rights both at home and when we move offshore into new markets – usually large volume developing countries such as Indonesia, China and India. Drake International recently joined the United Nation Global Compact – I spoke at the annual UNGC conference in Istanbul, Turkey just this month. The UNGC is a collaboration between business and industry, the United Nations, nation states and affiliated organisations. A key Principle of the UNGC is focused on human rights:

1. Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and

2. Principle 2: make sure that they are not complicit in human rights abuses.

Each of us, members of business and industry, should be signing up to our own Bill of Rights, and not just putting forward statements of corporate social responsibility – this could be covered by membership of the UNGC. For each new market we move into, ensuring that we are enforcing the protection of workers rights, ensuring equality in the employment process and non-discriminating employment practices. It just so happens that there are other Principles that align with what a modern day Bill of Rights should take into account such as protection of the environment and the protection of migrants. So, all of that aside we come back to the fundamental question of a Bill of Rights for Australia and what form it should take. Firstly, we do not need a complex and complicated piece of legislation.

We need something that is clear and concise, open for interpretation where required and closed for interpretation in reverse when a fundamental right needs to be not only enshrined, but protected. Before the Bill is enacted we need to ensure that all relevant existing legislation complies and, where it does not, this presents an opportunity to clean it up. In addition, we need to ensure that State and Territory based legislation and laws relating to justice and criminal procedure aligns. Post the implementation of a Bill of Rights we need to ensure that there is a comprehensive education campaign to the general public, but also for our policy writers and lawmakers – they will need a "how to guide" on ensuring they know and understand what new laws need to comply with. Finally, and before we even get there – we need a broader public discussion and debate on what we, as citizens, want in our Bill of Rights – what does it mean for us and what do we want it to mean for us into the future.

For the time being, that public discussion has not taken place in the broader communities, towns and cities, schools and workplaces across this great nation. Maybe the discussion should start in our schools – after all, this next generation are more globally astute and aware of their world than we before them – technology, after all, is an enabler of debate and discussion, we need look no further than young people in Iran and how they are using technology to unveil why they are so passionate about the democratic process and the right to have their vote counted. The future, however, is about rights – not just for the individual, but for us all.

For a copy of my UNGC Speech email mtukaki@au.drakeintl.com