We Need an Australian Bill of Human Rights
I am in no doubt that we need to enact an Australian Bill of Human Rights. The behaviour of State and Federal Governments over the past decade attest to that.
Thomas Jefferson’s famous aphorism ‘The price of freedom is eternal vigilance‘ applies to the struggle for the protection of human rights.
The struggle for a single law protecting human rights is, of necessity, eternal. There will always be people who will argue that it is unnecessary or unworkable or too costly and or deny that the unimaginable happens.
We delude ourselves when we argue that human rights abuses haven’t, couldn’t, wont, happen in Australia, committed here and elsewhere by Australians. It has happened and it will again. It is part of the human condition it seems. So we must protect ourselves from ourselves.
I am also in no doubt that we need a judicially enforceable Act. I don’t want complaint about a human rights abuse adjudicated by anybody other than an appropriate member of our independent judiciary.
I’ve read and been more or less unimpressed by the arguments against the idea, by "eminent illustriati," including at least one past premier.
I am especially unimpressed by their argument that such a Bill will inflate lawyer’s incomes. A judicially enforceable Bill of Rights is more likely to reduce lawyer’s incomes by providing a) the offender, with advice of his possible transgression, thereby making him evaluate his intentions, b) the offended, with clear and immediate remedy and c) the adjudicator, with the means of an early resolution.
I am also in no doubt that we need a judicially enforceable Act. I don’t want complaint about a human rights abuse adjudicated by anybody other than an appropriate member of our independent judiciary.
I’ve read and been more or less unimpressed by the arguments against the idea, by "eminent illustriati," including at least one past premier.
I am especially unimpressed by their argument that such a Bill will inflate lawyer’s incomes. A judicially enforceable Bill of Rights is more likely to reduce lawyer’s incomes by providing a) the offender, with advice of his possible transgression, thereby making him evaluate his intentions, b) the offended, with clear and immediate remedy and c) the adjudicator, with the means of an early resolution. But in any case one may legitimately ask "So what ?" Access to independent adjudication to right a wrong is a citizens Right. Such suits happen infrequently now no doubt because of the cost. Thus Governments can play fast and loose with citizens Rights, bringing down badly framed and worded legislation. No, that particularly flaccid argument strengthens rather than weakens the case for the proposed Bill.
And the argument that Australians don’t want "unelected" judges to interpret "the will" of the "democratically elected" Parliament and "make law" would be laughable were it not that it may persuade someone gullible enough to fall for it. This is an argument to frighten the populace into believing that an independent learned and wise judiciary and the rule of law, may indeed be a threat, rather than one of the vital pillars underpinning our democracy. This kind of proseltysing falls under the gender of propaganda.
Such arguments serve only to strengthen my belief in the necessity of an Australian Bill of Human Rights. And my reading of our history gives me confidence that if asked properly, the people will vote yes to the idea. We don’t like governments or political parties which play fast and loose with our freedoms and which would keep us in the dark and feed us manure.
What should be included in the Australian Bill of Human Rights
1. The minimum content should be the International Bill of Human Rights, on the basis that the Australian Bill can be amended in the same way as any other legislation. I understand that such an Act would be superior to all other laws.
Federal – State Superiority
2. While the federal law should be superior to state law, States may extend (but not limit) the coverage of the Federal Bill.
Some matters for special attention
3. Our Right to protection from assault and torture by State and Federal Security services. There is a rising tendency for Federal and State Governments to push through disturbing legislation in ad hoc knee jerk and so-called emergency responses to low level threats; legislation which removes basic human rights that have been hard won over centuries from firstly British then Australian Governments (witness: legislation relating to illegal asylum seekers, terrorism, bikies, security lockdowns of our cities to protect favoured "world leaders").
Security services are given extraordinary powers and weaponry transforming into paramilitary forces presenting a high level threat to our peace, safety and human rights. Increasingly they are turned out for protest marches and even lone, mentally ill individuals; we see and hear of them wielding truncheons, extremely painful and life threatening weaponry, wading into crowds, using strong violence, bludgeoning civilians, pushing even the weak to the ground. Police also routinely use violent interrogation techniques. These behaviours should be halted. They are utterly unacceptable to Australians. Our security services should not be the instruments of "bad government". It may be unimaginable but it happens.
The Australian Bill of Human Rights could protect the people from "bad government" by making freedom from assault and torture of all kinds directly or indirectly, including from our security agencies here or overseas a basic human right, including freedom from unwarranted search, damaging and destroying property during warranted searches, verbal, physical, emotional abuse assault and violence in all their forms.
4. Our Right to democratic governance. The operation of our parliamentary democracy is subverted by the party system and coercive voting practices operating in our parliaments.
The Australian Bill of Rights should extend our right to a secret ballot to cover our parliaments.
5. Our Right to equal access to public services of equal quality regardless of our place of residence. We need people to live and work in rural Australia. They are vital to our economy. Indeed it is our Right to live wherever we choose. Yet the rural populace is penalised for living outside the conurbations by being provided with limited access to vital public services: such as health care, communications, education, public transport.
The Australian Bill of Human Rights could encourage governments at all levels to fulfil their obligations to the Australian people by making equality of access to public services a human right of all Australians.
6. Our Right to a fair share of public services regardless of our party political preferences. Our Governments have been guilty of subverting our democracy by pork barrelling and rewarding electorates which have voted for them, neglecting electorates which voted for the opposition.
The Australian Bill of Human Rights could encourage Governments to stop these bad government behaviours by making a fair share of public services a basic human right.
Some opponents of a Bill of Rights say that it isn’t necessary in Australia on the basis that many, most, or all rights are protected in other legislation or under Common Law or, I think, the Law of Tort, or are implicit, embedded in our culture and such. This being so, then such a Bill would serve to improve the quality of law by defining all rights together in one place thereby improving accessibility for the common man and also the efficiency and economy of the law at the same time.
Some opponents of a Bill of Rights say that if we are to have such a Bill, it should be "A Bill of Rights and Responsibilities". Let those people put this idea up for consideration by itself. Opponents of a Bill of Rights are free to propose a separate or companion Bill of Responsibilities but only after we get our Bill of Rights. However before we go there, I would like to propose a Bill of Obligations for Australian Governments and Parliamentarians. I think that the latter would be far more rewarding in cost-benefit terms.
Finally an Australian Bill of Human Rights would signal that the Australian Parliament and Government hold the people and their guests in high regard and respect to the degree that it is prepared to pass a special law protecting them from themselves and all who serve them.
In closing I profess no professional expertise, skill, experience or even extensive reading in arguing the forgoing issues. I am merely exercising my right to speak up. However I admit to being encouraged by the arguments presented by various eminence grise.
Of course I welcome comment.
An architect whose childhood background was the floodplains of the Burdekin with schooling in Toowoomba and Brisbane, Bill Miller has enjoyed an intensely focused career, developing health service infrastructures and facilities for departments of health in England, Canada and across Australia. Now he is idling on fabulous Jervis Bay, nurturing a wider range of interests.
Richard J Wood
June 22, 2009 at 9:00 am
The high price of constitutional entrenchment
The debate about whether Australia should implement a Bill of Rights is very much alive, invigorated by concerns about the government's response to terrorism. In October 2005, New Matilda (an online magazine and policy portal) and Malcolm Fraser launched a draft Bill of Rights at Sydney's Town Hall. This met with support from Labor's legal affairs spokesperson Nicola Roxon, who told journalists that "[w]e must work to protect the freedoms we have taken for granted in our western democracy".
This talk is nothing new — the merits of "constitutionalising" rights have been debated since before Federation. Today, Australia is the only Western nation without some kind of charter of rights. In 2004, one Australian jurisdiction started swimming with the tide: the Australian Capital Territory's Human Rights Act came into force on 1 July 2004. It protects a number of civil and political rights, including the right to freedom of movement, life, liberty, privacy, equality before the law and freedom of expression.
But contrary to supporters of Bill of Rights amendments, there are already significant current protections that operate to safeguard human rights. Constitutionalising those rights would undermine these existing safeguards and damage our democratic and liberal political system and culture.
CURRENT HUMAN RIGHTS PROTECTIONS
According to James Allan, if Australia were to adopt a bill of rights, "it would certainly be intended to be on a confirmatory basis, to confirm and preserve the rights and freedoms already believed to exist". This is because Australia is not plagued by endemic human rights abuses — "the preponderance of Australians is well off and knows it". Extensive human rights protections are already present, if not always explicit.
The first and most effective bulwark against the abuse of human rights is a strong democracy. This point was made by Daryl Williams (then Federal Attorney-General), who stated that "democratic institutions are the bedrock of human rights protection in Australia". Australia has an enviable system of representative and responsible government, which is a powerful protection against human rights abuses. Furthermore, the independence of the judiciary (already entrenched in the Constitution) helps to preserve the rule of law.
As well laying the foundations for democratic government, the Australian Constitution contains a number of specific provisions protecting rights. These include s.116, which protects religious freedom, and s.117, which prohibits States from discriminating against an individual on the basis that they are a resident of a different State. The High Court has also held that certain freedoms are implicit in the text and structure of the Constitution, such as the implied freedom of political communication.
The common law has also operated to protect rights, as has been seen in landmark cases such as Dietrich (which concerned the right to a fair trial) and Mabo. In addition, both State and Federal parliaments have legislated to protect human rights. At the Commonwealth level, the parliament has enacted the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992, as well as creating the Human Rights and Equal Opportunity Commission and the office of the Federal Privacy Commissioner. While the individual merit of some of these cases and legislation may be in dispute, the capacity for the parliament and judiciary to protect both an existing and an expanding set of rights is clear.
Underlying the democratic, constitutional, common law and statutory protection of human rights is a culture that respects liberty and equality. Ultimately, it is this culture that protects Australian citizens against human rights abuses. A Bill of Rights would be a hollow gesture, which, at best, would entrench the status quo. There are only a handful of countries without a charter of rights, and yet there are many nations that perpetrate gross human rights abuses. The efficacy of a statement of rights is dependent on a climate conducive to enforcement. Ironically, a Bill of Rights would be most enforceable in a nation (like Australia), where it would also be least necessary.
COURT IN THE MIDDLE — THE ROLE OF THE JUDICIARY
It is difficult to imagine a charter of rights that does not rely on the courts, at least to some extent. Obviously, the judiciary's role will vary, depending on what sort of bill of rights is implemented. For example, in the United States, if the Supreme Court finds that governmental action or legislation contravenes the Bill of Rights, that action or legislation is invalid. By contrast, other jurisdictions allow laws to remain in force, irrespective of the judiciary's finding as to whether those laws are consistent with the relevant bill of rights.
Under the Human Rights Act 2004 (ACT), the Supreme Court can declare that Territory laws are incompatible with rights protected under the Act. Such a declaration, however, does not affect the validity, operation or enforcement of the law, or the rights or obligations of any person. Instead, the matter is referred to the Attorney-General, who must prepare a written response for presentation to the Legislative Assembly. This is in itself a bizarre and seemingly inefficient process.
Regardless of the judiciary's exact role, their involvement in interpreting and applying a Bill of Rights is highly problematic. By necessity, the provisions used to protect human rights are broad. For example, the First Amendment of the United States Bill of Rights provides that "Congress shall make no law … abridging the freedom of speech", and the Human Rights Act 2004 (ACT) states that "[e]veryone has the right to hold opinions without interference". In the abstract, it is difficult to know exactly what such provisions protect, or how far they extend. It falls to the courts to give such lofty statements meaning, and to apply them to people, circumstances and events.
Judges are also saddled with the task of resolving conflicts between two or more rights. For example, one person's "freedom of expression" may collide with another person's right to "enjoy his or her culture". The most difficult and significant questions about human rights are thus deferred to the courts.
Once a Bill of Rights has been implemented, it is judges who stand at the coal-face, not Parliament. The judiciary is unelected and unrepresentative. Therefore, their significant role in articulating human rights is undemocratic. Furthermore, the involvement of judges in this sort of task creates problems for the judicial system itself, because judges are dragged (often reluctantly) into highly politicized disputes.
THE PRICE OF CONSTITUTIONAL ENTRENCHMENT
There is a danger that once particular freedoms and values are entrenched in the Australian Constitution, they will be set in stone. Successful referenda are few and far between — since 1901 there have been 42 proposals for constitutional change, but only eight have gained the requisite "double majority". It is appropriate that changes to our system of government are rare. However, it is much less desirable that human rights are constitutionally entrenched, because Australia's understanding of rights is constantly evolving. We cannot imagine the kinds of liberties that will need protection in the coming century and beyond. For this reason, it is much more sensible to place our trust in the mechanisms that already protect human rights, but are flexible enough to reflect change over time. If Australia were to institute a Bill of Rights, it would eventually stagnate, and could inhibit the freedoms of future generations.
Furthermore, a Bill of Rights could have a chilling effect on the rights of Australians today. Several commentators have observed that "to define a right is to limit it". The process of articulating and entrenching rights is selective — rights are restricted through the language that is used and the protections that are omitted. Once implemented, a Bill of Rights could be seen as the high water-mark of rights protection — it could become a standard that is usually met, but never exceeded.
Many people are bewitched by the idea of an Australian Bill of Rights, which is promoted as a neat solution to a raft of complex problems. The reality is that there are no easy answers to difficult questions. Australians currently enjoy substantial human rights protections, which are secured by statute, common law, the Constitution, our democratic system, and, most importantly, a culture that respects liberty and equality. The implementation of a Bill of Rights is unnecessary. It would force the judiciary into a role that should be played by elected politicians. Furthermore, the process of defining human rights could limit the scope of those rights, both now and in the future. Human rights are hard work. If we are serious about protecting them, we should continue to swim against the tide.
Bill Miller
June 26, 2009 at 7:30 am
Response to Richard Woods Comments
In response to Richard Woods comments on my blog,' We Need and Australian Bill of Human Rights' Open Forum, 22/06/09
Here is a short miscellany of reasons why we need an Australian Bill of Human Rights:
Is not the foregoing sufficient reason for an Australian Bill of Rights? Is it not less likely that the foregoing abuses would have happened had there been an Australian Bill of Human Rights enacted at the time?
An enacted Bill of Rights does not amount to "constitutionalising" them as Richard Woods implies. Our Constitution is far from a model instrument for anything which it covers, let alone a national Bill of Rights. However when the Constitution is updated, it will be informed by the Bill of Rights.
An Australian Bill of Rights should stand by itself. As any other Act it should be very accessible and updateable as our needs change. We can expect Australia's Bill of Rights to become recognised as our single most important, cherished and very useful law.
Some human rights protections, explicit and implicit, are scattered here, there, in legislated and common law varying between Federal and State jurisdictions. Some are explicitly protected by the Constitution, but many are merely in our mythology and folklore. Currently, only one state and one territory honour their citizens and guests with human rights legislation; four states and one territory do not. Thus in Australia, we are not equal before the law. Is this ad-hoc mish-mash what we want?
I understand that some legislation our real and imagined Rights have been limited and recently seriously weakened, reversed or obliterated, as our politicians, wittingly or unwittingly, snuff them out by changing the rules of evidence and even the presumption of innocence.
How many of us know which of our Human Rights are protected in law? How many know even those listed in the International Bill of Rights, a useful model for consideration in framing or own legislation? How can we find out explicitly what our Australian Rights are? If our ‘rights' are protected here, there, anywhere, has any authority indexed them simply to make them more accessible? Has any authority tabulated which articles of The International Bill of Rights are covered by Australian law. Is this confusion not sufficient reason for a Bill of Rights?
Richard Woods says that "the most effective bulwark against the abuse of human rights is a strong democracy." In support of this, he quotes Darryl Williams, a former (Howard Government) Federal Attorney General as saying ""democratic institutions are the bedrock of human rights protection in Australia." He also says that "Australians currently enjoy substantial human rights protections, which are secured by statute, common law, the Constitution, our democratic system, and, most importantly, a culture that respects liberty and equality.'
In prosecuting their "war on terror" the worlds greatest strongest and most established democracies, including the Australian Government within which Darryl Williams was Attorney General, legislated to limit our Rights and the Geneva Convention was said to be inapplicable on the basis that war had not been declared. The United Nations was denigrated. People suspected of being terrorists, including Hamoud Habib, an Australian citizen, were "rendered" to places where they could be tortured out of sight. Prisoners of the United States of America, including David Hicks an Australian national, were subjected to degrading treatment and with them, the USA and by association, Australia, were dragged into the mire. Australia, apparently heard nothing, saw nothing, said nothing. Another set of reasons for an Australian Bill of Human Rights.
In the same period, boats overloaded with ‘illegal" asylum seekers, families including children seeking refuge in Australia from the undeclared "wars" were intercepted by the Australian Navy and towed to Australian territories somehow excised from Australian law where they were held in detention for extended periods of time and denied their basic human rights. Contracts were negotiated with other pacific nations for the same purpose.
Neither the American democracy, nor the Australian democracy with its "culture that respects liberty and equality" failed to prevent these grotesque abuses of human rights. Indeed we, the people were not supposed to know that they were happening. And the behaviour of our politicians disgraced us.
The Australian Bill of Rights should place obligations on an Australian Government such that such abuses cannot happen again.
Richard Woods and others, remind us that judges are unelected and "Therefore their significant role in articulating human rights is undemocratic. Furthermore, the involvement of judges in this sort of task creates problems for the judicial system itself, because judges are dragged (often reluctantly) into highly politicized disputes". Richard believes that politicians, not the judiciary should adjudicate human rights matters "The implementation of a Bill of Rights is unnecessary. It would force the judiciary into a role that should be played by elected politicians."
It seems to me that Richard and others don't want the separation of powers, a keystone principle of our democracy, to apply to human rights. Far from being undemocratic, the independence of the judiciary from the executive, is a "bulwark" of democracy. To whom would Richard Wood (and also incidentally, Bob Carr), have us appeal when we have been dealt a human rights injustice, a panel of politicians handpicked by the Premier or Prime Minister? Richard's proposal smacks of the Star Chamber and we know how that evolved.
Richard raises the alarm about entrenchment of Human Rights in the Constitution. I agree that our Bill of Rights should not be embedded in the Constitution but that it should be simply an Act of our Parliament adjudicated in our courts by, yes, a specialist judiciary. This being accepted, remaining issues include the extent to which the judiciary is involved in the operation of the Act and whether there should be remedies for transgression. I'm on the side of those who argue for judicially administered remedies. How can a wrong be righted without compensation for the losses incurred? How can a law be effective if the law breaker does not suffer an appropriate punishment for his transgression? "Commit the crime, do the time" is a simple, easily understood and highly effective principle.
In closing, if I were asked to give one single reason why Australians need a comprehensive legislated Bill of Human Rights I would say "Because there are many people who do not want Australians to be so protected."
Borrowing from Thomas Jefferson: Ensuring that all people are treated by those who serve them, in accordance with the principles of basic human rights at all times, in all contexts and circumstances, requires eternal vigilance.
foggy
June 28, 2009 at 7:04 pm
for easy comparison
thanks for eliciting what should be included in the australian bill of human rights.i feel that a technicality of a click to display would be just fine to get the full list of the international bill of human rights which is mentioned in your blog.this will help identify with clear resolution how things which are meant for everybody at international level get needed to be modified according to a country' s own local perspective focussing.
Bill Miller
June 29, 2009 at 12:41 am
International Bill of Human Rights
Thankyou Foggy, for suggesting a link to the International Bill of Human Rights. Here it is:
http://en.wikipedia.org/wiki/International_Bill_of_Human_Rights