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The protection of human rights – time to re-open the debate

Cover Story

Cite as: (2003) 77(4) LIJ, p.36

Australia has played an important part in the development of international human rights law, but is now lagging behind and failing to honour its treaty obligations. It needs a systematic legal regime to protect human rights and to provide remedies if they are breached, including by governments.

By Dominique Saunders and Jamie Gardiner

In recent years, issues of mandatory sentencing, reconciliation and the Stolen Generation, the treatment of asylum seekers including the detention of children and the so-called counter-terrorism laws that followed 11 September 2001 and the Bali bombing have demanded a renewed focus of attention on human rights. It is within this social and political environment that surveys show Australians consider constitutional protection of human rights a top priority.[2]

The Australian Constitution, however, guarantees only a small number of express rights,[3] which have been narrowly interpreted by the courts.[4] Protection of human rights in Australia is thus mainly by statute. It is piecemeal and subject to judicial “reading down”,[5] and vulnerable to legislative and policy changes.[6]

The express incorporation by domestic legislation of Australia’s human rights obligations under international law has consisted principally in the enactment of anti-discrimination legislation, rather than guaranteeing civil and political liberties.[7] Moreover, these laws can be amended without reference to the framework of human rights law.

AUSTRALIA’S STATED COMMITMENT TO HUMAN RIGHTS

Australia has a strong history of involvement with the development and recognition of human rights, nationally and internationally. Australia’s Dr HV Evatt was president of the General Assembly when it proclaimed on 10 December 1948, without dissent, the Universal Declaration of Human Rights (UDHR),[8] in the drafting of which he played an active role.

The UDHR is a statement about being human, not about rights that are enforceable in a court. As Article 1 says, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Every human being holds these rights, even if they are being breached, violated or denied.

The major treaties through which Australia – that is, the commonwealth government, after consultation with and the agreement of the state (and latterly territory) governments – has promised to uphold, respect and protect human rights are:[9]

  • the International Covenant on Civil and Political Rights (ICCPR), and its Optional Protocols;
  • the International Covenant on Economic, Social and Cultural Rights (ICESCR);
  • the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
  • the Convention on the Elimination of All Forms of Racial Discrimination (CERD);
  • the Convention on Rights of the Child;
  • the International Labour Organization (ILO) Convention 111 on Discrimination in Employment and Occupation;
  • the Convention Against Torture; and
  • the United Nations (UN) Charter itself.

A founding principle of the UN Charter is “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women”. The rights acknowledged in the UDHR and elaborated in these international conventions are essential elements of a civilised society. They set a standard for the behaviour of individuals and between groups of people but are not themselves law.

The treaties contain more detailed and minutely subdivided elaborations of the rights and freedoms acknowledged in the UDHR, with more specific legal obligations on government. When governments accept these obligations, as Australia has, and carry them out, as Australia has in part, they convert the moral, aspirational human rights of the UDHR into specific legal claims and duties, subject to administrative and legal enforcement procedures and methods of settling conflicts and competing rights.

Moral equality is not enforceable by itself, no matter how universally declared, but it remains a guiding principle nonetheless. Australia, however, together with most other countries, has freely and publicly promised to respect human rights, to uphold them and to provide everyone in Australia with an effective remedy when they are breached. This is the meaning of the human rights treaties that Australia is party to.

Yet Australia is alone among Western democracies (and many others) in not providing for legislative or constitutional protection of minimum human rights in accordance with international law. The country, therefore, lacks a coherent rights jurisprudence founded on basic principles of human rights.

This lack is the more remarkable as Australia has publicly accepted specific legal obligations under the ICCPR which it has yet to honour. Australia has undertaken “to respect and to ensure to all individuals... the rights recognised in the” ICCPR.[10] Indeed, Australia has promised “to adopt such laws or other measures as may be necessary to give effect to [these] rights”.[11] And perhaps most pertinently, Australia has promised the world to “ensure that any person whose rights or freedoms... are violated shall have an effective remedy”.[12] (With the exception of this obligation to provide individual remedies, similar legal obligations have been accepted by Australia under the ICESCR.)

Much existing law does indeed comply with, and contribute quietly to implementing, these obligations, none of which are actually unfamiliar to our legal and national traditions. That is, our laws and practices on the whole respect our human rights and seldom expressly violate them.[13] Australians do indeed have a strong sense of social justice and are proud to proclaim a culture of the “fair go” – even if the fair go has not until recently, and still unevenly, extended to women, indigenous Australians, or lesbians and gay men, for example. Yet the lack of any systematic implementation of our legal obligations under human rights law means that there are gaps and injustices in law, just as in the cultural “fair go”, and there is no “effective remedy”, despite the availability of individual communication with the Human Rights Committee under the First Optional Protocol to the ICCPR. A similar situation in the UK, where the lack of effective remedies meant frequent and embarrassing resort by individuals to the European Court of Human Rights, led to that country’s adoption recently of a comprehensive Human Rights Act.

Australia needs to do likewise. Australia needs to provide an effective mechanism to carry out its obligation to respect and protect our human rights, and to provide an effective remedy in case of breach. That is, we need, whatever we call it, a “Bill of Rights”.

PROPOSALS FOR A BILL OF RIGHTS IN AUSTRALIA

It is 30 years since Lionel Murphy attempted a statutory Bill of Rights;[14] in the mid-1980s another attempt also failed.[15] In recent years the issue of Bills of Rights has again been under consideration in a number of Australian states and territories.

New South Wales
In 2001, the NSW Legislative Council’s Standing Committee on Law and Justice rejected a proposal for a Bill of Rights in New South Wales. The report of the Committee[16] found that although some arguments in favour had merit, on balance a Bill of Rights for NSW would not be in the public interest. This finding we firmly disagree with; it seems to have been unduly influenced by fears for Parliamentary sovereignty, rather than exploring ways to best protect human rights in that context. The Committee did, however, recommend establishing a Parliamentary Scrutiny of Legislation Committee, whose role would be to assess the rights consequences of proposed legislation.

Australian Capital Territory
The consideration of the introduction of a Bill of Rights was an election promise of the current government of the Australian Capital Territory. The Legislative Assembly of the ACT is currently undertaking an inquiry, chaired by Professor Hilary Charlesworth of the Australian National University.[17]

Victoria
In 2002, the Constitution Committee Victoria recommended that the fundamental provisions of the Constitution be entrenched (so as to require referendum) and that the human rights of Victorians, based on the UDHR and other international instruments, should be recognised as guiding principles in the Constitution.[18]

Fifteen years earlier, the Legal and Constitutional Committee’s Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights recommended that the Constitution Act 1975 be amended to include a Declaration of Human Rights and Freedoms. This did not occur, but it did in time lead to the Scrutiny of Acts and Regulations Committee, whose role includes to identify whether legislation:

“(i) trespasses unduly on rights or freedoms; or

(ii) makes rights, freedoms or obligations dependent on insufficiently defined administrative powers... or non-reviewable administrative decisions; or...

(iv) inappropriately delegates legislative power”.[19]

WHAT KIND OF BILL OF RIGHTS COULD WE HAVE?

Different models of legal protection of human rights may be seen in the US, Canada, New Zealand, UK and South Africa.[20]

The principal options for a Bill of Rights are either an entrenched or a statutory Bill of Rights. One that is entrenched could only be amended by a procedure set out in the Bill, for example through a special vote of the Parliament or by a referendum. This is the version adopted in the US, South Africa and Canada.

A statutory Bill of Rights would be ordinary legislation that could be amended in the usual ways. Such a Bill of Rights could perhaps claim limited paramountcy over future legislation, but could be overridden by an express statement of Parliament. Both the UK and New Zealand have adopted this option.

Either option would, for example, guarantee better protection of human rights for asylum seekers, indigenous people and same-sex couples. It would also encourage closer scrutiny[21] of potential breaches of civil liberties such as so-called counter-terrorism legislation and the associated proposal for detention of individuals by the Australian Security Intelligence Organisation (ASIO) without the person having access to legal representation.

A major issue in the debates over an Australian Bill of Rights has been the fear of upsetting the balance of power between Parliament and the courts. The democratic principle that the people make the laws through their representatives freely chosen in Parliament is at odds with the human rights principle that the laws made in Parliament should be constrained from infringing the human rights of the people, and inevitably therefore, of weak and unpopular minorities. That is, a Bill of Rights these days is about protecting individuals from the “tyranny of the majority”, rather than, as once, protecting the people against the tyranny of the monarch. The US model, which removes democratic debate from the political into the legal process, does indeed have real problems. The UK model empowers the court to declare legislation inconsistent with human rights, and requires the Parliament to act, whether to remedy the breach or to declare that the breach of human rights is to persist deliberately. The Canadian model, by allowing the legislature to justify to the judiciary limitations on rights and allowing the legislature to temporarily override the operation of the Charter where the judiciary has found a violation, somewhat reconciles the democracy and human rights tension.

It is important to debate the model of rights protection that best suits the Australian context. The starting point, however, must be an acknowledgment that, at present, there is no effective, systematic protection of human rights in Australia, and there should be. Indeed, the failure to provide it is in breach of international law and the obligations Australia has freely taken on, with bipartisan support and the agreement of all the states and territories.[22]

At the same time, while advocating a Bill of Rights to repair this failure, we must emphasise that enacting a Bill of Rights does not end the matter, nor is it the only measure that Australia should take. Equally important in the protection of our human rights is the active and continuous promotion in every facet of society of the need to respect each other’s human rights. A Bill of Rights is a necessary tool, but a people who understand, respect and honour their human rights, and freely accept their obligations to each other, is the ultimate goal.

CONCLUSION

Australia played an important role in the early development of the international human rights system that grew out of the horrors of World War II. In recent years, at a national level, we have developed a regrettable reluctance to play our part in that system and have seen a rolling back of our national commitment to human rights.

As our society gets more complex, however, and as the forces of economic globalisation challenge the earlier internationalisation of human rights, the need for effective and systematic protection of human rights in this country is more pressing than ever. The adoption of a Bill of Rights is a necessary step in that process.

What is more, the debate about a Bill of Rights can itself make a valuable contribution to the wholehearted public understanding and endorsement of a culture of human rights that is, in turn, necessary for a truly fair and democratic society.[23]

Top pick at Commonwealth Law Conference

The protection of human rights is a topical subject with one of the most popular sessions at this month’s 13th Commonwealth Law Conference being “Enhancing Democracy: Human Rights Protection and the Common Good”.

This session, to be held on Wednesday, 16 April, will explore differing models of human rights protection in the Commonwealth and the value of rights in defining the common good. Topics to be considered include the respective roles of Parliament and the courts in protecting human rights, and mechanisms available for resolving conflicting rights and tensions between rights and broader community interests. Rapporteur for the session will be Erskine Rodan, chair of the Bill of Rights Committee, Law Institute of Victoria. Speakers will be Lord Phillips of Worth Matravers (Master of the Rolls), Judge Albie Sachs (South African Constitutional Court) and Karpal Singh (Malaysia). Judge Sachs has been a leader in the struggle for human rights in South Africa and took an active part in negotiations for a new Constitution for South Africa and Mr Singh is one of Malaysia’s most prominent defence lawyers and a leading human rights lawyer. This session will be chaired by Professor Spencer Zifcak, Professor of Law at La Trobe University.

Universal Declaration of Human Rights – A shorthand list

“...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...”

Freedom and equality in dignity and rights * Equality without distinction of any kind * Life, liberty and security of person * No slavery * No torture * Recognition as a person before the law * Equality before the law and equal protection of the law * The right to an effective remedy * No arbitrary arrest, detention or exile * Fair hearing * Presumption of innocence; no retrospective criminal laws * Privacy * Freedom of movement * Asylum * Nationality * Marriage and family * Property * Freedom of thought, conscience and religion * Freedom of opinion, expression and information * Freedom of peaceful assembly and association * Democratic participation and fair elections * Social security * Work, with just conditions, fair remuneration, safety net, trade unions * Rest and leisure, fair hours and paid holidays * Adequate standard of living, food, clothing, housing and medical care and necessary social services, protection of mothers and children * Education * Participation in cultural life, and to benefit from one’s cultural production * A social and international order where these rights and freedoms can be fully realised * Duty of respect for the rights and freedoms of others * No right for any state, group or person to undermine these rights and freedoms.


DOMINIQUE SAUNDERS is a special counsel with Russell Kennedy Solicitors and chair of the Law Institute’s Administrative Law and Human Rights Section.

JAMIE GARDINER is a member of the Equal Opportunity Commission and the Mental Health Review Board, and a vice-president of Liberty Victoria.

The authors are members of the Bill of Rights Committee, a coalition of the Law Institute of Victoria, Liberty Victoria, International Commission of Jurists, Castan Centre and Federation of Community Legal Centres chaired by Erskine Rodan. The authors would like to thank Nicole Hogg and Julie Debeljak for their constructive comments, but the views expressed are entirely those of the authors.


[1] For an excellent overview see the official 1998 Human Rights Manual http://www.dfat.gov.au/hr/hr_manual/index.html.

[2] “Human rights more important than republic, study shows”, media release, Swinburne University of Technology, Institute of Social Research, 31 October 2002; and see Mike Salvaris, “Community well-being and local democracy”, Queensland Local Government Community Services Association of Australia annual conference, 31 October 2002.

[3] “The orthodox view . . . is that it contains virtually no rights provisions, and that those it does contain are not of great significance . . . Traditionally, . . . the commonwealth Constitution contains only four or five rights – the right to jury trial (s80), the right to freedom of religion (s116), the right to freedom in interstate trading (s92), the right to have just terms paid for commonwealth acquisition of property (s51(31)) . . . ”, Peter H Bailey, Human Rights – Australia in an international context, 1990, Butterworths, at 79.

[4] Debeljak, Julie, “Rights protection without judicial supremacy: a review of the Canadian and British models of Bills of Rights” (2002) 26 Melbourne University Law Review, at 288.

[5] Note 4 above, at 289.

[6] Note 4 above, at 290; and note the Howard government’s plan to amend the Sex Discrimination Act to restrict the rights of unmarried (and lesbian) mothers to non-discriminatory access to reproductive technology services: Sex Discrimination Amendment Bill (No. 1) 2000.

[7] At the commonwealth level, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Human Rights and Equal Opportunity Commission Act 1986 (and its predecessor the Human Rights Commission Act 1981) partially implement obligations under CERD, CEDAW and the ICCPR, ICESCR and CDEO (ILO 111); the Equal Opportunity Act 1995 (Vic) (and its predecessors back to 1977) implement in Victoria many of the obligations assumed by Australia under these treaties, albeit in fairly circumscribed areas and without express reference to them, and every state has similar statutes.

[8] See http://www.identitytheft.net/why-the-udhr-still-matters/.

[9] The Joint Standing Committee on Treaties website at http://www.aph.gov.au/house/committee/jsct/ and its links to the Australian Treaties Library and related material provide an excellent source of information. The treaty process was formalised in the mid-1990s, but consultation with the states did take place before then.

[10] ICCPR Article 2(1).

[11] ICCPR Article 2(2).

[12] ICCPR Article 2(3)(a).

[13] Recent examples of express violations included, in Queensland, the Bjelke-Petersen regime’s restrictions on political rights and the Tasmanian anti-gay laws held to be violations of the ICCPR: Toonen v Australia, CCPR/C/50/D/488/1992, 4 April 1994. Current examples include, in our view, mandatory detention of asylum-seekers and express discrimination in tax and superannuation law against same-sex couples.

[14] Before joining the High Court, Senator Murphy was Attorney-General in the Whitlam government. The Bill is at http://www.aph.gov.au/library/intguide/law/rights1973.htm.

[15] Australian Bill of Rights Bill 1985 (http://search.aph.gov.au/ and enter the title), introduced by then Attorney-General Gareth Evans.

[16] A NSW Bill of Rights, Standing Committee on Law and Justice Report, 3 October 2001, p17.

[17] See http://www.act.gov.au/rights.

[18] Report of the Constitution Committee Victoria, A House for Our Future 2002, at page 71.

[19] Parliamentary Committees Act 1968, s4D, and see http://www.parliament.vic.gov.au/sarc/role.htm. Though worthwhile, it falls far short of the “effective remedy” the ICCPR requires.

[20] See, for example, Bill of Rights Act 1990 (New Zealand): http://rangi.knowledge-basket.co.nz/gpacts/public/text/1990/an/109.html; Human Rights Act 1998 (UK): http://www.hmso.gov.uk/acts/acts1998/80042—a.htm; Canadian Charter of Human Rights and Freedoms: http://laws.justice.gc.ca/en/charter/; Constitution of the Republic of South Africa 1996: http://www.polity.org.za/govdocs/constitution/saconst.html.

[21] Changing the culture of decision-making and administration in this way is an essential function of a Bill of Rights. See for example the manual “Guidance for Northern Ireland Departments” produced for the introduction of the Human Rights Act 1998 (UK) at http://www.dhsspsni.gov.uk/publications/archived/2000/hract.pdf.

[22] Under Article 2(3)(a), note 12 above, Australia has undertaken “to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy”, an obligation clearly not yet fulfilled. For example, indigenous Australians whose rights were taken away when Parliament derogated from the Racial Discrimination Act 1975 in order to extinguish native title have no “effective remedy” in Australia. The failure to provide such a remedy generally violates the ICCPR, as does the specific denial of rights involved (Articles 2(1) and 26, for example), and it also violates CERD.

[23] The most recent attempt, the Australian Democrats’ Parliamentary Charter of Rights and Freedoms Bill, was introduced by Senator Meg Lees on 27 September 2001 (see http://search.aph.gov.au/ and enter the title). Previous attempts to bring in a Bill of Rights certainly generated debate, but little understanding, as with Lionel Murphy’s 1973 Bill, note 14 above, and the 1985 Evans Bill, note 15 above. We consider it vital that the next attempt to introduce a Bill of Rights consider its public education strategy as integral to the process, and at least as important as the passage of the Bill itself.

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